Given the popularity of morning teas, bake sales and the sale of goods at onsite cafés or canteens which often brings communities together, institutions and organisations must be aware of their positive obligations to ensure the safety of the food they serve. 

Food is often a salient feature in our interactions within our community. With this, however, comes a great duty of care to ensure that food is prepared safely to avoid the well-known risks of foodborne illness, such as food poisoning. 

Crucially, institutions can face exposure to civil proceedings for compensation in cases involving food-related illnesses caused by negligent conduct. In light of this, understanding the factors that establish liability for schools, churches, or businesses is essential in the mitigation of risks and to avoid the consequences of a breach.

Broadly, to claim compensation for foodborne illnesses caused by negligent conduct, three conditions must be satisfied: 

1. the institution must owe the individual or group a duty of care; 
2. the institution must have breached this duty; and 
3. by breaching their duty, the institution has caused the individual's or group's loss. 

There are certain relationships where it is well-recognised that a duty of care is owed. These include, but are not limited to, the relationship between: 

1. an employer and employee; 
2. school and/or school teacher and student; and 
3. occupier and visitor. 

Beyond these defined categories, a court, in determining whether a duty exists, will examine whether the relationship between the institution and the affected party is such that the institution should be legally responsible to the other. 

In Comcare v Commonwealth (2009) 184 IR 441, the court held that the Australian Defence Force (ADF) owed a duty to school pupils in the Army Cadets and their parents to ensure that the contents of ration packs containing food allergens were disclosed, particularly where cadets had known food allergies. The ADF was fined $210,000 for failing to instruct and monitor the consumption of these ration packs, which resulted in the death of a student who suffered an anaphylactic reaction.

Once a duty of care is established, the hygiene, food and safety practices of the institution will be scrutinised to determine whether reasonable precautions were taken to avoid the risk of foodborne illness.  

In Gibson (A Pseudonym) v Askim Pty Ltd t/as Askim Trust t/as Central Café Group [2024] ACTSC 203 (Gibson), a casual kitchenhand at a café contracted salmonella after handling raw chicken (the risk) and was hospitalised. The court found that not only did the kitchenhand's employer owe a duty of care to reasonably avoid the risk, but also that the employer had breached this duty by failing to implement appropriate hygiene standards. Of note was the employer's failure to:

1. provide hand soap to employees preparing food; and 
2. keep raw meat in refrigerators at a correct temperature. 

The court considered that had the abovementioned precautions been taken, the risk of salmonella would have been significantly reduced. 
 
Evidence of other patrons becoming unwell after consuming food from the café also assisted the court in finding that the employer was liable in negligence for the worker's injuries and accordingly awarded her $65,573.34 in damages. 

A causal link must exist between the claimants foodborne illness and the institution's negligent conduct.

In Samaan (by her tutor Samaan) v Kentucky Fried Chicken Pty Ltd [2012] NSWSC 381, the plaintiff allegedly suffered from salmonella after eating a KFC 'Twister' chicken wrap, which tragically led to brain damage and quadriplegia. The question before the court was whether the defendant's alleged negligence in preparing the wrap caused the plaintiff's injury. The court concluded that KFC employees had failed to comply with hygiene guidelines, resulting in cross-contamination of the chicken after it was cooked. The KFC 'Twister' wrap that the plaintiff consumed was identified as the "only, and at least the most probable" source of the salmonella bacteria that caused her illness.

However, in the Gibson case (noted above), the court noted that it is not "fatal" to a plaintiff's case "if a particular item of food which caused the food poisoning could not be identified", holding that in circumstantial cases, inferences may be drawn as to the source of the exposure. 

While there is no clear formula to be followed by institutions when it comes to avoiding claims stemming from negligent food preparation, there are steps that can be taken to mitigate liability including: 

1. establishing clear food safety and hygiene policies which outline procedures for food preparation, serving and storage; 
2. reviewing and ensuring compliance with food standard codes;
3. keeping detailed records of food sources, preparation methods, and serving practices; 
4. conducting regular audits of food preparation areas and equipment; 
5. creating a system for reporting any food safety incidents or concerns; and 
6. ensuring that handwashing facilities are available and that all staff and volunteers are trained to use them effectively. 

Institutions may also wish to consider obtaining appropriate public liability insurance that covers food-related incidents. 

1. Foodborne illnesses, such as food poisoning, are a well-known risks associated with food preparation; 
2. Noncompliance with food safety standards can lead to fines and penalties from regulatory authorities, as well as potential civil claims for compensation from affected individuals; 
3. Effective risk mitigation is crucial; by implementing proactive measures, institutions can significantly reduce their liability for foodborne illnesses and create a safer environment.