The outbreak of Listeriosis in South Africa has caused not only fear and concern but numerous deaths. Cited as one of the worst outbreaks in the world, it took several months to pinpoint a source. Now that a major processed meat producer has been targeted, there is still some way to go in evaluating this facility as the key or only source, and some confusion as to the possible recompense for those who have suffered because of what may be negligence.

What is listeriosis and why might one contract it?

Listeriosis is a bacterium that, usually due to unhygienic conditions, can infect several common foods: unpasteurised milk, soft cheeses, vegetables, processed meats, smoked fish products. As it can be found in water and in soil, it can infect both animals and plants – and therefore anyone can contract this infection. Symptoms and dangers:

• Fever, nausea, mild to severe gastroenteritis.
• Headaches, confusion, stiff neck and convulsions.
• People with weak immune systems are particularly vulnerable such as elderly people or pregnant women. Those with HIV, diabetes, cancer, chronic liver or kidney disease are also highly at risk.
• In pregnant women particularly, the immune system is weakened and listeriosis can result in a miscarriage or stillbirth, premature delivery, or meningitis in the newborn – leading to permanent disability or death.

Who can you blame for your Listeriosis?

Listeriosis is often the result of poor hygiene at any point along the food production chain – from farms to abattoirs, to transport and process facilities. Problems with accrediting blame include:

• An incubation period of sometimes up to 70 days in an infected person, which makes it extremely difficult to track what the patient ate and where at the time of the infection.
• Once the source is established, there may be several foods to investigate, any one of which could be the culprit.
• The bacterium can live in nooks and crannies and can survive cleaning with detergents. Nevertheless, industrial kitchens should be decontaminated regularly.
• As it is spread randomly, testing is tricky, with one result clear and the next positive.
• Listeria can continue to multiply in uncooked food kept in the fridge at temperatures as low as 4 degrees Celsius. What does kill it though, is heating above 70 degrees Celsius. So cooking everything well, is good.
• There is no vaccine against infection.
• Good basic hygiene, safe food handling and preparation, and carefully monitored storage both through the food chain and at home are vital to preventing this disease from breaking out and spreading.

You, Listeriosis and the Consumer Protection Act

If you have been seriously affected by this disease, even suffering the death of a family member, you need to know your rights and what action you may be able to take against persons or entities deemed responsible for the infection.

• Firstly, the consumer is not required to prove negligence by the supplier, producer, importer or distributor, but has to prove that the food sold to them is tainted and caused them to become ill.
• Consumers are protected from harm that may arise from product failure, defect, hazard or inadequate instructions. Therefore in the case of listeriosis, the consumer only has to prove that the food causing the harm was contaminated i.e nexus, in order to succeed in a claim against a retailer, supplier, manufacturer, and the like.
• As it is important to show that the damages were suffered because of the product’s shortcomings, customers will therefore need to collect as much evidence as possible by having tests conducted at a medical facility where it can be proved that the tainted food is directly linked to their being ill.
• The supplier and any other party in the supply chain will be liable, regardless of what steps they took to prevent the occurrence. This includes the whole supply chain, from farmer to wholesaler; wholesaler to retailer; importer (whether local or foreign!) to a consumer.

Under these circumstances, what can you claim?

Special damages (liquidated damages) such as:

• illness, pain and suffering
• past and future medical expenses
• past and future loss of income
• in the unfortunate case of death of the breadwinner, dependants may claim loss of support as well as funeral expenses

Simpsons – always on your side

At Simpsons we offer the ‘no win, no fee’ model to all our clients – but we have also adopted innovative legal models to ensure every South African is able to receive the advice and support they need. Specialising in personal injury claims resulting from motor vehicle accidents, medical negligence and product and public liability, we care about our clients, focusing on personal considerations as well as facts and procedural knowledge. It makes us the firm with ‘heart’. Our point of view is clear: the protection of consumer rights is fundamental to a just and progressive society.

Find us at: www.simpsons.co.za