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Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd [2012] NSWSC
381
Background
The plaintiff, Monika Samaan (by her tutor Mr Amanwial Gergis
('Emanuel David') Samaan)) sued Kentucky Fried Chicken
(KFC) for damages as a result of contracting
Salmonella Encephalopathy in 2005. The plaintiff alleged that she
ate a chicken "Twister" purchased by her father from
KFC's Villawood store and that the Twister contained the
Salmonella bacteria that caused her injuries.
The court heard that the plaintiff and her family consumed a
number of suspect meals from KFC within the incubation period for
Salmonella Encephalopathy over a three day period in October 2005.
Every member of the plaintiff's family suffered from Salmonella
poisoning and all were hospitalised, however the plaintiff was by
far the most seriously affected by the poisoning.
As a result of being infected with Salmonella bacteria, the
plaintiff suffered serious injuries including organ system
failures, septic shock, severe brain injury and spastic
quadriplegia. As a consequence the plaintiff is now severely
physically and intellectually disabled requiring 24 hour attendant
care.
The proceedings
The proceedings before the NSW Supreme Court were contested on a
factual basis. At issue were whether the plaintiff's father had
in fact purchased a Twister from KFC and if so, whether the Twister
had caused the Salmonella Encephalopathy that led to the
plaintiff's injuries.
The court heard evidence from a number of lay witnesses as well
as a large body of expert opinion evidence, upon which the court
ultimately found in favour of the plaintiff.
This was despite the evidence presenting a number of
difficulties for the plaintiff's case which necessarily had to
be overcome. These difficulties included:
Numerous evidential gaps and inconsistencies in the
plaintiff's case, such as contemporaneous evidence of food
history that was inconsistent with the evidence led at trial and
inconsistencies around the sharing of food claims by the
family;
contemporaneous documentary evidence which was inconsistent
with the plaintiff's case, including the sales records of the
Villawood store, as well as medical notes and health and food
authorities notes, correspondence and reports (in particular
concerning the food history of the family); and
the inherent improbability established by the expert evidence
that of all the foods eaten by the family in the relevant period, a
single, small shared item from KFC caused the poisoning to four
people, particularly given there were no records of other KFC
customers falling ill in the relevant period.
The decision
The decision ultimately rested on the Court's factual
determination that the meal purchased at KFC (and in particular the
Twister) was the only common meal eaten in the relevant period by
those members of the family who had fallen sick. The Court held
that given the improbability of an infective dose from the shared
twister, had there been another possible source of infection,
liability could not have been imposed on KFC.
A significant aspect of the decision for KFC was that it called
into question the implementation of KFC's standard procedures
at the Villawood store. In particular, the standards set by KFC in
relation to food handling and preparations were found to have not
been met during the relevant period. Furthermore, the recording of
sales at the Villawood store was held to be unreliable.
These were important factual findings as there was a consensus
among the expert witnesses that had KFC's standard food safety
and hygiene procedures been followed it would have been almost
impossible to contract Salmonella poisoning from any of KFC's
products. Further, the point of sale data adduced at trial would
otherwise have discounted the claim by the plaintiff's father
that he had purchased a Twister from the Villawood store as he had
claimed.
KFC have filed a notice of intention to appeal with the NSW
Court of Appeal.
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