Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd [2012] NSWSC 381

This case turned on factual and expert evidence about the probable source of the Salmonella. Ultimately, Rothman J accepted it was due to the cross contamination at the KFC owned store and not another source. In finding for the plaintiff Rothman J found the employer liable for the aberrant and skylarking behaviour of the employees who did not fully understand the implications of their negligent conduct, despite the thorough and strict processes in place.

250. Given the nature of the KFC audits and procedures, real questions arise as to the extent to which vicarious liability ought to attach to the action of those departing from such procedures, in some cases deliberately. If this store were a franchise store, KFC would most likely not be liable, having taken all practical steps to ensure compliance with the procedures. However, this was not a franchise store. Further, given the improbability of an infective dose from KFC generally, if there were another possible source of infection on the evidence that I accept, liability could not be imposed on KFC.

251. Ultimately, the law enforces a policy that employers are liable for the acts of their employees. This policy has been implemented at least since 1701: see Hern v Nichols (1701) 1 Salk 289 per Holt CJ and the modern approach is described recently in Hollis v Vabu (2001) 207 CLR 21. But the policy basis for such liability, particularly in circumstances where steps of the kind here have been taken, makes more obvious the call for no-fault liability insurance to cover disabilities. The determination of liability on a business for the aberrant and disapproved conduct of its employees is unfair. Ultimately, it is less unfair than the liability falling on the victim, who has, on the balance of probabilities, contracted a disease from goods purchased and on which she should be able to accept were edible.

260. Lastly, there is a cause of action in negligence, governed by the Civil Liability Act 2002, and of particular current relevance, ss 5B, 5C and 5D thereof.

261. As these reasons and the evidence from KFC itself, and the experts, make clear, the risk of harm from Salmonella is foreseeable. Steps have been taken by KFC to ameliorate the risks. The risk is not insignificant and no reasonable person in the position of KFC would decline to take the ameliorating steps, particularly having regard to the possibility of harm and the burden in taking the steps, even bearing in mind the utility to the community of the supply of these products.

262. In this case, the general requirements of KFC, if followed, eliminate the risk of contamination. The contamination has occurred because of the failure of one or more employees of KFC to adhere to that procedure. The failure to adhere to the procedure was negligent and, more probably than not, given the infective doses most likely to have been on the food, and the steps otherwise taken by KFC to avoid contamination, involved food coming in contact with flour (or some other substance) that was old (in the sense of hours) and significantly affected by Salmonella. I infer the employee ‘dusted off’ the chicken leaving small clumps of infected ‘flour’ on the chicken. The Salmonella cells continued to multiply before and after sale and were spread by the use of sauce and other such additives.

263. Frankly, there is little any employer can do about behaviour of an employee inconsistent with the procedures mandated by the employer, other than better supervision or better training. There is some evidence, which I accept, that some employees were unaware of the full consequences of a breakdown in the system that was to be implemented. Such knowledge would no doubt impact on the conduct of employees. Nevertheless, the conduct of the employee was negligent and KFC, as the employer, is vicariously liable for the negligence: Hollis v Vabu, supra.

264. The relationship between KFC, Mr Samaan and Monika created by the purchase and sale of the product and the consumption of the product as a result of the sale creates a duty of care in KFC to persons in the class of those intended to consume the product: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Adeel Palace v Moubarak (2009) 239 CLR 420; Donohue v Stevenson [1932] AC 562; [1932] All ER Rep 1.

265. But for the negligence of the staff, the harm to Monika would not have occurred: Adeels Palace, supra. Liability for the damage to Monika arises in negligence as well.

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Brisbane Barrister – David Cormack

 

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