Needle in a Burger

Transcript

[05:59][Eon] Now, we have a double dose for you today because joining us now is Janusz Luterek from, also from Hahn & Hahn, and we're going to talk about a recent case that was in the Western Cape High Court where they overturned a finding that the Stellenbosch restaurant was liable after a diner swallowed a needle-like object in her burger. The court held that negligence had not been proved and that the restaurant had taken reasonable precautions. Telling us more now is Hahn & Hahn's Janusz Luterek. Janusz, welcome.

[06:29][Janusz] Hi, good afternoon. Good to be talking to you again, Eon, and especially with this interesting case being in the news.

[06:37][Eon] Now, Janusz, I want to ask you firstly: is a restaurant automatically liable for an object in food it serves that actually causes injury?

[06:47][Janusz] So, you know, recently there was this case, it was earlier this week, in fact, that was reported, where Beyerskloof Wine Estate Wine Bar, I think it was a restaurant on the wine estate, had, there was an allegation by a member of the public that they bought a burger, and while they were eating a burger, a needle got stuck in their throat, and, as a result of that, they were hospitalized, and they eventually sued the restaurant. And in the first court, the court ruled that the restaurant was liable to pay the consumer, but then, on appeal, this got overturned. And this is very interesting because one would immediately think, but surely you bought the burger, you ate it, the restaurant must be responsible. But that is not always the case, and there are some cases where this is, in fact, would not be the liability of the restaurant. So, in the particular case we're talking about, which was Williams versus Beyerskloof Wine Bar, what happened there was that the restaurant could show in court that it had all the training for the people, its kitchen was properly run, hygienically run, etc. They had all systems in place, and therefore they were not what we lawyers call negligent. They didn't omit to do something that they should have done, and that led them to the needle being there. So, they didn't actually deny specifically that the needle was there, although they said that the consumer couldn't prove that the needle came out of the food. And if you read the case, they talk about that maybe the needle was in the person's jersey or somewhere else. But the key defense was: "We didn't do anything wrong, we run our kitchen properly." That is the way that the case was being run by the attorneys for the claimant, and the court found that, under those circumstances, the restaurant was not liable.

[08:47][Eon] Very interesting. Janusz, I also want to ask you: what is the role of the Consumer Protection Act, the CPA, in such matters? I mean, does it provide any defenses to the restaurant or only rights to the consumer?

[09:01][Janusz] So, we're getting to a very interesting point. In the case I've just spoken about, for reasons I don't understand, and I wasn't there, obviously, the legal team of the lady who swallowed the needle never argued about the rights that the consumer has under the Consumer Protection Act. They tried to argue that the restaurant was negligent, and the negligence of the restaurant caused the harm of the consumer, and they lost on that basis. The Consumer Protection Act gives a lot more protection to consumers because the Consumer Protection Act says that, if you cause harm to a consumer, it doesn't matter whether there was any fault on your part. It's what we call no-fault liability. What the consumer has to show is that the needle was actually in the food and that they ate it, thinking, obviously, it's normal food. Once they've proven that, it becomes very difficult for the restaurant not to be liable. But it's a case you still have to make out. The court won't do it for you. So, you have to go to the National Consumer Commission and say, "We went to the restaurant, we ordered a burger. While eating the burger, a needle got stuck in my throat." It immediately presumes that the needle was in the burger, and therefore it becomes a problem of the restaurant. Now, if it was a fast food place that, say, orders frozen patties in bulk from a supplier, and the needle was inside the frozen patty, then what the Consumer Protection Act says, and this is very important for restaurant owners to understand, is that, as long as the restaurant does what it is expected to do normally - you know, you'd get the burgers in, you put them in the freezer, you cook them, you serve them - it's not expected of you to x-ray each and every burger before you cook it. Then the restaurant would not be liable to the consumer, but the supplier to the restaurant would be liable to the consumer. So, somebody has to pay the consumer. If it's not the restaurant, it will be the supplier of the restaurant in terms of the Consumer Protection Act.

[11:09][Eon] Very interesting. And Janusz, just finally: is there a risk of criminal prosecution for the restaurant, the owner, or the manager, and how would they defend against it?

[11:21][Janusz] Okay, so this is interesting because, again, for reasons I don't understand, this never came up in this Beyerskloof case. But in terms of our Foodstuffs Cosmetics and Disinfectants Act, the Foodstuffs Law, the Department of Health - in fact, let me rather be correct - the Health Department of the municipality where this happened could have laid criminal charges against the restaurant manager for serving a meal which caused harm to a consumer. And now that becomes a lot more difficult to defend. The person may be able to defend the case, but, at the very least, they would be facing a criminal charge which they would have to defend. But it's too late for them to do it now. In terms of the law, that criminal charge must be laid within 30 days of the event occurring. They can't lay the criminal charge five years later. So, that manager of that restaurant or the owner of the restaurant, they're off the hook for now. But, relevant to current restaurant owners or coffee shop owners or whoever's out there listening to this, when you serve somebody a meal that causes harm to them, be it food poisoning, be it they swallow a stone and break a tooth or something, there's a potential for a criminal charge against you under the Foodstuffs Act.

[12:41][Eon] Now, that's interesting. Watch out for the stones and the needles in those burgers. Janusz, gotta eat carefully. But thank you so much.

[12:52][Janusz] High fiber. High fiber.

[12:53][Eon] Yeah, high fiber. But thank you so much. This was very interesting and insightful. We've been following that story for quite some time now, and it's nice to see that there was finally some conclusion.

[13:04][Janusz] So, to add one final point. Of course, as with all law, it's still possible for somebody to appeal this case all the way to the Supreme Court. So, it's not quite over, maybe. Maybe there will still be another appeal, but that is what the law says now.

[13:20][Eon] Okay. I was actually wondering if it could go any further, but you just answered that question. Thank you so much. Janusz Luterek from Hahn & Hahn Attorneys. Thank you so much for joining us today on Legal Talk.