Sue the chef!

Sue the chef!

MALAYSIA - You attend a friend's wedding banquet at their home. Eight hours later the festive mood is gone as you find yourself on a hospital bed doubled over with stomach cramps, dehydrated and delirious from vomiting and diarrhoea. Over the next two days, it emerges that 18 other guests are in a similar shape, with three of them dying the next day from bad beef rendang.

Can you and the other survivors get justice for your pain and suffering? Can the families of the three who died get anything for their loss?

According to former president of the Malaysian Bar Council Ragunath Kesavan, you could file a civil suit against the caterers.

"You can sue for damages, hospitalisation costs, pain and suffering - these would be the big three you can claim for. Essentially you would have to obtain a medical report to identify the cause of the illness," said Ragunath.

However, he cautioned that the damages a person can get from a personal injury suit are legally capped and would also depend on the level of pain and suffering one sustained.

"It won't be a huge amount of money," said Ragunath.

He added that one would have to get the host of the wedding involved in the suit as there is no contractual link between the victim and the caterer, unlike at a restaurant. "Eating at a restaurant and eating at a wedding are two separate things, as there would be a contractual liability at a restaurant as you paid for the food," said Ragunath.

Asked if a caterer or restaurant owner could rely on any defences, Ragunath told The Star Online that there was one - when preparing food and drink, be extremely cautious.

"A caterer or food and beverage provider has to be careful and responsible (when preparing food) as liability is proven the moment the cause of the food poisoning is proven," said Ragunath.

Earlier this month salmonella-contaminated ayam masak merah at a wedding in Alor Setar saw four deaths and 60 other people hospitalised after they showed symptoms of food poisoning.

Asked if caterers or restaurant owner could be prosecuted for similar incidents, Ragunath said such prosecutions would be unlikely as food poisoning cases would fall under different laws, such as the Food Act 1983 or local council Acts.

Similar views were shared by another lawyer, Sreekant Pillai, who said any criminal prosecution of a caterer or restaurant owner would depend on the investigations conducted.

"Any criminal prosecution of the caterer would depend on the investigations by the police and the A-G's Chambers based on the investigating papers supplied by the police or the Health Ministry under the Food Act. Any prosecution would be based on what evidence is available," said Sreekant.

He added that any consumer could file a suit for negligence and a breach of duty of care. "You have to show proof that the caterer was negligent. You have to bring evidence including medical reports, lab reports of the food to prove the food poisoning came from that particular caterer," said Sreekant.

Meanwhile, criminal defence lawyer Farhan Read said criminal action can only be brought against a caterer or restaurant owner if there was clear evidence of an offence such as murder by deliberate poisoning of the food, but if the poisoning was due to poorly prepared food, it would be a grey area.

"For example, if I want to serve raw meat but I keep it un-refrigerated for more than a week before selling it, that could fall under Section 307 of the Penal Code for causing death by negligence. But that section mainly deals with acts of direct negligence, not omissions," said Farhan.

He said if a police report was made, it would be for the purposes of a civil suit if at all. "However an enthusiastic Deputy Public Prosecutor, or one sensitive to this issue just might decide to charge the restaurant operator or the caterer," he added.

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