There are now 22 confirmed cases of Hepatitis A suspected to have been caused by berries sold by Patties Foods.

Patties Foods says there is still no firm link between the Hepatitis A outbreak and its recalled berries and maintains that the berries were recalled on health department advice. The berries are said, by the Australian Department of Health to be the only common exposure in all cases.

Patties Foods says that it has a documented regime whereby it tests 20% of all imported fruit containers when they arrive in Australia. That regime is more rigorous than the testing required by the Australian Standards which only requires that 5% of containers be tested.

Patties Foods also told news.com that it checked quality control testing documents back to June 2014 and that it is satisfied that no biological indicators outside Australian guidelines had been detected.

The recalled berries are now reportedly being tested in laboratories in Australia, Europe and North America with results expected shortly.  In addition to concerns regarding damage to the brand and a decrease in share price, an importer who finds themselves in a situation like this might be concerned about their potential liability exposure when bearing in mind the terms of the Australian Consumer Law (ACL) as set out in Schedule 2 of theCompetition and Consumer Act 2010 (Cth).

We understand that the suspect berries were imported from China and Chile. The entity responsible for importing the berries is therefore likely to be deemed the manufacturer of the goods in accordance with section 7(1)(e) of the ACL.

Pursuant to Part 3-5 of the ACL manufacturers of goods are liable to compensate individuals if they supply goods with a safety defect which results in injury. Therefore the relevant question will be whether or not food that is contaminated with a virus  would be said to have a ‘safety defect’ within the meaning of the ACL.

According to section 9 of the ACL, goods have a safety defect if their safety is not such as persons are generally entitled to expect. The test is objective and is determined in accordance with the expectations of the community. 

Section 142 of the ACL sets out the defences that are available to manufacturers in response to defective goods actions. Those defences include:

  1. That the defect did not exist when the goods were supplied;
  2. The defect was caused only due to compliance with a mandatory standard for them;
  3. The state of scientific or technical knowledge did not enable the defect to be discovered at the time the goods were supplied;
  4. Where the defect is due to a part which forms an element of finished goods but the defect is attributable to the design, markings on, or instructions/warnings given by the manufacturer of the finished goods.

This is a timely reminder for insurers of companies that supply or sell imported products.

Bianca Horn