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.