Gibson (a pseudonym) v Askim Pty Ltd ATF the Askim

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Gibson (a pseudonym) v Askim Pty Ltd ATF the Askim Trust trading as Central Café Group

Citation: 

[2024] ACTSC 203

Hearing Date: 

14 March 2023 – 16 March 2023

Decision Date: 

28 June 2024

Before:

Baker J

Decision: 

(1)  Judgment is entered for the plaintiff in the sum of $65,573.34.

(2)  The defendant is to pay the plaintiff’s costs.

(3)  If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 2 is stayed until further order.

Catchwords: 

CIVIL LAW – NEGLIGENCE – personal injury – plaintiff contracted salmonella poisoning while working as a kitchen hand at the defendant’s café – whether plaintiff demonstrated on the balance of probabilities that she contracted salmonella poisoning from the café – coincidence reasoning - other patrons of the café also contracted same strand of salmonella bacteria - café was found to have committed numerous breaches of the Food Act 2001 (ACT) – whether the risk of the plaintiff contracting salmonella poisoning was foreseeable and not insignificant – whether defendant breached duty of care - defendant failed to provide soap to its employees and failed to properly refrigerate raw meat and chicken – whether the negligent conduct of the defendant was a necessary condition of the harm caused – liability established – damages awarded

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43, 44, 45, 99

Evidence Act 2011 (ACT), s 98

Food Act 2001 (ACT), ss 22(2), 27, 89

Cases Cited: 

5 Boroughs NY Pty Ltd v State of Victoria (No 2) [2022] VSC 494

Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368

Bradshaw v McEwans Pty Ltd [1951] 217 ALR 1

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

Cobanov v Josifovski (No 2) [2021] ACTSC 111

Craig v Silverbrook [2013] NSWSC 1687

Cubillo v Commonwealth of Australia (No 2) [2000] FCA 1084; 174 ALR 97

Czatyrko v Edith Cowan University [2005] HCA 14; 214 ALR 349

Dare v Pulham [1982] HCA 70; 148 CLR 658

East Metropolitan Health Service v Ellis (by his next friend Christopher Graham Ellis) [2020] WASCA 147

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Fox v Percy [2003] HCA 22; 214 CLR 118

Gill v Ethicon Sàrl (No 5) [2019] FCA 1905

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540

Guojin Huang v Jinghong Wei (No 2) [2022] NSWSC 473

Jones v Dunkel [1959] HCA 8; 101 CLR 298

Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280

Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44;

Kone Elevators Pty Ltd v Shipton [2021] ACTCA 33

Lewis v Woolworths Limited [2018] ACTSC 200

Matthew Xavier Carton v Rainbow Plumbing and Drainage Pty Limited [2013] ACTSC 267

Michelle…

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Details
Case
[2024] ACTSC 203
Decision Date

CaseChat Overview and Summary

Gibson, the plaintiff, brought a claim against Askim Pty Ltd ATF the Askim, the defendant, alleging that she contracted salmonella poisoning while working as a kitchen hand at the defendant’s café. The dispute was heard in the ACT Civil and Administrative Tribunal. The plaintiff argued that the defendant’s failure to provide soap and improperly refrigerate raw meat and chicken led to the contamination and that this was a breach of the duty of care owed to her. The defendant contested the claim, asserting that there was insufficient evidence to establish a causal link between the defendant's conduct and the plaintiff's illness.

The court had to determine whether the plaintiff had demonstrated on the balance of probabilities that she contracted salmonella poisoning from the café. The court also needed to consider if the risk of the plaintiff contracting salmonella poisoning was foreseeable and not insignificant, and whether the defendant breached its duty of care. The court found that the coincidence of multiple patrons contracting the same strand of salmonella bacteria, along with the café's numerous breaches of the Food Act 2001 (ACT), supported the plaintiff's claim. The court further found that the defendant's failure to provide soap and properly refrigerate raw meat and chicken was a necessary condition for the harm caused.

The court found in favour of the plaintiff, establishing liability on the part of the defendant. The court awarded the plaintiff $65,573.34 in damages. Additionally, the court ordered the defendant to pay the plaintiff’s costs. If either party seeks a different costs order within seven days of the making of these orders, the costs order will be stayed until further order.

Orders

Orders of the court

(1) Judgment is entered for the plaintiff in the sum of $65,573.34.

(2) The defendant is to pay the plaintiff’s costs.

(3) If either party notifies the Court within 7 days of the making of these orders that a different costs order is sought, order 2 is stayed until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.