Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd
[2012] NSWSC 381
•20 April 2012
This decision has been amended. Please see the end of the decision for a list of the amendments.
Supreme Court
New South Wales
Case Title: Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd Medium Neutral Citation: [2012] NSWSC 381 Hearing Date(s): 3, 4, 5, 6, 11 August 200913, 19, 20, 21, 22, 26, 27, 29, 30 July 20102, 3, 4, 5, 6, 9, 10, 11 August 20101, 3 September 2010 Decision Date: 20 April 2012 Jurisdiction: Before: Rothman J
Decision: See [248] and [249]
Catchwords: PERSONAL INJURY - supply of contaminated food - Salmonella poisoning - factual contest as to source of supply.
Legislation Cited: Civil Liability Act 2002
Competition and Consumer Act 2010
Evidence Act 1995
Fair Trading Act 1987
Trade Practices Act 1974
Sale of Goods Act 1923Cases Cited: Adeels Palace v Moubarak (2009) 259 CLR 420
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
ASIC v Rich (2009) 75 ACSR 1
Asim v Penrose [2010] NSWCA 366
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764
Bell v Thompson (1934) 34 SR (NSW) 431
Briginshaw v Briginshaw (1938) 60 CLR 336
Carney v Newton [2006] TASSC 4
Donohue v Stevenson [1932] AC 562; [1932] All ER Rep 1
Effem Foods Ltd v Nicholls [2004] NSWCA 332
Graham Barclay Oysters v Ryan [2000] FCA 1099; 102 FCR 307
Henry Kendell & Sons v William Lillico & Sons Ltd [1969] 2 AC 31
Hern v Nichols (1701) 1 Salk 289
Hollis v Vabu (2001) 207 CLR 21
Jackson v Lithgow City Council [2008] NSWCA 312
Jones v Dunkel (1959) 101 CLR 298
KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd [1988] ASC 55-695
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Morley v Australian Securities & Investments Commission [2010] NSWCA 331
Murray v Kickmaier [1979] 1 NSWLR 414
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449
Palmer v Dolman [2005] NSWCA 361
Ryan v Great Lakes Council [1999] FCA 177; (1999) 102 LEGRA 123
Saaman bht Samaan v Kentucky Fried Chicken Pty Ltd [2009] NSWSC 1265Texts Cited: Cross on Evidence (8th Australian edition)
Category: Principal judgment Parties: Monika Samaan (by her tutor Amanwial Gergis Samaan) (plaintiff)
Kentucky Fried Chicken Pty Ltd (defendant)Representation - Counsel: A.J. Bartley SC with D.C. Morgan and T. Jones (for the plaintiff)
I. Barker QC with J. Van Aalst (for the defendant)- Solicitors: Kydon Segal Lawyers (for the plaintiff)
Baker & McKenzie (for the defendant)File number(s): 2006/20457
Publication Restriction:
JUDGMENT
The plaintiff, Monika Samaan (by her tutor Mr Amanwial Gergis ('Emanuel David') Samaan) sues Kentucky Fried Chicken (KFC) for damage being severe brain damage as a result of contracting Salmonella Encephalopathy on 26 October 2005. The plaintiff alleges her injuries were caused by the actions of the defendant, KFC. The plaintiff brings claims pursuant to ss 74B, 74D and 75AD of the Trade Practices Act 1974 ('TPA'); ss 40U, 40L and 40W of the Fair Trading Act 1987 ('FTA'); s 19 of the Sale of Goods Act 1923; and she brings a claim under the basic contractual principles for the loss and damage she has suffered as a result of those injuries and in negligence. The quantum of possible damage was not argued in these proceedings.
While intending no disrespect or condescension, I will refer to the plaintiff by her first name, Monika, for clarity.
Monika alleges she ate a chicken "Twister" purchased by her father, Mr Samaan, from KFC, a manufacturer and supplier of fast food, at its Villawood store on 24 October 2005 and it is alleged that the Twister contained the Salmonella bacteria that caused Monika's injuries. At the material time the Villawood store was not a franchised store.
At issue is whether Mr Samaan did in fact purchase the Twister from the defendant and if so, a second issue arises as to whether the Twister caused the Salmonella Encephalopathy (or 'Salmonella poisoning') that led to the plaintiff's personal injuries.
Monika's claim was commenced on 10 November 2006. An amended statement of claim was filed on 25 June 2010, in which it is alleged that the Twister was unsafe for consumption, was contaminated with bacterium, was a health hazard or had a safety defect. It is also alleged that KFC sold the Twister in circumstances where it knew or ought to have known that the chicken product was likely to be contaminated or unsafe. It is alleged that the defendant failed to take adequate measures or precautions and failed adequately to devise, implement and monitor quality control systems to ensure that the chicken Twister was safe for consumption.
KFC does not admit that the Twister was purchased by Mr Samaan at the relevant time and denies that such a chicken Twister was unsafe for consumption.
In this matter, as in many food poisoning cases, it is not possible to conclusively prove causation by testing all the food eaten by the claimant and matching it to the bacteria that caused the illness. For obvious reasons this is often an impossible task and so a process of identification and elimination is undertaken to identify the source. All suspect food eaten in the relevant incubation period will be identified and the most likely probable cause will be determined.
Monika and her family ate a number of suspect meals within the incubation period for Salmonella Encephalopathy. Every member of Monika's family, except for her grandmother, Mrs Widad Dous, suffered from Salmonella poisoning and they were all hospitalised. However, the plaintiff's injuries, as will be discussed, were by far the worst.
The Court is alive to the defendant's submissions that the plaintiff's case presents a number of difficulties that must be overcome in order to make factual findings in favour of the plaintiff's version(s) of events. The defendant submits that to do so the Court would need to:
(a) Set aside the significance of what are alleged to be fundamental evidential gaps and inconsistencies such as: contemporaneous food history evidence which is inconsistent with the trial evidence; inconsistencies around the sharing of food claims; the family's failure to mention their two visits to KFC on Monday 24 October 2005 and the sharing of the Twister to either the health or the food authorities; doubtful evidence by the plaintiff of fresh chicken being thrown out rather than being eaten; and the numerous other foods recorded in the witness evidence.
(b) Entirely discount or accord very minimal weight to contemporaneous documentary evidence such as sales records, medical notes and health and food authorities' notes, correspondence and reports.
(c) Give primacy to Mr Samaan's evidence over that of other witnesses on matters of factual contest.
(d) Ignore the inherent improbabilities, as pointed out by expert evidence, in the notion that amongst all of the foods eaten by the family a single, shared, small item from KFC caused the poisoning to four people, notwithstanding an alleged absence of evidence about any malfunction in the process which might have allowed contamination, the fact that there are no records of other KFC customers falling ill in the relevant period, and the expert evidence regarding accredited testing for Salmonella, toxicity, cell growth, temperature and infective dose.
(e) Ignore the allegedly "manifestly false" evidence given by Mr Samaan in relation to seeing a boy come out from the kitchen to make the Twister, and seeing the boy take pieces of chicken from a holding area.
The defendant suggests that any of these matters alone render the discharge of the plaintiff's onus difficult enough; when aggregated they present an insurmountable hurdle to the plaintiff.
In this case it is necessary to make a number of factual findings, they include:
(a) A determination of the source of the Salmonella bacteria that caused Monika's injuries and its incubation period. It is accepted that there was a common source of the poisoning because each family member had the same strain of Salmonella bacteria in samples that were taken from them.
(b) Whether it is possible that Mrs Dous acted as a 'control' in the sense that she was not exposed to any Salmonella bacteria and thus a number of possible exposures to infection may be ruled out. An alternative explanation is that Mrs Dous had a natural, or greater, immunity to this particular type of Salmonella poisoning and therefore she could have been exposed to the same Salmonella bacteria as the rest of the family but did not become ill. Thus, it is said, it is difficult to rule out a number of shared possible sources for the Salmonella bacteria.
(c) If it were accepted that it is more likely than not that Mrs Dous did not have an immunity to the bacteria, and that she was not ill because she did not come into contact with the bacteria that caused the family's illness, it will be necessary to try to identify the common source of the Salmonella poisoning by excluding any suspect exposures that were common to the plaintiff's grandmother.
(d) A decision must be made as to whether the plaintiff's father did in fact purchase a chicken Twister from KFC Villawood and if so, whether the whole family consumed it within the incubation period for Salmonella poisoning, thus making it a suspect source of exposure.
(e) If the Twister is to be considered as a suspect source of infection, a decision must be made as to whether it is more likely than not that the Twister had the requisite level of Salmonella bacteria on it to cause the plaintiff's injuries within the incubation period.
These questions will involve considerations of witness evidence, the food handling and preparation procedures at the KFC Villawood store, and a consideration of expert opinion evidence.
As a consequence of the forgoing, on the face of it, it is clear there exist inherent difficulties in identifying the source of the bacteria that caused the plaintiff's injuries. If KFC as the source of the infection is improbable, but the only possible source of the injury on the evidence that is ultimately accepted by the Court, the plaintiff may satisfy the Court that KFC more probably than not was the source of the bacteria.
One thing is known, Monika suffered severe injuries and they were the result of ingesting food with Salmonella. The type and severity of the injuries were most rare. But their unusual existence is the one certainty before the Court.
Legal Principles
The central issue in this matter is whether the plaintiff has established on the balance of probabilities, that the source of the Salmonella poisoning was a Twister purchased from KFC Villawood. It is therefore apposite to state the relevant legal principles.
Section 140 of the Evidence Act 1995 provides:
"140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged."
Section 140 reflects the common law position that the civil standard of proof allows for the co-existence of alternate possibilities as a consideration to be weighed in determining whether the standard has been reached: Murray v Kickmaier [1979] 1 NSWLR 414, per Reynolds JA. This standard is dependant on the facts and circumstances of a particular case. Thus, the onus is on a moving party to establish that it is 'more probable than not' that the necessary facts existed: Carney v Newton [2006] TASSC 4 at [52].
While it is trite law, it should be noted that essentially two elements are required for the balance of probabilities to be satisfied: a court is required not only to conclude that it is more likely than not that the version of the facts in issue existed; it is also required to conclude that the material before it is appropriate to make that finding of fact. The facts and circumstances of the case presented to the Court must provide an appropriate basis to persuade the Court that there was a reasonable likelihood of their existence.
What this means is that a belief or disbelief in two probabilities 'exactly balanced' will not satisfy the test (Carney v Newton at [61]; Bell v Thompson (1934) 34 SR (NSW) 431). Likewise, disbelief in a moving party's version of facts does not mean that the opposing party's case has been established (Jackson v Lithgow City Council [2008] NSWCA 312 at [11] - [12]). Further, the inability of a court to make a finding either way will not discharge the burden of proof on the moving party: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [60].
Section 140(2) requires the court to take into account "the gravity of the matters alleged". Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 stated:
"[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ suggested that the strength of the evidence necessary to establish a fact, on the balance of probabilities, may vary depending on what is sought to be proved. However that variability does not go to the standard of proof, rather it reflects conventional perceptions of the gravity of the allegations and the requisite conduct involved.
The Court of Appeal in Morley v Australian Securities & Investments Commission [2010] NSWCA 331 discussed the applicability of the Briginshaw principles in civil penalty proceedings and also considered "the gravity of the consequences" in relation to the standard of proof required where there is an issue as to an exercise of the court's jurisdiction to make an order sought. Although civil penalties are not at issue in this matter, the findings this Court is required to make may require some discreet evaluation with grave consequences, depending on the ultimate conclusion, for the defendant possibly beyond the confines of this matter and important consequences for the plaintiff. Therefore the Court of Appeal's analysis of the considerations required under s 140(2) of the Evidence Act are helpful:
"[737] It is pertinent to note that, while s 140(2) requires these three matters to be taken into account, it permits other matters relevant to the formulation of the state of satisfaction to be taken into account. ...
[738] Dixon J's focus of attention in Briginshaw v Briginshaw was upon observations in certain authoritative legal texts which, with respect to the civil standard of proof, acknowledged that "the degree of satisfaction demanded may depend ... on the nature of the issue" (at 361). ...
[739] Although it has not been cited frequently in subsequent authority, no doubt because of the exceptional respect with which Dixon J is treated, the equivalent reasoning of Rich J in Briginshaw v Briginshaw at 350 is also worthy of note-
'In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.'
...
[741] In the present case, the allegation is essentially negligence with respect to the issue of a news release. In the ordinary case ... conduct of the nature alleged would not necessarily attract the "conventional perception" referred to in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
[742] However, the allegation of negligent conduct is the foundation for declarations of contravention and the imposition of penalties and orders for disqualification. This falls within what Dixon J referred to in Briginshaw v Briginshaw as the "gravity of the consequences". We do not think that this means only the gravity of consequences that would have been understood as possible or likely to flow at the time that the conduct occurred, rather than at the time of trial. In our opinion the "gravity of the consequences" can be assessed at the time of trial, for two reasons. First, the kinds of orders a court may make in the proceedings falls naturally within s 140(2)(a) of the Evidence Act which refers to "the nature of the cause of action" as a matter that the court is obliged to take into account. Secondly, there is authority in Australia which supports that conclusion.
[743] In R v Jenkins; Ex parte Morrison (1949) VLR 277 the Full Court of the Supreme Court of Victoria was concerned with a dispute as to the paternity of a child by reason of an alleged mix-up at the hospital. In the context of a statutory scheme which required the welfare of the child to be the paramount consideration, the court refused to order a change of custody. The principal judgment was given by Fullagar J, who expressly referred at 304 to the observations in Briginshaw v Briginshaw with respect, and only with respect, to "the gravity of the consequences", in the context of addressing the issue of the exercise of the discretion of the court to make the order sought. This was equivalent to the decision in the present case to impose a penalty or make a disqualification order. Fullagar J said (at 304-305) -
The situation is not properly met by saying merely that a high standard of proof is required. It is no mere matter of finding a fact on adequate evidence. It is a matter of discretion, and therefore potentially taking risks, and there is one central fact, the parentage of Nola, with regard to which no risk - not even the slightest - should be taken ... If there is even the slightest room for doubt, no order, in my opinion, ought to be made.
[744] On appeal, as Morrison v Jenkins (1949) 80 CLR 626, two members of the majority in the High Court expressly adopted Fullagar J's reasons. ... Webb J, although not in terms adopting Fullagar J's reasons, referred to submissions to the effect that a higher standard was appropriate and said (at 654) that "[t]he court cannot change the standard of proof, but it can and should insist on exact or cogent proofs on issues of grave importance like that of parentage."
...
[746] We note that in Re Doherty (Secretary of State for Northern Ireland Intervening) [2008] UKHL 33 ; (2008) 1 WLR 1499 the House of Lords applied to both seriousness of the allegation and seriousness of the consequences the approach that, the more serious they were, the stronger should be the evidence before it was concluded that the allegation was established on the balance of probabilities. Lord Carswell gave an example at [28]: "If it is alleged that a bank manager has committed a minor peculation that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing".
...
[748] Just before the frequently cited passage, Dixon J said that "[w]hen the law requires the proof of any fact, the tribunal must feel actual persuasion of its occurrence or existence before it can be found".
...
[750] References in the authorities to "actual persuasion" should be understood as equivalent to the state of "satisfaction", as that word is used in s 140. It should not be understood as requiring a subjective "belief". ... "persuasion" is not equivalent to "belief". It was deployed by Dixon J as equivalent to "satisfaction", and in the latter form has been given statutory effect.
...
[753] In order to be satisfied on the balance of probabilities, within the meaning of s 140, the tribunal of fact must reach an affirmative conclusion, or a definite conclusion, or an actual persuasion. This state of mind turns on the cogency of the evidence adduced before it. ... In Whitlam v Australian Securities and Investments Commission it was said that, absent diligence in calling available evidence, a court is left to rely on uncertain inferences. The case of the party in default suffers in its cogency, and it is made more difficult for the tribunal of fact to reach an affirmative conclusion, a definite conclusion or an actual persuasion: the more so if the Briginshaw principles involving the gravity of the consequences apply. In our opinion, that is the consequence of the breach of the obligation of fairness.
[754] This is not a novel stance. In Ho v Powell Hodgson JA, with whom Beazley JA agreed, said at [14] that "in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision", and his Honour referred at [15] to the importance of having regard to "the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so" ..."
In Asim v Penrose [2010] NSWCA 366, the Court of Appeal reiterated the principles exposed by Ipp JA in Palmer v Dolman [2005] NSWCA 361, stating at [142]:
"35 The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is:
Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ...
36 This statement in Bradshaw was adopted in Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 480 to 481; Jones v Dunkel (1959) 101 CLR 298 at 304; and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 and 168.
37 In Chamberlain vR (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536:
When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged ...
38 In Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 211 that when a lesser standard of proof than beyond reasonable doubt will suffice, 'the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved.
39 On these authorities, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. ...
40 The standard of proof to be applied, together with a non-exhaustive list of "matters" to be taken into account, are now to be found in s 140 of the Evidence Act 1995 (NSW): ...
41 Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent:
(a)The jury must consider "the weight which is to be given to the united force of all the circumstances put together" ...
(b)The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" ...
(c)The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.
(d)Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw.
42 Mr Harrison placed considerable reliance on the approach expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although Briginshaw has been quoted so many times, it is helpful to repeat Sir Owen Dixon's statement at 361 to 362:
... [extracted above]
43 The question arises as to the authoritative weight that, today, attaches to the observation that, where a serious allegation is made, "reasonable satisfaction" should not be produced by "inexact proofs, indefinite testimony, or indirect inferences".
...
45 It is worth repeating, I think, that in Chamberlain vR (No 2) at 536 Gibbs CJ and Mason J said that in a civil case 'the circumstances must raise a more probable inference in favour of what is alleged.
...
47 The more recent authorities to which I have referred, and s 140 of the Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities." (Emphases added)
[143] Accepting, as did the primary judge, that the inquiry is as Ipp JA stated at [47] of his judgment in Palmer, nevertheless that part of the judgment in Neat Holdings recorded at [46] of Palmer and which I have emphasised, needs to be considered in conjunction with the passage from Bradshaw v McEwans Pty Ltd extracted by Ipp JA at [35] of Palmer. In particular, I would in a case such as the present emphasise the following passage from the joint judgment of Dixon, Fullagar and Kitto JJ in Luxton v Vines at 358:
In questions of this sort, where direct proof is not available [the evidence being only circumstantial], it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture.
This test has been repeatedly adopted in this court as well as in the High Court in cases too numerous to cite."
The plaintiff's injuries
It is not controversial that as a result of being infected with Salmonella bacteria, Monika suffered organ system failures and injuries, septic shock (including Salmonella septicaemia), severe brain injury and spastic quadriplegia. These injuries mean that Monika is now physically disabled and she is in a wheelchair. Her disabilities include severe cognitive impairment, severe motor impairment, severe impairment of communication skills and incontinence. She is now intellectually disabled, is unable to function independently, she needs 'total care' and she will be unable to live a life filled with normal activities, relationships, milestones and achievements. Damages, however, is not a matter with which these reasons deal except to note that damages, a necessary ingredient of negligence, have been suffered and those damages are extensive. The plaintiff has been severely disabled at a very young age and as a result of her injuries, it is clear she will never enjoy the normal life that was expected of her prior to this catastrophic event.
The Twister
A KFC Twister is a kind of tortilla. It consists of chicken breast, which is cut into strips (called Crispy Strips) and deep fried, together with lettuce and a Twister sauce, which is a kind of mayonnaise containing acids and preservatives and tomato. Those ingredients are rolled up in a large piece of flat bread, which is supplied as a frozen packaged product that has previously been baked at very high temperatures (in excess of 200°C).
Crispy Strips are made of chicken breast pieces which are marinated by KFC's supplier. The chicken is double-breaded and cooked. KFC requires that chicken be delivered refrigerated and with a minimum of 2 days shelf-life remaining. However, some frozen stock of Crispy Strips are kept for emergencies. KFC's product manual ("C.H.A.M.P.S." (acronym for Cleanliness, Hospitality, Accuracy, Maintenance, Product and Speed)) (exhibit TBI 6) provides a thawing procedure that involves the strips being placed in their bags, in a sink, on racks, in cold water. It states that damaged racks are not to be used as they puncture the liners and the marinated chicken is watered down. Any marinated chicken that comes into contact with water during the thawing process is to be thrown away and hot water should never be used to thaw the chicken.
The chicken pieces that make up the Crispy Strips are inspected for bones and foreign objects. They are then dipped in water and the chicken is spread across and folded into pre-prepared breading flour. Old breading from the day before should be sifted twice before fresh breading is added. Once the chicken is 'scooped and folded' seven times through the breading, it is again dipped into water. The chicken is then re-breaded using the scoop and fold procedure. Then, the chicken is placed on racks and put into a 'henny penny' and deep fried in vats of boiling palm oil. These Crispy Strips, are drained for 15 seconds, and then unloaded from the racks and set aside on hot trays. The C.H.A.M.P.S. manual instructs cooks not to pile the Crispy Strips on top of each other as they will become soft.
The preparation of the Twister requires the following steps to be taken.
At a 'burger station', a KFC staff member places a wrapper on the work surface and then takes from a drawer underneath the burger station, a tortilla which has been thawed overnight. The tortilla is then warmed for 45 minutes, and put on top of the wrapper. Located at the burger station in bain maries, are lettuce, tomato and Twister sauce, which are added to the tortilla, in the centre. Two Crispy Strips are placed on top. Alternative options for making the Twister involve adding 'Sweet Chilli Mayo' instead of the Twister sauce, or adding two halves of a cheese slice and two slices of bacon.
The Twister is then folded and wrapped. The C.H.A.M.P.S. manual describes this procedure as follows:
"1 Fold Twister
Fold the tortilla over almost in half and then pull top half of the tortilla back gently to hold the filling in place.
Fold the right end of the tortilla approx. 3-4cm toward the centre. The fold should be a neat square.
Use both hands to hold the filling in place and tightly roll the Twister over until all the tortilla has rolled up. The completed Twister should appear round, tight and full.
2 Wrap Twister
Carefully, move the Twister diagonally across the centre of the wrap.
Start wrapping by bringing the point of the wrap closest to you up and over the rolled Twister.
Bring the side point of the wrap up and fold over (to make the closed bottom of the Twister).
Roll the Twister towards the point of the wrap that is away from you..."
The Twister is either served or placed on hold. The manual states:
"3 Serve or Hold
Serve immediately. However during peak times when Crispy Strips are less than 30 mins old, Twisters may be stored for no more than 5 minutes in the Pre-pack unit.
Use the time tags to monitor holding time. Check the holding time regularly and throw out after 5 minutes.
Unless actually asked for, wetnaps and serviettes are not provided with Twisters.
Crispy Strips do not hold temperature well and when rolled with these cold ingredients they become cold even more quickly. Also the moisture of the ingredients and Crispy Strip breading combine and lose their fresh flavours and crisp textures. Therefore prepacked Twisters must not be held more than 5 minutes!"
If a person who is working at the front customer service area of the store made the Twister, they would take it to the customer themselves; otherwise the Twister would slide down a chute to the customer service area.
The tomato and lettuce are delivered to the store two or three times a week from a refrigerated truck. They are usually delivered in a box and are taken straight to a cool room. The tomatoes come to the store already diced.
Bacteria Salmonella
The parties agree that the diagnosis of the plaintiff's illness is Salmonellosis-induced Encephalopathy. Specifically, the Salmonella bacterium causing the plaintiff's Salmonellosis was Salmonella Enterica subspecies Enterica, serotype Typhimurium, Phage Type 135, abbreviated to 'STM135a'.
Incubation period
On the evidence it would seem that the incubation period for Salmonella poisoning could be anything from about 6 hours to 72 hours. It is accepted that the likely period between exposure to Salmonella infection and the appearance of the first symptoms for Salmonella encephalopathy is about 72 hours at the maximum. The majority of cases occur within 12 to 48 hours and the most common incubation period is between 26 and 30 hours.
I am prepared to consider the widest range for the possible incubation period, that is, the possibility that foods eaten by the family between 72 hours and up to 6 hours prior to the first onset of illness should be considered suspect in this case. The evidence suggests that Monika was the first in the family to become sick and that occurred some time around or before 2am on Tuesday, 25 October 2005. Therefore, food eaten between 8pm, Friday, 21 October 2005 and 8pm, Monday, 24 October 2005 is within the incubation period for Salmonellosis.
What is the most likely source of the Salmonella bacteria?
The parties have agreed that the most likely host of the bacteria was chicken.
A report prepared by Mr Gerard Fitzsimmons for Ozfoodnet, dated 12 December 2005, shows that in New South Wales from August 2005 to the date of the report, 54 cases of Salmonella Typhumurium 135a were reported to the National Notifiable Diseases Surveillance System (NNDS). Cases were recorded in October and nine were recorded in November 2005. A high proportion of cases reported shopping at a particular supermarket chain.
An email from Stephen Crone, an infectious disease surveillance officer for Sydney South West, dated 31 October 2005 to the enteric group stated that in the week of 23 October 2005 to 28 October 2005 eight children presented to Fairfield Hospital for presentations of "v&d" [vomiting and diarrhoea]. Four of those children were admitted. Four adults also presented to the hospital and one was admitted. From the evidence, Mr Crone's investigation into these hospital admissions seems to be based on his assumption that barbeque chicken from Fairfield could be the cause. There is no evidence of the source of that chicken, nor whether chicken had been consumed from KFC Villawood by those other sufferers. It seems (exhibit TB1(1) p 410 email from Stephen Crone) that because of the information provided by Mr Samaan (or that Mr Crone understood from that information) no investigation was conducted of the other sufferers of food disorders in relation to KFC Villawood.
Professor Graham Fleet, a Professor of Microbiology at the School of Chemical Engineering at the University of New South Wales, made two reports in relation to this case dated 21 April 2009 and 5 July 2010. His opinion in the report dated 21 April 2009 referred to the possible sources of Salmonella. Professor Fleet stated (page 5) that in recent years an increasing number of Salmonellosis outbreaks have been attributed to the consumption of contaminated vegetables and fruit produce although the incidence of Salmonella contamination in such produce is significantly less than those for poultry or other meat products.
Professor Fleet stated, in his supplementary report dated 5 July 2010, at page 2, that fresh raw chicken carcasses and meat cuts prepared from the carcasses will be contaminated with cells of Salmonella at a frequency of up to 50 percent, however, the likelihood of STM135a (i.e. this particular strain) being present is considerably lower. Recently published studies of fresh, retail chicken products in Australia examined in NSW during 2005 to 2006, found STM135a at a frequency of 0.7 percent, which equated to less than 1 in 200 samples.
According to the advice (dated 14 December 2007) of Dr Rod Givney, Staff Specialist of Microbiology at the Hunter Area Pathology Service, in the last 10 years, STM135a has been isolated from orange juice, tiramisu made from raw eggs, draw swabs of the floors of egg farms' sheds, raw chicken and smoked homemade sausage. Dr Givney advised that poultry is routinely contaminated with Salmonella and that Salmonella Typhimurium isolated from poultry had been noted to cause a significant proportion of human salmonelloses.
Dr Givney's report qualifies Professor Fleet's opinion in the following way:
"The court should note the proviso in this paper Professor Fleet has referenced, namely:
"... loss of control in food processing plants can amplify prevalence and concentration of Salmonella. Thus, a specific Salmonella may be present in only a few individual animals or rare in a raw produce overall but if it colonises a manufacturing line, then the proportion of cases caused by that specific Salmonella may increase."
Sumner, Raven and Givney (2004) then give a number of examples of outbreaks of human Salmonellosis in Australia where this amplification of a relatively rare specific variety of Salmonella has occurred, including one where the manufacturing line implicated was a chicken processor that resulted in large numbers of chicken carcasses being contaminated.
In previous advice I noted that at the time the Samaan family were infected (October 2005) there was a multi-jurisdiction increase in cases of S.Typhimurium 135a linked statistically to chicken consumption (September to December 2005) and that soon after (January to September 2006) increased numbers of cases of S.Typhimurium 135a in NSW alone were linked to chicken consumption and the NSW Food Authority reported that a chicken processor had responded by instituting a number of changes in practice.
At the time of the Samaan infections the occurrence of 2 outbreaks suggests there was an incident of loss of control in a food processing plant. You would then expect more than the average number of chicken carcasses contaminated and that they would have more than the usual concentration of Salmonella."
Dr Givney's report of 25 June 2009 stated:
"Under-reporting of Salmonella infections is a well evidenced phenomenon. In Australia it is estimated that 6.9 Salmonella infections are not reported for every one that is. Even if a person's infection is reported, most often it cannot be linked accurately (especially by the person themselves) to a specific exposure. Despite this underreporting some months after Monica [sic] Samaan's infection, the health authorities in NSW received enough notifications of Salmonella Typhimurium phage type 135a to convincingly link these infections to chicken consumption. According to this outbreak report cases of Salmonella Typhimurium phage type 135a were reported to NSW in the months preceding Monica Samaan's infection."
Dr Givney's report of 8 April 2008 states:
"Interestingly at the time the Samaan family were infected there was a multistate increase in the number of cases of Salmonella Typhimurium 135a. An OzFoodNet investigation found in an analytical study that cases had significantly higher odds of having eaten chicken purchased from a particular Supermarket chain (OR=3.2, 95% CI 1.2,9.0) or having eaten from any fast food outlet (OR=2.8, 95% CI 1.0,7.7) compared to controls.
What this suggests in relation to the Samaans is that chicken was a recognised hazard, and perhaps the only recognised hazard, in Australia at that time for this specific infection but any of their exposures to chicken at that time could have placed them at additional risk."
Salmonella grows and develops in the guts of poultry and its faecal matter. The process of gutting a chicken can release the Salmonella from the chicken's internal organs and into its carcass. It would seem that the safest approach when handling raw chicken is to assume that it does contain Salmonella. Professor Fleet gave evidence in the proceedings as to how intensive chicken farming has resulted in a high rate of Salmonella in chicken meat and explained at page 7 of his report dated 21 April 2009, that this degree of contamination, namely, that 30 to 50 percent of chicken meat products in Australia will test positive to salmonella is "an outcome of intensive chicken farming".
Mr Sibraa, a food safety consultant, provided evidence dated 16 June 2009, that cross contamination from raw to cooked poultry is common where inexperienced caterers either handle the cooked food after previously handling the raw food or by use of contaminated appliances or work benches. Similarly, raw poultry in domestic refrigerators in contact with other foods or placed where it can drip on to or come into contact with other foods is a likely source of contamination. Mr Sibraa stated that organisms may be found in food additives of animal origin, although the usual cause of Salmonellosis is from poultry that has not been properly thawed before cooking and the deep tissues are not heated to sufficient temperature to destroy the Salmonella:
"Salmonella are always derived from contaminated foods of animal origin. Particularly poultry, pork, beef, lamb, egg products unpasteurised liquid egg and all meat dishes. Many other foods that contain salmonella are infected via the faecal oral route. Rockmelons have been implicated where the melons become contaminated from animal faeces on the ground. Cockroaches, flies, rodents and other insects live in sewers and other unclean places and can carry infected faecal material on their bodies and transfer the organism to food by contact with the food. Lettuce, spinach and tomatoes have been implicated in many recent outbreaks of salmonellosis.
The most prevalent food source of salmonella is raw poultry. It should be assumed that all raw poultry contains salmonella because many raw poultry carcases do contain salmonella (both toxic and non-toxic)."
Having considered the expert evidence, I accept that chicken and more specifically, cooked chicken that was consumed by Monika, was the host for the STM135a bacteria that caused the Salmonella poisoning.
How does Salmonella bacteria in cooked chicken infect people?
Once ingested, Salmonella organisms often survive gastric acid and some organisms pass through the stomach and the upper part of the small bowel, the duodena and attach to the epithelial cells, which is a lining of the gut. Some of the bacteria will invade that upper level and generate an inflammatory response that is sometimes associated with bleeding and ulceration of the intestinal wall. This inflammatory response results in irritation and the production of fluid. Gastric acid will destroy some of the ingested Salmonella, which is why only a small portion of people who eat contaminated food are likely to get ill, for example, people who have conditions which reduce the acid in the stomach.
The evidence shows that cooked chicken can be easily exposed to cross contamination from raw meat and that post-cooking contamination of food with Salmonella is a well recognised hazard. A cooked product, which has been handled with tongs, or other utensils that were used previously to handle uncooked chicken and not thoroughly cleaned afterwards, could transmit Salmonella to a food product.
It appears, on the basis of Mr Sibraa's report, that the most common cause of outbreaks of food poisoning in hospitals, restaurants and other institutions arises from food contaminated at its source, although sometimes contamination may occur via an ill food handler or via person-to-person transmission. Mr Sibraa's report included the following illustrative anecdote and observations:
"(a) I have investigated many cases of salmonella from undercooked poultry. The most memorable one was the sandwich bar that received frozen chickens instead of the usual fresh chickens. The chickens arrived late and the employee immersed them in hot water until he could get them flexible enough to put them on the rotisserie for cooking. After he removed them from the rotisserie he cooled them in the same water he had used to thaw the frozen birds. It was obvious that the deep tissues of the frozen birds did not reach sufficient temperature to destroy the salmonella. Hundreds of complaints were received of illness traced to the sandwich bar.
The usual cause is from poultry that has not been properly thawed before cooking and the deep tissues are not heated to sufficient temperature to destroy the salmonella. This is often observed by consumers as the meat appearing to be pink around the deep tissues.
(b) The most prevalent method of cross-contamination arises from the transfer of the organism from appliances, utensils or equipment such as benches ...and employees hands that have been used to prepare raw poultry and then come into contact with the cooked poultry."
Data suggests that Salmonella can survive on unwashed kitchen equipment for weeks to months and unwashed hands are likely to cause the transmission of Salmonella bacteria. Maintaining chicken at eating temperature (between 4°C to 60°C) or reheating chicken between these temperatures for a period of time could cause the multiplication of Salmonella bacteria in sufficient numbers to cause disease. Salmonella may also be transferred and survive on tap handles.
Bacterial dosing
Both Professor Fleet and Professor Lyn Gilbert (an infectious diseases physician and microbiologist and director for the Centre for Infectious Diseases and Microbiology Laboratory Services, at the Institute of Clinical Pathology and Medical Research, Westmead Hospital, who prepared two reports in this matter, dated 14 March 2008 and 24 April 2009) propounded various theories about the number of Salmonella cells that are required for a person to experience Salmonella poisoning. Public health literature often quotes the chance of illness as a defined level of 'bacterial dosing'. The notion of an infective dose that actually arrives at the site of ingestion (that is, the small bowel or the small intestine) remains an area of active research, although it is generally accepted amongst public health professionals, that a dose of 100 organisms approximately equates to a 0.1 to 0.2 chance of infection. The probability of infection rises to 0.6 to 0.8 (measured on a scale of 0.0 to 1.0 with 1.0 being certainty) with the existence of about a million or more organisms. However, it has been suggested that, in practice, usually it is thousands (rather than millions) of cells that are required to cause infection. Unfortunately, that figure is based on extrapolation from experiments on similar but not identical Salmonella virus types. Dr Givney's advice of 14 December 2007 stated:
"12. I do not know of any study relating the dose of Salmonella Typhimurium phage type 135a to illness. Such studies in humans are now generally considered unethical. In historical studies involving administration of laboratory Salmonella strains to healthy human volunteers, the median dose required to produce disease was approximately 106 bacteria. In contrast, investigations of point source outbreaks suggest that as few as 200 bacteria may produce gastroenteritis but ingested dose is an important determinant of incubation period and disease severity."
What is obvious is that the numerical difference between 100 to 1,000,000 organisms is significant in comparison to the increase in risk. Professor Fleet suggests that risk increases in a somewhat linear fashion depending on temperature: when a Salmonella cell grows on a solid surface, such as cooked chicken, it produces 2; 4; 8; 16; 32; 64; 128; 256; 512; 1,024; 2,048; 4,096; 8,192; 16,384; 32,768; 65,536; 131,072, etc, cells as it progressively divides according to each generation and time (Professor Fleet report 5 July 2010 at page 7). A Salmonella cell is microscopic (evidence indicates 10,000 cells are the surface area of a pinhead), as would be expected. If 50 cells were transferred to chicken and not destroyed by cooking etc, it will, on that analysis multiply to 100; 200; 400; 800; 1,600; 3,200; 6,400; 12,800 in the time taken (all other things being equal) in the above sequence to produce 2,048 cells. If 1,000 or 5,000 cells were transferred, then 1,024,000 cells or 5,120,000 cells would be produced in the same period, again, assuming all other things were equal.
Professor Fleet stated, in his supplementary report dated 5 July 2010, at pages 4 to 6:
"7.I am not aware of any literature that reports the specific growth properties of Salmonella typhimurium 135a. However, most serovars including Salmonella typhimurium have similar growth rates, with the generation time (ie time for the cell to divide to give two cells) being approximately 20 minutes under optimum growth conditions for temperature and the presence of nutrients. I assume STM 135a to have a similar generation time. As growth conditions become less optimum, growth rate decreases and the generation time increases - it becomes longer than 20 minutes.
8.Salmonella typhimurium grows fastest at a temperature of 37°C which is considered to be its approximate optimum temperature for growth. By comparison, its growth rate is decreased by about a half at 48°C, a third at 30°C and three quarters at 20°C. This means that the generation time will be about 40 minutes at 48°C, 27 minutes at 30°C and 45 minutes at 20°C.
9.Assuming a cross contamination load of 2 Salmonella cells to a 50g piece of cooked chicken, it would take about 3 hours (180 minutes) for those two cells to grow to give about 1000 cells, under optimum temperature conditions (37°C) of growth for the Salmonella.
10.If the chicken piece mentioned in paragraph 9 was kept at 30°C, it would take about 4 hours for the Salmonella to grow to about 1000 cells and more than 6 hours to reach 1000 cells if it was kept at 20°C. To grow to about 10,000 cells, it would take approximately 6 hours at 30°C and 9 hours at 20°C.
11.Salmonella typhimurium does not grow at 50-60°C, so there would be no growth on cooked chicken meat kept at this temperature.
12.The predicted growth of Salmonella on cooked chicken as stated in paragraphs 9 and 10 must also take into consideration the lag phase before growth commences. Generally, microbial cells do not commence growth immediately on transfer to a new environment. First, they enter a lag phase which is a period of adaptation before growth commences. In the case of cooked chicken meat and Salmonella typhimurium, it has been reported that this lag phase is about 2 hours for storage at 30°C and 3.5 hours at 20°C.
13.Taking into consideration expected growth rates and lag phases as mentioned in paragraphs 9, 10 and 12, cooked chicken meat (50g portion) contaminated with 2 cells of Salmonella would give a population of approximately 1000 cells after about 6 hours if kept at 30°C and 9.5 hours at 20°C. It would take approximately 8 hours at 30°C and 12.5 hours at 20°C to reach 10,000 cells or approximately 9.5 hours at 30°C and 15 hours at 20°C to reach 100,000 Salmonella cells.
14.Taking into consideration expected growth rates and lag phases as mentioned in paragraphs 9, 10 and 12, cooked chicken meat (50g portion) contaminated with 2 cells of Salmonella would give a population of approximately 100 cells after about 5 hours if kept at 30°C and 8.5 hours at 20°C."
D. How many STM135a cells present on cooked chicken meat would a person need to ingest to become ill?
...
16.The infective dose for Salmonella typhimurium is often reported to be about 10,000 cells to 100,000 cells or more for a single person, but this fact is also followed by statements that many factors affect this infective dose. These factors include, the Salmonella serovar/phage type, the food matrix, and host susceptibility such as age, immune status, debility, and any drug therapy. In some high fat foods such as cheese and chocolate, as few as 10-100 cells are believed to have caused an outbreak of salmonellosis.
17.I am not aware of any information that reports the infective dose for STM135a or outbreaks of salmonellosis arising from the consumption of cooked chicken products with low populations (100 cells) of Salmonella typhimurium.
18.I am not able to comment on the relationship between the number of STM135a cells, specifically, consumed and the severity of salmonellosis. However, there are a few reports in the literature that link the severity of salmonellosis with the number of cells initially ingested. Ingestion of higher numbers of the Salmonella have lead [sic] to earlier onset of symptoms, and more severe symptoms."
On the basis of the above testimony, I conclude, subject to any lag time that may be applicable, that, if two cells were transferred onto a piece of chicken, those two cells would multiply to 131,072 in five hours and 40 minutes; if 50 cells were transferred, the cells would multiply to 1,600 cells in 80 minutes, 6,400 cells in two hours and 20 minutes and 51,200 in three hours and 20 minutes; if 1,000 cells were transferred, the cells would multiply to 1,024,000 cells in three hours and 20 minutes; and, if 5,000 cells were transferred, they would multiply to 5,120,000 cells in three hours and 20 minutes. In other words, three spots of flour (no more than a pinhead in size) containing 5,000 cells each would multiply to three colonies of 40,000 cells in one hour.
The New South Wales Food Authority, the New South Wales Department of Health and Ageing, the Sydney West Health Service and the Sydney South West Health Service did not produce any other records in answer to a subpoena served on them that requested records of any complaints, notifications, reports or investigations into any other incidents of Salmonella poisoning occurring in connection with the defendant's Villawood store for the period of 1 October 2005 to 31 December 2005. Such records were provided in relation to the plaintiff and her family. The NSW Food Authority did not produce any notice of improvement issued to KFC for the Villawood store, during any relevant period, even though other notices were issued in the same period for similar food outlets.
Since research is still being conducted in the area of Salmonella poisoning and because there exists a fair amount of disagreement as to the relationship between the level of exposure to Salmonella bacteria or organisms and the risk of illness presenting itself, it seems safe to accept that generally speaking, over 100 to 1,000 organisms are required to be ingested for it to be likely that Salmonella poisoning would occur in a person.
However, the Court accepts that possible risk of infection actually starts at a much lower exposure level. Statistical modelling has suggested that a 10 to 20 percent probability for infection requires a dose of 100 organisms. A 60 to 80 percent probability for infection requires about one million organisms. However, in an individual case it is impossible to say how many organisms are required as one person may be more physically susceptible to infection than other people. Thus, the models are perhaps useful for statistical purposes but they are not always useful in an individual case.
Obviously, the more Salmonella cells present, the more likely it is a person will become ill. Therefore, it is possible that in a few cases, Salmonella poisoning can occur in certain people even though the dose of organisms that person ingested is much lower than the dose that would be expected to cause Salmonella poisoning in the general population (about 100 to 1,000 organisms). Professor Fleet has observed that some high fat foods, such as cheese and chocolate, may require as few as 10 to 100 cells to cause an outbreak of Salmonellosis. Therefore, I accept Professor Gilbert's opinion that although such a case would be rare, with a one or two percent possibility of occurrence (transcript 10 August 2010, at PAGE \* MERGEFORMAT 29.47), it is not impossible that some people exposed to a low number of organisms can become ill. That small threshold is raised when a person's physical characteristics, such as age, immune status, debility, and any drug therapy are taken into account.
Spread of infection on a food product
In his report of 5 July 2010, Professor Fleet considered the possibility of Salmonellosis occurring in four persons eating from two cooked pieces of chicken each weighing around 35 to 54 grams. He opined that a population of Salmonella cells would need to have some uniformity of distribution over the chicken in order for each individual to contract Salmonellosis. Professor Fleet suggested that such distribution is most unlikely because, as has been discussed, Salmonella cells progressively divide in time according to each generation. The accumulating cells remain physically localised and associated with each other, thus they do not have the ability to move themselves to other parts of the chicken meat, unless there is some means of facilitating such a spread.
According to Professor Fleet, 10,000 cells or more would occupy a space about equal to that of a pin head. If 2 cells of STM 135a were initially on the chicken pieces, there would need to be growth and extensive mixing of these cells to give some uniformity or spread in distribution throughout a 50 gram piece of cooked chicken. If the 2 cells grew to give about 10,000 localized cells of Salmonella (taking about 8 hours at 30°C), and the cells were then mixed about 200 cells/gram would be present in a 50 gram product.
Professor Fleet also stated:
"I am not aware of any information that reports the infective dose for STM135a or outbreaks of salmonellosis arising from the consumption of cooked chicken products with low populations (100 cells) of Salmonella typhimurium.
I am not able to comment on the relationship between the number of STM135a cells, specifically, consumed and the severity of salmonellosis. However, there are a few reports in the literature that link the severity of salmonellosis with the numbr of cells initially ingested. Ingestion of higher numbers of the Salmonella have led to earlier onset of symptoms, and more severe symptoms."
Dr Givney agrees that bacteria tend to occur naturally in colonies inter alia because they multiply by cell division (report dated 9 August 2010). He suggests that a chance event could result in large numbers of microorganisms being transferred from a single point on an above average contaminated piece of chicken. However Dr Givney was critical of Professor Fleet's use of the conventional laboratory doubling time of 20 minutes for bacteria in his calculations of the time it would take for Salmonella bacteria to grow, pointing out that the number of bacteria at any time depends on how many were there in the first place. I accept Dr Givney's view that the use of the "average" number of 2-4/100 cm2 to calculate this critical initial inoculum is problematic. He states:
"1.The input needs to be increased by a factor of 2 the average of 4 Salmonella/ 100cm2 since it was derived from a surface wash of chicken and not a total chicken (surface and internal) and so halving this number to account for untransferable, internal contamination is not necessary.
2.It is unrealistic to present the risk of cross contamination as though each piece of chicken carried only an average number of bacteria spread evenly over the surface of each piece of chicken. A proportion of chicken pieces may carry no bacteria, a proportion will have a few bacteria and proportion may have many.
3.It is unlikely that on any piece of chicken the bacteria will be evenly spread. They are much more likely to be clumped in colonies.
4.I am uncertain of the relevance of lag phase in this scenario.
5.There is no absolute level for an infective dose, simply an increased risk at higher doses of bacteria."
From the evidence given in relation to transfer of Salmonella, it would seem that if a piece of chicken with a localised colony of bacteria on its surface were handled, that bacteria would spread across the piece of chicken through cross contamination. Presumably, it would follow that in a situation where a piece of chicken was being shared, if one person ate a section of the chicken which contained larger clusters of bacteria than another part of the chicken they may ingest more Salmonella bacteria than a person who ate a less contaminated section. Whether or not the amount of bacteria ingested correlates with an increase in the symptoms of illness arising from infection (as opposed to an increase in the chance of infection) is not an issue in these proceedings.
Should Mrs Dous be considered to be a 'control' in relation to the family's Salmonella poisoning?
Professor Gilbert addressed the issue in her report dated 14 March 2008, page 4:
"Not everyone who consumes food contaminated with salmonella will be infected or, if infected, become ill. Some people are inherently more susceptible than others including the very young, the elderly and people who are immunosuppressed. The age at which the risk increases varies according to underlying health status, but in an otherwise [healthy] adult the risk is likely to be significantly increased before the age of 65-70 or even older. The grandmother's age and state of health are not recorded. She is unlikely to be less susceptible than other members of the family, but is quite likely to be no more so. The occurrence of infection and symptoms are dose related. The fact that the grandmother did not become ill could be because inter alia, a) she did not eat the contaminated food; b) because she ate less of the contaminated food than others or c) the portion she ate was less (or not at all) contaminated."
Dr Givney's advice of 14 December 2007 noted:
"13. In public health science there are three sorts of evidence conventionally deployed to support the hypothesis of a common source for an infectious illness: descriptive epidemiology, analytical epidemiology and microbiology. The degree of certainty increases when all three sorts of evidence are available.
Descriptive epidemiology consists chiefly of demonstrating that the sick persons have a common exposure to the source followed by the onset of illness in the expected incubation period after that exposure. Microbiological evidence has two components: demonstrating that the sick persons all have the same infectious organism and demonstrating that the microorganism is present in the source to which they were commonly exposed. Analytical evidence consists of a statistical analysis that demonstrates that there is high probability that exposure to a source is associated with illness. Analytical evidence requires a comparison of 2 populations, one exposed to the source and one not exposed.
In a household:
Multiple common exposures make descriptive epidemiology difficult. A simultaneous onset of illness is consistent with a common source but does not provide clear evidence of what that source might be...
There are usually too few people to perform a statistical, analytic study. Comparing the exposures of sick & well members of a household may be superficially persuasive but can be confounded by the different response to an exposure i.e. not everyone who eats contaminated food will become ill."
Dr Givney's report of 25 June 2009 states:
"A simple bacteriological proof of causation is inadequate & if applied as the standard in public health, would be positively harmful. It is equally untenable in proving or disproving causation. At one extreme, if a person doesn't drink from a poisoned well but dies from the same poison, it doesn't mean the well caused the death. On the other hand if everyone who drinks from the well dies, the fact that a poison can't be found in a sample from the well doesn't mean it wasn't the water from the well that caused the deaths. For less extreme cases, there are statistical methods for demonstrating how probable or not an association is without relying on bacteriological sampling."
It is clear the family suffered from the same strain of Salmonella STM135a. A simultaneous onset of illness is consistent with a common source, and as will be described below, the onset of each of the family members illnesses occurred within a relatively short timeframe, which would suggest there was a single exposure to the Salmonella bacteria that came from a shared meal. Mrs Dous is over 80 years' old, which would suggest she would be more, not less vulnerable to Salmonella poisoning. In the absence of any evidence to the contrary, it is more probable than not that Mrs Dous was not infected with Salmonellosis because she was not exposed to the Salmonella bacteria.
Identifying a common source
Background to the plaintiff's injuries
Monika was born in November 1997. She is the second of four children. Her parents are Egyptian Copts from Sudan and at the time of Monika's illness they had lived in Australia for about 10 years. They speak Arabic and English is their second language. They have varying degrees of proficiency in English. As a consequence, interpreters assisted them during the proceedings. Monika's older brother, Abanoub, was born in Sudan, while Monika and her younger siblings were born in Australia. She was 7 years and 11 months old at the onset of the illness that caused her injuries. Currently, she is fourteen years old.
Before Monika fell ill, she and Abanoub attended Sacred Heart Primary School at Villawood. There is extensive evidence in the form of work samples and other material from the school that suggests Monika was a very bright child (exhibit A).
From Friday, 22 October 2005 to Monday, 25 October 2005, Monika and her family consumed a number of meals that are suspect in determining the source of the Salmonella poisoning and events occurring around this time are relevant to a determination in the matter. At the time Monika and her family were being treated for Salmonella poisoning, health and medical professionals created a 'food history' of the family that is somewhat inconsistent with their recollection of the meals they had eaten.
Further, KFC submitted that the witnesses for the plaintiff frequently contradicted themselves in relation to this 'food history' and their movements both at the time of Monika's illness and at trial. I find Monika's parents and grandmother to be honest in their attempts at giving evidence and I think these alleged inconsistencies can be explained when one looks at the events that were occurring around the time of Monika's illness.
Furthermore, the Court is alive to the fact that it should look closely at the words used by the parties when giving evidence, and bear in mind the subtleties of language and comprehension to ensure evidence is not lost in translation.
In the following paragraphs, by way of summary, I have made a number of factual findings in relation to the meals that the family consumed. I have set out these (and other) findings in a table that is annexed to the end of this judgment. The findings, which are generally stated as 'yes' or 'no', relate to whether or not a particular family member ate a certain meal at a certain time. The evidence that was considered by the Court in relation to those findings is set out in the table.
On the evening of Friday, 21 October 2005, Mr Samaan had purchased a barbeque chicken at Fairfield at about 7.30pm for the family's evening meal. However, Mr Samaan's wife, who is Monika's mother, Mrs Hanna Shanoda, had already cooked ful (a broad bean dish), falafel and cheese. They ate Mrs Shanoda's meal and Lebanese bread instead of the chicken. About half an hour later, Mrs Shanoda was admitted to hospital and shortly after she gave birth to their third child, Barbara. That evening, Mr Samaan's mother, Mrs Dous, moved in with the Samaan family to help care for them. It is likely that Mrs Dous put the barbeque chicken in the fridge and it was probably thrown away the following day. In any event, the chicken was not a common meal to the members of the family who suffered the Salmonella poisoning.
On Saturday morning, 22 October 2005, Mr Samaan prepared a chicken schnitzel ('biftek'), for the family's breakfast and everyone at home (Mr Samaan, Mrs Dous, Monika and Abanoub) ate it. Mr Samaan purchased the chicken used to prepare the biftek either that day or on the preceding day from Red Lea Chicken (there is nothing in these proceedings that implicates Red Lea). The biftek was coated in eggs, breadcrumbs, herbs and fetta cheese (made from pasteurised cow's milk imported from Macedonia). Later that morning, Mrs Dous, Mr Samaan, Abanoub and Monika visited Mrs Shanoda in hospital and brought the biftek to her in a plastic container. However it seems that Mrs Shanoda threw the biftek out when she was alone because she was not hungry, having eaten hospital food. None of the family saw Mrs Shanoda eat the biftek at the hospital.
On Sunday, 23 October 2005, it is more likely than not that Mr Samaan prepared a chicken breast burger, presumably using the same chicken purchased from Red Lea, which he, Mrs Dous, Monika and Abanoub ate. It is not clear whether the chicken burger was made using the pre-cooked biftek that Mr Samaan had prepared the day before, or if it was freshly cooked. Given Mr Samaan's and Mrs Dous' evidence that they did not cook on Sunday, I infer the left-over pre-cooked biftek from Saturday morning was used on the burger.
At some stage that day, Mrs Dous visited her other son, Mr Samaan's brother, Aziz, and she ate a second breakfast of eggs, cheese and mortadella. Around lunchtime, Mr Samaan, Mrs Dous, Abanoub and Monika attended a party at Aziz's house. Seafood, salad and cheese were consumed at the party and none of the other 50 to 65 party guests reported any illness.
After the party, Mr Samaan, Mrs Dous, Abanoub and Monika visited Mrs Shanoda in hospital and brought her a barbeque chicken that had been purchased at Bankstown either that day or the day before. Mrs Shanoda threw out the barbeque chicken as she had had enough food from the hospital. She did not do this in front of Mr Samaan (transcript 26 July 2010, at 272). The family did not cook at home that evening and none of them consumed the barbeque chicken.
On Monday, 24 October 2005, Mr Samaan attended work as a forklift driver at the Flemington Markets. He left home at approximately 2.30 or 3 am and had some tea and cake before he left. For breakfast, Mr Samaan, Mrs Dous, Monika and Abanoub ate the home cooked chicken burger that Mr Samaan had prepared the day before.
Later that day, at 11.42am, Mrs Shanoda was discharged from hospital. Mr Samaan and his mother attended the hospital to collect Mrs Shanoda and on the way home, they stopped at KFC Villawood and purchased some chicken burgers, hot chips and orange juice. Mrs Shanoda and Mrs Dous ate the chicken burger. Mr Samaan ate nothing. Whilst at school, the children, Abanoub and Monika, ate cold meat sandwiches for lunch.
Mr Samaan retrieved Abanoub and Monika from school at about 3.15pm. On the way home, Mr Samaan again stopped at KFC Villawood and purchased a chicken 'Zinger' burger for Abanoub and a chicken Twister for Monika. He also purchased hot chips and orange juice for both children.
Mr Samaan gave evidence that prior to Monika's illness the family would visit KFC approximately once a week as a treat (transcript 5 August 2009, at 126).
On the afternoon of Monday, 24 October 2005, Mr Samaan recalled that when ordering the Twister he stood at one of three or four cash registers and he paid about $11 or $12 in cash for the food. He observed the Twister being wrapped by a young boy who came out from the kitchen behind the main service area "rolling the wrap" (transcript 20 July 2010, at 188-189).
It is not entirely clear whether Mr Samaan's use of the word "wrap" refers to the process of rolling the bread around the filling, or whether he is referring to the process of rolling some kind of paper (or similar) wrapper around the whole meal to serve the Twister to the customer. The boy was described as being young, skinny and of white European appearance. In cross examination, Mr Samaan stated that he did not see the boy take out pieces of chicken from a holding area, but observed the boy, after wrapping the Twister, place it in something like a drawer for service in the front.
A Twister appears to be a fairly substantial meal and it would seem that Monika, who was 26 kilos at the time, could not finish it. After they returned home, at around 4pm, Monika ate approximately the first third of the Twister. She then offered the Twister to the rest of her family. Mrs Shanoda and Abanoub had a piece. Mr Samaan described how Monika offered the Twister by stretching out her hand towards him and how he "cut" a bite size piece and ate bread, lettuce and tomato (transcript 20 July 2010, at 182-189). The family used the word "cut" when they described taking a piece of the Twister. I infer that the word "cut" means to tear off part of the Twister. After the family each ate some of the Twister, Mr Samaan thought there was about one quarter of it left over.
It seems the Twister did not appeal to Mrs Dous for a number of reasons: she had already taken her dentures out and washed them; she was not hungry; and she found the bread was too tough for her dentures. As a consequence she did not eat it and I accept that later in the evening she prepared a meal of bread, cheese, basturma, eggs and ham for herself.
Mr Samaan and Mrs Shanoda ate the remainder of the Twister at dinner. Mrs Shanoda also ate some sliced bread with ham and cheese. Later that night, Monika was the first of the family to get sick, by vomiting in bed. Shortly after, Mrs Shanoda and Abanoub were sick. Mr Samaan was feeling ill whilst he was at work in the early hours of the morning.
The next morning, on Tuesday 25 October 2005, at about 5am Mrs Shanoda rang Mr Samaan at work in the morning to tell him that she, Monika and Abanoub were sick with vomiting and diarrhoea. Mr Samaan's younger brother, Younan, took the whole family, except for Mr Samaan to the GP who gave them some electrolytes.
The family continued to be unwell. Monika, who had been very quiet, collapsed on Wednesday, 26 October 2005 and was taken by ambulance to the Children's Hospital at Westmead, accompanied by her grandmother, Mrs Dous. Abanoub was also taken and admitted to intensive care at the Children's Hospital. On Thursday, 27 October 2005, Mrs Shanoda was initially admitted to Fairfield Hospital but later was transferred to Westmead Hospital. Mr Samaan was also admitted to Westmead Hospital on Thursday, 27 October 2005. Around this time Monika was in a coma and last rites were administered.
As has already been stated, the foregoing description of the family's activities during the days leading up to Monika's injuries include a number of factual findings that were at issue in the proceedings. The crux of the plaintiff's case that the Twister was the only meal common to the family members who fell ill, lies on the Court accepting Mrs Shanoda's evidence that she did not eat the food which the family had prepared and brought to her in hospital. The reasons behind the Court's acceptance of Mrs Shanoda's evidence in this regard are discussed below. These findings, as presently stated, support the plaintiff's case, because it would seem the Twister was the only common meal to the affected family members (and no others) and it was consumed within the incubation period for Salmonella poisoning. The evidential basis for these findings will be discussed below.
The reliability of the family's food histories collected by health and medical professionals
The infectious diseases section of Westmead Hospital became involved when the cluster of illnesses presented to the hospitals. On 27 October 2005, at about 11pm, Dr Kevin Lai, the staff specialist in the Westmead emergency department, notified the Sydney West Centre for Population Health, which administers the notifiable disease programme, that there were patients in the Children's Hospital and in Fairfield Hospital who represented a cluster of diarrhoea or illness in a family. This notification was made before Mr Samaan was admitted to hospital.
On 28 October 2005, Ms Jennifer Paterson, an infectious diseases surveillance officer with Sydney West Centre for Population Health telephoned Mr Samaan to arrange an interview. She noticed that Mr Samaan's recall of the family's food history was poor (transcript 2 August 2010, at 587) and in cross examination Ms Paterson recalled that at the interview Mr Samaan was agitated and upset.
Mr Samaan recounted his first interview with Ms Paterson in the following way (transcript 19 July 2010, at 142):
"Q. And you knew, did you not, that Ms Paterson when she saw you on 28 October wanted to identify the source of the infection?
A. INTERPRETER: Sure, yes, and I was trying to help her to know the truth.
Q. She was anxious to identify the food which caused your family's illness, was she not?
A. INTERPRETER: Yes, so she can help other people before it spreads too.
Q. And you knew that Mr Crone was anxious to identify the source of the infection, did you not?
A. INTERPRETER: Yes.
Q. And you gave them details of what you say you had eaten in the days before you became ill?
A. INTERPRETER: Yes.
Q. Did you try to help Ms Paterson and Mr Crone in their enquiries?
A. I'm pretty sure I tried a lot but I was in a position where all my kids were sick somewhere. My brain was in shock.
Q. On the first visit, that is the visit of Ms Paterson on 28 October when she questioned you, was there an interpreter present?
A. INTERPRETER: No, there wasn't because she came another time. Because she came another time, that's why. I think that's why she came another time.
Q. You understood the questions Ms Paterson put to you on the first visit, did you?
A. INTERPRETER: I nearly understood it, there was a non-official interpreter.
Q. There was an interpreter there, wasn't there?
A. INTERPRETER: Just one, just one but he wasn't very strong in interpreting, he was our cousin.
Q. He was who --
A. INTERPRETER: Our cousin.
...
Q. Just to be clear about this, the first occasion you say an interpreter was a family member, right?
A. INTERPRETER: Yes. He wasn't an interpreter, a real interpreter, he was 50/50 and he interpreted as he would but she came a second time."
On 29 October 2005, Mr Samaan discharged himself from hospital, against medical advice, to be near his wife and Monika. He described his state of mind at the time (second further evidentiary statement of Amanwail Samaan, dated 22 June 2009):
"2.I recall that Jennifer Paterson came to interview me the day after I was admitted to hospital. As far as I can recall when I was interviewed by a woman who I am told is Jennifer Paterson on the first occasion she was not accompanied by an interpreter. During that interview I was still very sick with Salmonella poisoning, I was dehydrated and had diarrhoea and vomiting. I recall having to stop the interview more than once to go to the toilet.
Liliana Teixeira
Liliana Teixeira was Restaurant General Manager at KFC Villawood in June 2005. In October 2005, she was General Manager of the store. Ms Teixeira had staffing problems relating to theft from time to time, as well as other forms of dishonesty, for example, handing out food for which there had been no payment, for example, to friends of staff.
Ms Teixeira cleaned the store in the morning and evening and throughout the day as necessary. KFC Villawood did not have professional cleaners and so it was up to the staff to do their own cleaning, including the floor in the restaurant area (transcript 4 August 2010, at 735). Ms Teixeira also noted that occasionally she had behavioural problems with the staff, including locking each other in the cool room.
The witness never saw staff throwing food at each other or the cooks lifting the lid off the cooked chicken without washing their hands. She never saw chicken fall and land on flour, yet from time to time she did see chicken fall out and land on the floor. This chicken was never put in the henny penny (transcript 5 August 2010, at 774).
Ms Teixeira did note that there were problems keeping up the standards at the KFC Villawood store in the last 6 months of 2005. She did regularly see flour on the handle of the cool room door. In addition, the witness observed people at the burger station only wearing one glove between June and December 2005 (transcript 5 August 2010, at 765). In re-examination, it was clarified that in these circumstances, the ungloved hand was holding tongs (i.e. there was never a bare hand touching food at the burger station).
Travis Dobson
Travis Dobson was employed as a cook, and then an All Star (meaning he was trained to perform all duties in a KFC store) at KFC Villawood. On 24 October 2005, Mr Dobson was on duty at KFC Villawood. Mr Dobson could not recall what his main duty would have been on that day (i.e. whether he was cooking, serving customers or on the burger station).
Mr Dobson's personal hand washing practice was to wash his hands "every single time... no matter what" (transcript 5 August 2010, at 789). Mr Dobson saw other people doing the same. When working on the burger station, Mr Dobson recalled that everyone wore gloves. However, the witness noted that gloves were not worn when 'breading-up', a practice that was in accordance with KFC Health, Sanitation and Food Handling Procedures.
Mr Dobson stated that the cooks would clean as they went as this was something on which Ms Teixeira was very strict. Mr Dobson never saw people entering the cool room with flour on their hands; chicken fall out of a clam after it had been cooked; chicken on the shelf after its tag time had expired; chicken that was cooked on its use by date rather than being discarded the day before; the clam taken out of the oil onto the breading table; flour on the cool room handle; or people being locked in the cool room as a joke (transcript 5 August 2010, at 803-4). Mr Dobson never saw chicken pieces fall on the floor, nor did he see employees throwing food around (transcript 5 August 2010, at 791-2). Indeed, Mr Dobson's evidence was that he never saw anyone depart from any KFC food safety rules during his shifts at the store (transcript 5 August 2010, at 803).
Mr Dobson knew about cross contamination (transcript 5 August 2010, at 806), however his evidence does not definitively support a conclusion that this knowledge can be attributed to KFC training. Moreover, Mr Dobson's evidence was that he was never given information about the possibility of raw chicken having Salmonella (transcript 5 August 2010, at 815).
Staff behaviour at KFC Villawood - Conclusion
Generally, the evidence was consistent that the standards set by KFC were not met during the latter half of 2005. I do not accept the evidence of Mr Dobson, at least insofar as it relates to other employees. His demeanour, and if it be different, his reaction to questioning, showed no basis upon which one would be confident of the truth or accuracy of his evidence. On the other hand, the demeanour of Ms Recaj, Ms Ruda, Ms Cabassi and, especially, Mr Alhindawi rendered their evidence completely believable. I would expect the skylarking of which they gave evidence to occur less in the presence of the manager, and not occur at all when the Area Managers, and others in the more senior hierarchy, were present. I also conclude that some of the witnesses were, consciously or otherwise, downplaying the level of misbehaviour until confronted by specific examples or independent evidence.
Mr Samaan's evidence as to the preparation of the Twister
Mr Samaan's recollection of the purchase of the Twister is as follows (second further evidentiary statement of Amanwail Samaan, dated 22 June 2009):
"9.I recall that there were a number of people waiting in the queue behind me at the time I ordered. I recall that the Arabic speaking girl who served me took a chicken burger and two packets of hot chips and put these into a bag. She did not however make the chicken Twister.
10.This was done by a young boy who came out from the kitchen behind the main service area specifically to make the Twister. I recall that this boy appeared very young, skinny and of white European appearance.
11.I observed him as he took out pieces of chicken from a holding area. He put these pieces in a tortilla with lettuce and wrapped it up in paper packaging using his hands. I do not recall whether he was wearing gloves and I do not recall seeing him put gloves on or take them off when he came out from the kitchen to make the Twister."
The defendant submits this evidence is "manifestly false". The defendant submits that it was not possible for Mr Samaan to have observed the Twister being prepared because of the way KFC Villawood is physically set up. Mr Samaan described his recollection under cross examination (transcript 20 July 2010, from 187). I accept his evidence that the store appeared to be busy with school children. Given the foregoing findings, the evidence of how and where the Twister was prepared has no rational effect on the issue of food safety at KFC Villawood. Moreover, I do not consider (assuming Mr Samaan is wrong as to what he said) that this affects his 'truthfulness' but rather his recollection (otherwise excellent) of an event that was, at the time, unexceptional. Moreover, Mr Samaan may well have seen (despite the limited visibility from the front of the counter of the kitchen and preparation area) a person move from the cooking area to the preparation area and assumed (and generally believed) that was for the preparation of the Twister.
Conclusion
The plaintiff has only faintly raised the possibility that the strips in the Twister could have been undercooked and while there is some evidence that standard procedures were not being followed at KFC Villawood around the time Mr Samaan purchased the Twister, there is nothing that would satisfy the Court the Twister that Monika ate could have been undercooked. The cooking time was automated. The chicken was not 'pink' and, unless the chicken were frozen (of which there is no evidence), it is most improbable that it was undercooked.
The defendant has submitted that there is no evidence of where the relevant strain of cross infective Salmonella might have originated and if the chicken strip was free of Salmonella upon its supply to KFC, improper handling of the type described by the store employees before cooking could only infect the chicken with Salmonella if there were some other source of Salmonella in the store that would provide a means for cross infection. The logic in this submission is flawed in that the expert opinions from both sides agree that there is a 35 to 50 percent likelihood that the chicken supplied to KFC contains Salmonella. Further, the evidence is clear that there are readily available sources for cross contamination if food were mishandled or if KFC hygiene practices were not followed.
The defendant submits that there is no evidence from which the Court can infer that the strip was exposed to a Salmonella source after deep-frying. If a piece of chicken were to fall onto the breading table or even the floor, it is submitted, it would have just come out of boiling oil in a metal container at 175ºC and would remain too hot at its surface for Salmonella bacteria to multiply for some appreciable time. If put in the henny penny (kept at 60ºC), it would become free from Salmonella (or certainly, any Salmonella cells would not grow), even if it had somehow picked up cells after cooking. The clams were too hot to handle with bare hands.
If the Twister somehow were to come into contact with Salmonella bacteria during the assembly process, the defendant submits that the cell growth would need to reach an infective dose level distributed evenly across the two chicken strips within about 20 minutes of exposure at 37°C, as it is suggested that the plaintiff's evidence was that the Twister was eaten within approximately 15 minutes of purchase. In fact the plaintiff's evidence is again vague as to the approximate time the Twister was eaten (see for example transcripts 4 August 2009, at 75.5 -.11; 20 July 2010, at 182.5 -.37; 183.2 -.48; 158.45). Monika came home and looked at the new baby before she ate her meal. It is therefore likely the Twister was eaten about 20 to 30 minutes after it was purchased. The defendant suggests it is statistically improbable, within this time frame, for Salmonella to become distributed throughout the Twister with enough toxicity to cause four people (two adults and two children) to be ill from eating approximately 15 to 25 grams each of chicken meat. I accept the statistical improbability of such an occurrence.
Further, the defendant appears to base this argument on Professor Fleet's estimations of the standard distribution of bacterial growth on a single piece of chicken. The defendant has not addressed the issue that the Twister (as the C.H.A.M.P.S. manual implies) tends to cool down more quickly than other KFC products, which presumably would be due, in part, to its other ingredients, including mayonnaise sauce, which could also facilitate the spread of bacteria throughout the product. This is a second issue only touched upon in the evidence and submissions of both parties.
The question of distribution of Salmonella bacteria is a vexed one. In some senses it is a 'red herring' when it is considered in relation to the question of what possible dosage of bacteria each family member could have ingested. The only evidence that was presented in this regard was that some people may be more susceptible to Salmonella poisoning than others. Therefore there is a possibility that one person may ingest more Salmonella cells than another and either not become sick or be less ill than the person who ingested fewer, and vice versa. It is not possible to assume that Monika ingested more Salmonella bacteria than the rest of her family, from which premise the parties worked. It is possible that Monika did not ingest many, or any, more bacteria that the rest of her family, but that she was unlucky either in that the Salmonella poisoning she experienced was marred by other complications or that she may have been, either due to her size, or due to other physical reasons, more susceptible to the illness than the rest of her family.
The defendant submits that the question of cross contamination can also be discounted for the reason that the burger station employee making the Twister would have also made the burger purchased by Mr Samaan for Monika's brother, Abanoub. Therefore, it is suggested that if the cook had dirty hands, or the Twister was placed on a contaminated preparation area after cooking, it would be expected that the burger would also have been infected. The defendant suggests that this is known not to be the case as the plaintiff claims the only common food eaten was the Twister. However, the defendant's submission in this regard defies logic. The plaintiff, Monika, brings this case, hence the plaintiff's concentration of its case on the Twister. It is impossible to draw the defendant's asserted conclusion on the basis that the plaintiff claims that the only common food eaten was the Twister, thus it was only the Twister that could possibly have been contaminated. Abanoub was also ill, whether or not this illness came from the Twister alone, or also from the burger, is not to be determined by the fact that the Twister was the only common food to the family.
The defendant argues that any tendency evidence in relation to the sometimes lacklustre food handling procedures by KFC staff at Villawood must be weighed against the following evidence:
(a)No other person complained of falling ill or at all about food supplied by the Villawood store on that date;
(b)No records were produced by area health and food authorities of complaints, notifications, reports or investigations into any other incidences of Salmonella poisoning having any connection with the defendant's Villawood store for the period 1 October 2005 to 31 December 2005;
(c)There were no penalties, warnings, improvement notices, prohibitions or other notices issued by or on behalf of the NSW Food Authority in respect of the KFC Villawood store during 2004 and 2005;
(d)The defendant has no record of any other complaints or notifications relating to Salmonella poisoning made by customers of the KFC Villawood store during the years 2003, 2004 and 2005; and
(e)The KFC employees called by the defendant had more experience in the Villawood store and generally presented more credibly than those called by the plaintiff.
Evidence of underreporting of food borne illnesses has been presented to the Court, which I accept. The lack of documentary evidence in relation to any relevant complaints adds some weight to the defence, however, the real issues lie with the evidence of KFCs employees in relation to whether there is some possibility that the Twister Mr Samaan purchased for Monika could have become contaminated through errant food handling procedures between the time Crispy Strips had been cooked and the time the finished product was handed to Mr Samaan.
It is accepted that if food preparation and food handling procedures are properly followed, the risk of infection is so low it is close to nil, that is, almost impossible. The evidence from KFC employees, from the expert evidence and from the KFC's food handling guides canvassed the following theoretically possible causes of contamination:
(a)The Crispy Strips were not cooked for long enough.
(b)The henny penny was at the wrong temperature.
(c)The Crispy Strips were left in the henny penny for too long - i.e. they were no longer fresh.
(d)Tongs were used to remove the Crispy Strips that may have been contaminated with flour or blood, which carried the Salmonella bacteria.
(e)The Crispy Strips were dropped on the floor.
(f)The Crispy Strips were placed on top of the breading table and came in to contact with flour.
(g)The hands of the person who prepared the Twister, either gloved or ungloved, carried Salmonella bacteria, which was transferred to the Twister.
The evidence of mishandling of the chicken provides enough weight, when combined with all of the other evidence, to enable the conclusion to be drawn that it is more likely than not Monika's Twister became contaminated while it was being handled or made up. The evidence, relating to infectious doses leads to the conclusion that it is not theoretically impossible for four people to become infected from one chicken Twister. From a careful process of reviewing, accepting, and at times excluding, the evidence given by both the food authorities and by the Samaan family as to the food eaten during the 72 hour incubation period, I conclude that realistically, the only, and at least the most probable, carrier of the Salmonella bacteria that caused the family's illness was the Twister that Mr Samaan purchased from KFC's Villawood store on 24 October 2005.
This matter has caused some difficulty. While the primary facts were settled at a very early stage, including the attitude of the Court to the veracity and reliability of the oral evidence, the effect of that evidence on liability has caused some difficulty in resolution.
As is clear from these reasons up to almost 50 percent of all farmed chicken has some Salmonella. KFC has implemented a process that, when followed, renders impossible the survival of Salmonella cells. That process is described in this judgment. Further, KFC has an audit system to ensure that the process is followed. The process includes: ensuring the raw chicken is cooked at temperatures and for a time that will ordinarily destroy Salmonella; cooked chicken is kept warm for no more than a maximum period, also at temperatures that would maintain the food at a temperature that would, itself, destroy Salmonella or at least prevent its growth; hand-washing regimes; and regimes for the use of cooking tools and equipment. The processes, as stated earlier, are summarised herein.
In the ordinary course, again assuming compliance with KFC procedures, it is effectively impossible to contract Salmonellosis (Salmonella poisoning) from KFC. Moreover, as earlier stated, compliance with those procedures is strictly enforced by KFC and regular unannounced audits are conducted.
The foregoing renders the likelihood of KFC being the cause of this injury remote and the occurrence generally highly improbable. The degree of improbability is also affected by the number of cells likely to cause illness to each of the affected members of the family and the sales records, which disclose no order that, as a whole, was the same as Mr Samaan's order (on his evidence).
Against that improbability is the fact that each affected family member did contract Salmonellosis and, most probably, contracted it from chicken. The only chicken meal, according to the oral evidence, which I accept, common to each affected family member, was the Twister from KFC. The acceptance of the oral testimony of Mr Samaan, Mrs Shanoda and Mrs Dous necessarily leads to that conclusion. However, the systems in place at KFC warranted a reconsideration of the testimony of the witnesses. Truthful witnesses can be mistaken and their truthfulness must be re-assessed.
The effect of the KFC system, rendering, as it does, the contracting of Salmonella poisoning impossible, must be qualified by the evidence of the aberrant behaviour at this store. First, there is the "breakdown" score on audits before and after the alleged purchase. Second, some of those breaches to the high standard set by KFC related to issues affecting (or that may affect) these issues, for example, the temperature of the warming tray and the longer than prescribed time before use. Third, there is the skylarking by employees at this store of which KFC central management (except vicariously) were unaware. Lastly, there is the lack of total accuracy in the cash register results and the capacity, in that area in particular, for human error.
A Twister was purchased at 3.10pm. That was at or about the time Mr Samaan says he purchased a Twister. A difference of half an hour in the estimate of the time of purchase by the witnesses is unremarkable. The Twister was purchased after school and the "inconsistency" in the time makes no difference to the likelihood that the oral evidence is otherwise accurate and truthful. These were unusual days because of the birth of the baby and the unusual timings may not be probative. Further, the fact that KFC cash registers record a sale of a Twister without any other product does not detract from the evidence of Mr Samaan that he ordered another product. It is far more likely that Mr Samaan's order was split into the Twister and one or other orders.
It is unnecessary for the Court to find the precise breach in the KFC procedures that has led to the Salmonella cells remaining or being transferred to the Twister. However, there is no suggestion that the Twister was not cooked properly. The timing and temperature of the cooking is automated. For the detailed reasons in the judgment it is unlikely that, if there were Salmonella cells on the pieces of raw chicken, they would have survived the cooking. The chicken, while being cooked, would reach well over 60°C, which would have destroyed the cells.
On the other hand, given the evidence that I accept of the behaviour of the employees, it is likely, if Salmonellosis were contracted, there was cross contamination of the Twister pieces after cooking, most likely by contact with flour or other dipping material used previously on the raw chicken, or possibly by handling (manually or with cooking utensils). Moreover, it is more likely than not that the tray operated at a temperature that did not ensure the chicken (or, more relevantly, the Salmonella cells) remained at or above 50°C, which means that any Salmonella on a piece of chicken (probably on a clump of foreign material) in the warmer tray for any but a short moment, would have experienced an optimum reproduction environment, augmented by the effect of applying sauce and the delay between sale and consumption during which the temperature of the food would have fallen even further. The effect of that augmentation would have spread and multiplied the Salmonella. This is one of the reasons that KFC has placed such importance on processes that destroy Salmonella and prevent its reintroduction after cooking.
I do not have to be convinced beyond reasonable doubt of the occurrence. However, I have to be satisfied on the balance of probability. Submissions (and evidence) showing a reasonably available hypothesis inconsistent with KFC having supplied the offending chicken are not strictly on point.
Nevertheless, by the lower standard of balance of probabilities, I must be satisfied that the Salmonellosis was contracted from KFC. If there were another reasonable possibility, given the KFC procedures, I could not be convinced, even on the balance of probability, of the liability and responsibility of KFC.
Ultimately, the existence of another reasonable possibility depends on the evidence that is otherwise accepted. I accept, without qualification, the evidence of Mrs Shanoda that she ate the hospital food and not the additional relevant food brought to the hospital by her family.
I do not consider the evidence of the food inspectors as inconsistent with the evidence of Mrs Shanoda. I accept that their notes derive from statements at the hospital made by Mr Samaan, not Mrs Shanoda. Mr Samaan knew only what was brought to the hospital, not what was eaten.
Further, the testing of the remaining raw chicken at the Samaan home gives added confidence to the foregoing view. However, that testing would not, by itself and without more, be sufficient to displace the possibility of other causes.
Finally, for all of the foregoing reasons, I am satisfied, on the balance of probabilities, that:
(i)Monika Samaan contracted Salmonellosis from ingesting Salmonella cells on chicken;
(ii)The source of that chicken was a KFC Twister brought by Mr Samaan on the afternoon of 24 October 2005 and consumed predominately by Monika within an hour and in lesser quantities by her family (except Mrs Dous and the newborn); and
(iii)Monika Samaan's Salmonellosis developed into Salmonella Encephalopathy.
As a consequence of the foregoing, KFC is liable to Monika Samaan for damages arising from her injuries and I so determine.
Given the nature of the KFC audits and procedures, real questions arise as to the extent to which vicarious liability ought to attach to the action of those departing from such procedures, in some cases deliberately. If this store were a franchise store, KFC would most likely not be liable, having taken all practical steps to ensure compliance with the procedures. However, this was not a franchise store. Further, given the improbability of an infective dose from KFC generally, if there were another possible source of infection on the evidence that I accept, liability could not be imposed on KFC.
Ultimately, the law enforces a policy that employers are liable for the acts of their employees. This policy has been implemented at least since 1701: see Hern v Nichols (1701) 1 Salk 289 per Holt CJ and the modern approach is described recently in Hollis v Vabu (2001) 207 CLR 21. But the policy basis for such liability, particularly in circumstances where steps of the kind here have been taken, makes more obvious the call for no-fault liability insurance to cover disabilities. The determination of liability on a business for the aberrant and disapproved conduct of its employees is unfair. Ultimately, it is less unfair than the liability falling on the victim, who has, on the balance of probabilities, contracted a disease from goods purchased and on which she should be able to accept were edible.
Breach of duty of care
As earlier stated, the plaintiff pleads its causes of action in negligence, contract and statutory causes of action under the Trade Practices Act, Fair Trading Act and Sale of Goods Act.
An extensive exposition of the legal principles is unnecessary. As KFC have been found, as a matter of fact, to have produced product contaminated with Salmonella cells, the product is not of merchantable quality, not fit for its known intended use and otherwise not in conformity with the description. The provision of such product, intended as it was for human consumption is a breach of contract and a contravention of a number of warranties implied either by the common law or statute.
Further, as the Court has stated elsewhere, the Court is of the view that the contamination occurred after cooking, by cross contamination with product (directly or indirectly) that was contaminated with the bacteria and, more probably than not, a clump of flour or other such material that was contaminated. That contact was a breach of the procedures mandated by KFC and was negligent, or the use of it after such contact (also a breach of KFC procedures) was negligent.
These proceedings have been contested on a factual basis, not on the basis of an absence of liability if the facts were concluded against the defendants. This is an appropriate course to have been taken.
Nevertheless, some adumbration of principle is appropriate. First, I deal with the alleged contravention of the Trade Practices Act. Clearly, KFC, in processing and selling chicken product is engaged in trade or commerce. I do not, for present purposes, distinguish between the duties under the Trade Practices Act and the Fair Trading Act, which are relevantly identical. Further, to the extent relevant, the terms of Schedule 2 to the Competition and Consumer Act 2010 are relevantly identical to ss 66, 70, 71, 74, 74B, 74D of the Trade Practices Act.
The statutes impose on the provider of goods (or services) to a consumer a duty to guarantee that the goods are of acceptable quality, fit for purpose to be used (if known), and that the goods meet the description of the goods. As earlier stated, if the goods sold were contaminated with Salmonella, the goods were not of acceptable quality; not fit for the purpose for which they were sold (namely, to be eaten); nor does the item meet the description of the goods: see, inter alia, Ryan v Great Lakes Council [1999] FCA 177; (1999) 102 LEGRA 123.
A later discovered defect, which the supplier (in this case KFC) does not prove did not exist at the time of supply, is a latent defect for which the supplier is responsible: Effem Foods Ltd v Nicholls [2004] NSWCA 332. If there were contamination in the chicken supplied, it could only be from a failure by KFC through its employees, to implement the procedures required by KFC and, therefore, impossibility of discovery does not arise: Graham Barclay Oysters v Ryan [2000] FCA 1099; 102 FCR 307.
Further, the duties imposed by the common law of contract and/or the Sale of Goods Act are such that this later discovered defect, which existed at the time of sale, renders the goods unmerchantable and/or not reasonably fit for the purpose required. The contract (including statutory warranties) has been breached and damages must flow. To the extent that authority for the foregoing is required, there is abundant authority and I refer to Henry Kendell & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 particularly at 74, 75, 77 and 79, per Lord Reid and to Dixon J in Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 at 413. Reference should also be made to McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1988) ASC 55-695.
Lastly, there is a cause of action in negligence, governed by the Civil Liability Act 2002, and of particular current relevance, ss 5B, 5C and 5D thereof.
As these reasons and the evidence from KFC itself, and the experts, make clear, the risk of harm from Salmonella is foreseeable. Steps have been taken by KFC to ameliorate the risks. The risk is not insignificant and no reasonable person in the position of KFC would decline to take the ameliorating steps, particularly having regard to the possibility of harm and the burden in taking the steps, even bearing in mind the utility to the community of the supply of these products.
In this case, the general requirements of KFC, if followed, eliminate the risk of contamination. The contamination has occurred because of the failure of one or more employees of KFC to adhere to that procedure. The failure to adhere to the procedure was negligent and, more probably than not, given the infective doses most likely to have been on the food, and the steps otherwise taken by KFC to avoid contamination, involved food coming in contact with flour (or some other substance) that was old (in the sense of hours) and significantly affected by Salmonella. I infer the employee 'dusted off' the chicken leaving small clumps of infected 'flour' on the chicken. The Salmonella cells continued to multiply before and after sale and were spread by the use of sauce and other such additives.
Frankly, there is little any employer can do about behaviour of an employee inconsistent with the procedures mandated by the employer, other than better supervision or better training. There is some evidence, which I accept, that some employees were unaware of the full consequences of a breakdown in the system that was to be implemented. Such knowledge would no doubt impact on the conduct of employees. Nevertheless, the conduct of the employee was negligent and KFC, as the employer, is vicariously liable for the negligence: Hollis v Vabu, supra.
The relationship between KFC, Mr Samaan and Monika created by the purchase and sale of the product and the consumption of the product as a result of the sale creates a duty of care in KFC to persons in the class of those intended to consume the product: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Adeels Palace v Moubarak (2009) 239 CLR 420; Donohue v Stevenson [1932] AC 562; [1932] All ER Rep 1.
But for the negligence of the staff, the harm to Monika would not have occurred: Adeels Palace, supra. Liability for the damage to Monika arises in negligence as well.
It is unnecessary, at this time, to deal with any difference in the calculation of damage in contract or in tort (or under statute). Those issues are matters for assessment of damage.
Appendix 1
Table of factual findings
Which family member ate what meal at a particular time and date and the evidence considered in relation to those findings.
This is a table of only the meals that are relevant to this matter. It is not intended to be a complete list of every food item consumed by the Samaan family.
| Wednesday, 19 October 2005 | |||||
| Dinner | |||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |
| BBQ chicken purchased on 19/10/05 from a shop in Smart Street Fairfield Mr Campbell: T 2/8/10 p 542, T 3/8/10 p 548-552 | Not at issue | Yes | Possible | Yes | Yes |
| Thursday, 20 October 2005 | |||||
| Dinner | |||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |
| BBQ chicken purchased on 19/10/05 from a shop in Smart Street Fairfield Mr Campbell: T 3/8/10 p 548-552 | Not at issue | Yes | Possible | Yes | Yes |
---------------------------------------incubation period begins ---------------------------
| Friday, 21 October 2005 | |||||
| Dinner | |||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |
| BBQ chicken purchased at Fairfield | No | No | No | No | No |
| Ful (fava or broad beans), lebanese bread, falafel and cheese Mr Samaan: T 19/7/10 pp 149; 164 - 165 | Not at issue | Yes | Yes | Yes | Yes |
| Saturday, 22 October 2005 | ||||||
| Breakfast | ||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | ||
| Biftek prepared by Mr Samaan | Yes | Yes | No | Yes | Yes | |
| Hospital food | No | No | Yes | No | No | |
| Lunch and dinner | ||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | ||
| Biftek eaten at other times during the day Mr Crone: T 3/8/10 pp 614-615 | No | No | No | No | No | |
| Fetta and ham and cheese sandwiches prepared by Mr Samaan | Yes | Yes | No | Yes | Yes | |
| Hospital food | No | No | Yes | No | No | |
| Sunday, 23 October 2005 | ||||||
| Breakfast | ||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | ||
| Breakfast of eggs, cheese and mortadella at the home of Mr Samaan's brother, Aziz Mrs Dous: T 20/7/10 p 214 | Yes | No | No | No | No | |
| Chicken breast burger and salad presumably using the biftek prepared by Mr Samaan on Saturday | Yes | Yes | No | Yes | Yes | |
| Biftek prepared by Mr Samaan on Sunday Mr Crone: T 3/8/10 pp 585, 618-619 | No | No | No | No | No | |
| Hospital food | No | No | Yes | No | No | |
| Lunch | ||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | ||
| Fish, salad and cheese consumed at a party hosted at Aziz's house. Ms Paterson 2/8/10 p 496 | Yes | Yes | No | Yes | Yes | |
| Whole BBQ chicken purchased from Bankstown and taken to Mrs Shanoda in hospital Mr Crone: T 3/8/10 pp 584, 614 | No | No | No | No | No | |
| Hospital food | No | No | Yes | No | No | |
| Dinner | ||||||
| Fish, salad and cheese consumed Aziz's party - see above (Sunday lunch) | Yes | Yes | No | Yes | Yes | |
| Hospital food | No | No | Yes | No | No | |
| Other statements in relation to meals at unspecified times | ||||||
| No chicken eaten on Sunday | No | No | Possible | No | No | |
| The family did not eat food they had cooked over the weekend. | No | No | Yes | No | No | |
| "A home cooked chicken meal" served to family on 23 and 24 October - most likely the chicken burger | Yes | Yes | No | Yes | Yes | |
| Hospital food | No | No | Yes | No | No | |
| Monday, 24 October 2005 | |||||||
| Breakfast | |||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |||
| Chicken and salad burger or biftek prepared by Mr Samaan on Sunday 23 October 2005 Mrs Shanoda 26/7/10 p 272 | Possible | Yes | No | Yes | Yes | ||
| Cold meat sandwich Mr Samaan: T 19/7/10 pp 168 | No | No | No | Yes | Yes | ||
| Hospital food | No | No | Yes | No | No | ||
| Lunch | |||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |||
| Two chicken burgers purchased from KFC after 1pm, chips and orange juice | Yes | No | Yes | No | No | ||
| Chicken 'Twister' meal purchased from KFC after 3.15pm, chips and orange juice Mr Crone: T 3/8/10 pp 614-615 | No | Yes | Yes | Yes | Yes | ||
| Chicken 'Zinger' burger purchased from KFC after 3.15pm, chips and orange juice Mr Crone: T 3/8/10 pp 614-615 | No | No | No | No | Yes | ||
| Dinner | |||||||
| Mrs Dous | Mr Samaan | Mrs Shanoda | Monika Samaan | Abanoub Samaan | |||
| Bread, cheese, basturma, eggs and ham Mrs Dous: T 20/7/10 pp 226 | Yes | No | No | No | No | ||
| Sliced bread with ham or mortadella and cheese. | No | No | Yes | No | No | ||
------------------------------------incubation period ceases ------------------------
Amendments
| 23 Apr 2012 | A number of formatting errors and typographical were corrected. Amendmends made do not affect substance or effect of judgment. | Paragraphs: |
| 23 Apr 2012 | Paragraphs: |
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