A Sydney girl has been awarded damages in the NSW Supreme Court after contracting salmonella poisoning following the consumption of KFC at Villawood in Sydney.
The plaintiff was 7 years old at the time that she consumed the KFC and became violently ill. The plaintiff went into a coma for 6 months and thereafter suffered brain damage including quadriplegia.
In 2010 a trial was held in the Supreme Court and in April 2012 the NSW Supreme Court ordered the plaintiff to be paid $8 million plus legal costs after the lengthy litigation case.
KFC have indicated that they will appeal to the NSW Court of Appeal, however at the time of writing of this article no documents have been filed.
The case illustrates an extreme example of how food poisoning can result in dire consequences in appropriate circumstances, resulting in brain damage. Food providers have a duty of care to their customers to ensure that the food supplied is of an appropriate standard and of merchantable quality so as to prevent risk of the contraction of food poisoning or disease.
Vicki Everingham was a member of staff who worked for Geoff Provest, the Local State Member of Parliament. On the 6.8.09 Vicki Everingham attended a work trip to Sydney to attend Matthew Talbot Hostel and also to Parliament House for a meeting with people in Sydney concerning a homeless project in the Tweed. She attended with Geoff Provest and with other members from the local community.
Upon her return from Sydney Vicki became increasingly sick with a respiratory infection. She was initially admitted to Murwillumbah Hospital then John Flynn Hospital then Prince Charles Hospital Brisbane. All up she was in hospital for over 4 months and put on a ventilator for a period with multiple other infections.
Subsequently in Brisbane it was diagnosed that she was suffering from H1N1 infection, a swine flu infection which was isolated to the work trip to Sydney. The insurance company denied liability on the basis that the timing of the infection was outside World Health Organisation Guidelines, notwithstanding the fact that 3 of the other people on the trip to Sydney became sick and one person subsequently was pathology tested positive for HIN1 swine flu.
The insurer denied liability based on WHO Guidelines which shows the time of infection as outside the trip to Sydney. Attwood Marshall obtained expert evidence from a respiratory physician and from Professor Dominic Dwyer who was an expert in infectious diseases linking the time of the infection to the work trip to Sydney to the 6.8.09.
Vicki has developed pulmonary fibrosis and is reliant on oxygen to get by during the day. Vicki has been advised that she will need a lung transplant in a few years once the pulmonary fibrosis condition deteriorates.
Vicki is almost certainly totally incapacitated for all forms of work for the rest of her working life at the age of 54 and therefore it was of crucial importance that Vicki was to win her case to provide her with some economic stability in the future.
Approximately a week before the matter was to be heard in the Commission the insurer withdrew their defence and accepted that Vicki had a valid work related injury which was in the form of swine flu contracted on a work related visit to Sydney in August 2009. Vicki will be paid lump sums for 40% whole person impairment and an amount for pain and suffering.
As far as our research is concerned this is the first case in Australia of a detected swine flu infection directly related to exposure to swine flu during the course of employment. We believe that the insurer did not want to run the case on the basis that the case may set a precedent for future swine flu cases for people who contract swine flu during the course of employment. It is our strong belief that if the case did run for a hearing before an arbitrator that there was cogent and compelling evidence to indicate that the contraction of swine flu arose in or out of the course of employment.
Vicki will now receive lump sums in excess of $125,000 for the impairment and pain and suffering that she has been through, weekly payments of worker's compensation back dated to August 2009, past medical expenses totalling in the vicinity of $70,000 and weekly payments of worker's compensation until she reaches 66 years of age. The insurer will also meet all of her medical expenses and travel expenses and pharmaceutical expenses and oxygen expenses for the rest of her life.
The case gives significant relief to the applicant who otherwise would have had a devastating economic and medical future without the help of coverage under the worker's compensation system.
We are happy to answer any questions in relation to any possible claims that you might have. We accept these claims on a "no win no fee" basis and do not charge for the initial consultation.
For more information, please contact our office on 1800 621 071 or complete our online enquiry form by clicking here.
Attwood Marshall have been contacted by a number of clients of Mark Flynn, Solicitor, formerly practising at Ballina NSW.
Mr Flynn's Practising Certificate has been suspended by order of the Law Society in NSW.
Attwood Marshall has received enquiries from former clients of Mr Flynn seeking assistance with the further carriage of their matters. Any persons wishing to make enquiries as to the transfer of their file or further safe conduct of their matter are urged to contact Attwood Marshall Lawyers on 1800 621 071 or 07 5536 9777 or email rgarrett@attwoodmarshall.com.au.
Slips and falls happen everywhere we go. Negligence or not? You may find this case particularly interesting if you have ever suffered from a slip or fall incident in a supermarket or shopping centre areas.
The High Court has handed down its decision in Strong -v- Woolworths Limited [2012[ HCA5. Kathryn Strong, the appellant, was successful in her case before the NSW District Court, unsuccessful in Woolworths appeal before the Court of Appeal in NSW, and was successful again in her appeal to the High Court of Australia.
Kathryn Strong, a right leg amputee, suffered a fall at a Taree shopping centre when the tip of her right crutch came into contact with a greasy chip that was lying on the floor of the sidewalk sales area. One of the crucial issues in the appeal was whether it was incumbent upon the plaintiff (Mrs Strong) to prove how long the chip or substance had been on the floor for. In the joint judgment of French CJ, Gummow, Heydon, Crennan and Bell JJ the court made the following findings at paragraph 34:
"Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited."
The High Court found that the appellant Mrs Strong was required to prove on the balance of probabilities that Woolworths' negligence was a necessary condition of her harm. Woolworths' negligence lay in its failure to employ a system for the periodic inspection and cleaning of the sidewalk sales area. Mrs Strong was required to prove that had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall it is likely that the chip would have been detected and removed before she approached the entrance to Big W. In the circumstances there was no dispute that had the area been inspected the chip would have been detected and removed. Given that the sidewalk sales area was not inspected in the 4½ hours between the time when the area was set up for the day's trading and the time of the appellant's fall, Mrs Strong was able to prove negligence.
The court found (at 38) that reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area which was adjacent to the food court.
This case is important for plaintiffs who suffer slip and fall incidents in supermarkets or shopping centre areas. The case indicates that it is not necessary for the plaintiff to show how long the substance was on the floor for and that overall consideration of probabilities apply based on evidence as to the frequency and adequacy of the cleaning systems employed by the occupier.
We are happy to answer any questions in relation to any possible claims that you might have. We accept these claims on a "no win no fee" basis and do not charge for the initial consultation.
Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…
We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.
You can call us on 1800 621 071 or use ourOnline Enquiry Formto send us your details.
A recent case has come before the NSW Workers Compensation Commission wherein Arbitrator Phillips SC found that the worker's contraction of Lymes Disease is an injury sustained during the course of employment in Soutar -v- Pacific Bay Investments Pty Ltd t/a Coffs Harbour Pacific Bay Resort [2011] NSW WCC480.
Lymes Disease manifests in an illness with symptoms of severe rash and muscular and neurological problems similar to multiple sclerosis.
Commonly Lymes Disease is transferred by tick bites which infect the human blood stream in transmission from the tick to the human during the biting process.
Lymes Disease can have a serious and debilitating effect on the sufferer and can result in prolonged periods of incapacity for work and the need for very expensive medical treatment totalling over $1,000.00 a month. Authorities in Australia have been reluctant to acknowledge the existence of Lymes Disease and very few medical practitioners are properly trained in the treatment of this condition.
The case is of particular significance to workers who work in outdoor industries, for example forestry, horticulture, farming, landscaping, building, greenkeeping, gardening and many other occupations that involve work in an outdoors environment where the risk of exposure to tick bite is high.
Workers who have contracted Lymes Disease from tick bites during the course of employment are encouraged to make a worker's compensation claim. Under the NSW Workers Compensation Act a strict time limit of 6 months applies for the lodgement of a claim which can be extended up to 3 years in certain circumstances. Given the serious and debilitating effects of Lymes Disease it is important that the disease be properly identified and treated early and a claim lodged early so that the expensive medical treatment can be met by the worker's compensation insurer. Sufferers of Lymes Disease under the Workers Compensation Act are able to make a claim for weekly benefits during their incapacity off work, payment of medical expenses and possibly also payment of lump sums under Sections 66 and 67 of the Act for pain and suffering provided that the injury is determined to be serious enough.
If workers have been bitten by a tick during the course of employment and suffered Lymes Disease symptoms afterwards they are encouraged to seek legal advice.
Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…
We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.
You can call us on 1800 621 071 or use ourOnline Enquiry Formto send us your details.
A Sydney girl has been awarded damages in the NSW Supreme Court after contracting salmonella poisoning following the consumption of KFC at Villawood in Sydney. 
Vicki Everingham was a member of staff who worked for Geoff Provest, the Local State Member of Parliament. On the 6.8.09 Vicki Everingham attended a work trip to Sydney to attend Matthew Talbot Hostel and also to Parliament House for a meeting with people in Sydney concerning a homeless project in the Tweed. She attended with Geoff Provest and with other members from the local community. 
Slips and falls happen everywhere we go. Negligence or not? You may find this case particularly interesting if you have ever suffered from a slip or fall incident in a supermarket or shopping centre areas.
Lymes Disease manifests in an illness with symptoms of severe rash and muscular and neurological problems similar to multiple sclerosis.