Can You Sue a Restaurant for Food Poisoning?

The dine-out culture in Lagos quietly evolving. There have been more restaurant openings in the last couple years than any other period in recent history. Lagosian diners are embarking on wonderful culinary adventures with no thought to the elephant in the room - food poisoning.

Food poisoning does happen, unfortunately. People go out, pay for a nice meal, and the next morning, your life turns into a shambles because you have a case of food poisoning. Today, we’ll educate you on your legal options if this does happen.

To be clear, when we say ‘food poisoning’ we aren’t talking about  a situation where someone intentionally introduces a substance into your food to cause you serious harm or to kill you. That’s a Nollywood movie...or attempted murder, and in that situation, you have bigger things to worry about, my friend.

Food poisoning refers to a wide variety of food-borne illnesses which can be caused by bacteria, viruses, mould, fungi, parasites, etc. For example, you can get food poisoning in the form of salmonella - a bacterium transmitted in undercooked poultry. You can also get food poisoning from pesticides on produce that hasn’t been adequately washed. Mild food poisoning can cause discomfort, diarrhoea, and vomiting. Severe food poisoning can cause permanent damage to the organs, and in some cases, even death.

Let’s imagine we have a friend called Tayo.

Last night, Tayo got  dinner at Fancy New Bistro in Ikoyi (not a real restaurant, any reference to any individual or business is entirely incidental), and is now suffering from food poisoning.

What law protects her and what law can she sue under?

She can sue under the tort of Negligence.

Negligence is an action in the law of torts. In simple terms, if  Person A has a duty of care to Person B, if this duty has been breached and  damage has occurred, Person B can sue.

So, in our context, the Fancy New Bistro has a duty of care to Tayo. Their only job here is to exercise reasonable care, i.e.maintain a safe environment for the storage and preparation of the food.

For Tayo to sue under negligence, she must prove Fancy New Bistro did, in fact, cause the food poisoning…and this is really where it becomes problematic.

Proving causation is often difficult in cases of food poisoning. Not only must Tayo prove that she has suffered from food poisoning, she must also prove that it was the restaurant’s food and not food from somewhere else that caused the illness. The source of the food must be isolated and identified, and this involves consulting a doctor and running tests.

If you are reading this, then you are probably thinking at this point:

‘This is too much stress, I will have food poisoning, then now be going to Nigerian hospital to be doing yeye test, no point in suing them jare, I will just call them out on social media, maybe leave a comment on a food blog, and never go back to eat there again’.

This is the approach which 99% of people will take.

However, if you are in the 1% that  want to sue, either because it happened to you and a large group of people all dining out e.g. at a birthday dinner, or it was a very expensive meal, or you just want to sue on principle, then you should get a doctor to run a few tests.

So going back to our friend, Tayo, if she crosses the medical report hurdle and can prove that the food did indeed cause her illness, then the next hurdle to cross is that she has suffered some form of damage. This is fairly easy to prove if she was ill after eating the food. However, if she got dinner  with her boyfriend, Chike, and he didn’t suffer from food poisoning, then only Tayo can sue. Chike can’t sue despite eating ‘possibly contaminated food’. This is because he has not suffered any damage.

Damage is a key element in suing in negligence.

Once Tayo can prove she  suffered damage, then these are the possible things she could try to claim for in her lawsuit:

  1. medical bills
  2. lost income (if she was unable to work while ill)
  3. out-of-pocket expenses (this would include transport fare to the hospital, phone calls to her doctors, cost of running the tests etc)
  4. pain and suffering, and
  5. emotional distress.


Should you sue for food poisoning?

As mentioned above, 99% of people (not a scientific fact, this is a guesstimate) who suffer from food poisoning at any particular time, do not decide to hire a lawyer to sue the restaurant. They just complain through other channels and blacklist the restaurant. Or they hit up the Eat.Drink.Lagos comment section and it’s lit. If you are one of those people who would never sue for food poisoning, but would like to take some action if it ever happens to you, you can take the following steps:

Report the restaurant to the Local Government (LG)

The LG is largely responsible for overseeing restaurants in a location. If you write a complaint to the LG, the LG will send a food inspector to the restaurant to ensure it is following all the appropriate standards.

Report to the State Ministry of Health

In cases of food poisoning where there is an underlying problem,e.g. Unhealthy conditions in the kitchen of the restaurant, there is a high possibility that hundreds/thousands could be affected. So informing the State Ministry of Health gives them the opportunity to make a measured response in case it becomes an epidemic (e.g the cases of norovirus in the USA)

Report to the Consumer Protection Council

If you are in the 1% that would sue, then the first thing you should know is that any lawsuit is time-consuming and can be expensive. You’ll need to evaluate how petty you are and if  it’s financially (and emotionally) worth it to pursue your claim. Once you decide to pursue a claim, you need to move quickly. The evidence for a food poisoning case is, by its nature, short-lived. The sooner you start gathering evidence, the better.

Apart from the things mentioned above that you might be able to claim (medical expenses, lost work etc.), if the court finds that the restaurant acted with gross negligence, you may also be entitled to what is known as “exemplary” damages. Exemplary damages are not linked to a cost that you incurred, they’re just a punishment for the restaurant. Gross negligence may occur where a restaurant has been notified of an issue which could have caused the food poisoning, but has failed to act.

So just to recap, we have covered what food poisoning is, what you will need to prove in a lawsuit for food poisoning, what damages you can claim, and what other options you have if you do not want to sue.

We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. No lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer.

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