The plaintiff
ings this action to recover damages to compensate him for his suffering as a result of contacting typhoid fever at a wedding feast catered by the defendant.
The evidence indicates that six other wedding guests contacted typhoid fever in the circumstances similar to the plaintiff's.
On March 20, 1971, the plaintiff was a guest at a wedding
followed by a reception at the Balmy Beach Club in Toronto. He
partook of the usual food and drink. Seven days later he
ecame ill with symptoms described by him as being similar to
influenza. After 10 days he developed high fever, chills,
nausea, headaches and insomnia. His symptoms diminished and after his release on April 23, 1971. He returned to his job as a sales representative; however, he experienced difficulties there due to loss of stamina and inability to withstand pressure.
Evidence was given on behalf of the defendant through its
president, Mr. Van Petroff. He has 25 years' experience in the
catering business. He confirms that on March 20, 1971, his
company provided the food for the wedding reception in
question.
The reception took place on a Saturday, and some of the food was
prepared on the Friday, including potatoes and ca
age rolls.
These were refrigerated overnight and put in trucks for delivery to the Balmy Beach Club on the Saturday. The food was heated one hour before being served.
Mr. Petroff's understanding of the health regulations is that
his employees must undergo a yearly X-ray for TB, and he must
keep his premises clean. He maintains that the premises are
inspected every month and he complies with the aforementioned
equirements. In addition, there are signs on the premises
eminding employees to wash their hands after using the toilets. Soap and towels are kept on hand. No other instructions are given to the employees. No spot checks were made to ensure that employees obeyed the hand-washing rule.
Three or four of the defendant's employees were involved in
preparing the food on the defendant's premises, including Mrs.
I. Mrs. I was uncovered as the typhoid ca
ier after the public
health officials had tested all of the defendant's employees by
means of stool samples.
Mr. Petroff was on the premises for part of the day on
Friday, March 19, 1971. He does not know if Mrs. I used the
washroom on that particular day. While he admits that it is
possible for the employees to neglect to wash their hands afte
using the washroom, he says that his employees are experienced
and aware of the standards with respect to hairnets, hands and
shoes. In this case it is common ground that the plaintiff contracted typhoid fever from food which had been contaminated by Mrs. I. The evidence supports the position that neither Mrs. I nor the defendant was aware that she was a typhoid ca
ier at the material time.
In dealing with the issue of liability on this case three
matters must be considered:
(1) Does the federal Food and Drugs Act confer a cause of action on the plaintiff?
(2) Is the defendant guilty of negligence – why or why not?
(3) Is there strict liability on the part of the defendant? Explain.