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VIC Nannas Frozen Mixed Berry Recall - Sue for Personal Injury?

Discussion in 'Personal Injury Law Forum' started by Berry Mum, 15 February 2015.

  1. Berry Mum

    Berry Mum Member

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    Hi. I’m really worried because I saw in the news that there’s been a product recall of Nannas Frozen Mixed Berries (1kg) that were contaminated with Hepatitis A! I use them all the time in my smoothies each morning. I haven’t been feeling well recently, but have ignored as I’ve been busy and thought I’m just run down. Now I’m worried it might be symptoms of something worse and I’ll definitely need to go to my doctor this week. If it turns out to be Hep A, what should I do? I’m guessing I could sue for personal injury and it seems like I wouldn’t be the only one? Thanks for your help.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Berry mum,

    A very similar situation to this was encountered in the 2002 High Court of Australia case of Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 in which customers at a restaurant contracted Hepatitis A after consuming contaminated Oysters. The contamination was found to be caused by heavy rain run off into the lake where the oysters were farmed. The injured persons sued the distributors of the Oysters, the council and the state claiming that they were negligent.

    The High Court held that the distributor of the oysters, although they owed a duty to customers to take reasonable care to ensure their oysters were fit for human consumption, they did not breach that duty and were not liable.

    However the plaintiffs were successful in an action under the Trade Practices Act (now the Consumer and Competition Act 2010 (Cth), which includes the Australian Consumer Law and its consumer guarantees) alleging that the oysters were not fit for purpose or of merchantable quality.

    Whether or not you will have recourse to sue Patties Foods (owner of the Nannas brand) in this situation if you do contract Hepatitis will depend on how the berries became contaminated and whether this was due to a lack of due care or negligence on the part of the Patties Foods.
     
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  3. Berry Mum

    Berry Mum Member

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    Thanks. So what should I do with the rest of the berries in the packet that I haven't eaten yet? Do I keep them as proof?
     
  4. Worldly1

    Worldly1 Well-Known Member

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    John R likes this.
  5. John R

    John R Well-Known Member

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  6. Neil1959

    Neil1959 Member

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    Hi, I am seeking advice on behalf of myself and 200 members of a facebook group dealing with a possible future court case. Many people are concerned that what they write might jeopardise their outcome. It has been suggested that if people need to sound off they should prefix their comments with the words "without prejudice". Any suggestions you have would be greatly appreciated.
     
  7. Sophea

    Sophea Well-Known Member

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    Dear Neil,

    I'm not sure what you mean by sound off - or what type of statements or information you are trying to keep either from the court's view or prevent the defendant's ability to use certain information or statements made on the forum. However I would imagine that the use of "without prejudice" will not achieve the desired outcome. Here is a little bit of information on the phrase "without prejudice" as used in the legal world.


    The purpose of the "without prejudice" privilege is to encourage the resolution of disputes by eliminating any opportunity for one party to use settlement negotiations against the other. For example The use of the phrase by party A in a letter making an offer of settlement will prevent party B from arguing that Party A's willingness to compromise during negotiations is evidence of their liability or their case's lack of credibility. Put another way it enables parties to negotiate - make compromises etc without the risk that their willingness to compromise will be used against them if negotiations fail.

    Without Prejudice privilege will only apply to statements made during genuine negotiations to settle a dispute, and will prevent those statements being put before a court as admissible evidence against the person who makes the statement. This is where many people get confused. They believe that anything that you put "without prejudice" in front of - can be kept from the court or excluded from evidence. However this is not the case, and any statements that are not made as part of genuine settlement negotiations can be used as evidence in court.

    The concern I suppose will be that on the forum, there will be a lot of chatter by plaintiffs which may disclose facts or information that the other party may not ordinarily be entitled to learn. For example any advice received from your lawyers on prospects of winning - this can be catastrophic for settlement negotiations and running a case. If I were the lawyer for the class action I would suggest that any public forum about the case should be shut down. If you need to communicate in that way with other plaintiffs I would suggest some confidential and private platform. Simply using "without prejudice" will not cut it.
     
  8. Neil1959

    Neil1959 Member

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    Hi Sophea,

    Appreciate your wise comments. 'Sounding off' is referring to people expressing their worries or concerns. The site is an information hub where people can get updates on media reports, health bulletins and general information regarding the Hepatitis A scare. It was also started as a collection point of names if there was a class action raised. I am one of the admins but it was started by another member. The actual site has the name "class action" as part of the heading and is a closed group. I am the most active admin and have been suggesting to people not to apportion blame to any company in writing or give advise that might jeopardise the case. Would you advise the lead admin to change the name of the group?
     
  9. Sophea

    Sophea Well-Known Member

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    I don't see any problem with the site name being called class action, but I would just be aware, that should you commence legal proceedings, the defendant's lawyers will be watching any such forums very closely (in fact probably are already to monitor potential claims), and will generally be able to use anything they find as evidence against you if it prejudices your position somehow. Once you retain lawyers you should ask for their specific advice on the forums etc.
     

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