Foreign Contaminant in a Can of Tuna Purchased in Maroubra Causes Rectal Bleeding
Published 21 Jun 2017
Mr LK is an African national who immigrated to Australia. He had purchased a can of tuna from a departmental store. Upon opening the can and mixing the contents with some boiled rice, he discovered that there was a contaminant which he believed was glass. Thereafter he had abdominal pains, and bright red bleeding when passing faeces. He was admitted into hospital for observations and scans. The scans did not reveal any contaminant within his intestinal tract and the actual source of the bleeding could not be identified, however it was possible that the bleeding was caused by his recurring haemorrhoids.
As the source of the blood was not properly identified, he continued to have a genuine and honest belief that he had ingested glass and this has caused him some internal damage.
He continued to feel depressed and fearful of the contaminant, instructed that he had lost in excess of 10 kg within a short period of time.
LK at the time of the incident worked in the construction industry where he earned in excess of $88,000.00 per annum. He instructed that as a consequence of this incident, he was unable to return to work on a full-time basis. He also instructed that he required consultation with a psychiatrist at least 2 times per week.
These instructions were maintained from the beginning of the matter all the way until an Informal Settlement Conference. This point is particularly important as it has a fundamental effect on the final outcome of the claim.
This claim had all the potential to be a significant claim for damages. In relation to liability, the distributor of the can of tuna in their mandatory reporting to the ASIC following a food contamination identified a manufacturer located in Canada. They had failed to properly mark the batch number. They had failed to retain the can and a bag of the tuna which contained the contaminant for proper testing. Following the service of a letter of demand, the distributor identified an alternative source of the tuna who denied that they were the source of the tuna based upon the distributor’s compulsory reporting notes. If it were not for this flaw in the distributor’s reporting, LK would not have a claim at all because an expert’s opinion was obtained which suggested that the contaminant could be a natural colouring crystal known as struvite which would dissolve immediately in gastric acid.
Because of the distributor's failures, Gerard Malouf and Partners pressed forward with the claim based upon LK's instructions.
If LK's instructions had been truthful that he was continuing to have psychiatric consultations of 2 times per week and that he was suffering a loss of income in excess of 50% of his time at work, his case would have been in excess of $400,000.00.
At an Informal Settlement Conference documents were shown by the two defendants that indicated that LK had only attended upon a psychiatrist on 2 occasions quite early following his incident and no other treatment thereafter. He had produced an unpresented script for Seroquel which also was dated shortly after the date of incident. Further documents produced indicated that LK had not lost any time at all in relation to his employment and that he in fact earns more post-accident.
All this information came as a surprise to us as we do not investigate our clients and take them on face value in accordance with their instructions.
The credibility of our client was completely destroyed and he failed to recognise that he ran the risk of being accused of committing insurance fraud.
Mr LK continued to defend his position stating that he did ingest that contaminant and this did cause him injury and harm of a psychological nature. That it was because of his African heritage that he continued to work despite his psychological injuries and that he did not attend the psychiatrists because it is not in his culture to do so.
It is not the incident which is alleged to be fraudulent. The incident itself is one for a matter of evidence. The fraud comes in that he had engaged in asserting a loss for the purpose of a financial gain through deception.
As a consequence, the matter resolved for a verdict for the 1st defendant and a verdict for the 2nd defendant with each of the defendants to meet some of the legal costs the plaintiff had incurred.
This matter highlights the importance of being completely honest with your solicitors in providing instructions so that appropriate advice could be given in a timely manner. The purpose of a claim is for the Courts to restore a person to the position prior to an accident, not to provide compensation that would exceed a person's losses.
Although Mr LK did not at the time see the reason why his case would fail, we believe in time he will recognise that if he had only been up front with his actual medical and financial position, he would have been properly compensated.