Poisoning in a restaurant: what to do and who is responsible

Publication date: May 4, 2023

The story of the practice of lawyers of the NGO “Public Legal Aid Service” cannot be called successful, but rather instructive, because the legal assistance provided had a positive result. In general, the algorithm of actions in a similar situation will be useful to customers of cafes and restaurants, and their owners. Lawyer Oleksii Kormiletskyi explains how to resolve the situation decently and in compliance with the rights and laws if a guest of the establishment was poisoned by a dish from the menu.

Oksana* got poisoned instead of having a holiday. Before placing an order in one of the city’s restaurants, the woman warned the waiter that she was allergic to seafood. But the seafood was still included in one of the ordered dishes, so Oksana felt sick. The situation was so dire that an ambulance had to be called just during the dinner.

Oleksii Kormiletskyi, a lawyer at the Public Legal Aid Service, heard this story from Oksana, a resettled person from Luhansk Oblast. He advised the woman and helped her file a claim against the catering establishment, as well as prepared a complaint to the State Service of Ukraine for Food Safety and Consumer Protection.

After getting acquainted with the claim, the restaurant’s administration asked Oksana not to apply to the court and the State Service of Ukraine for Food Safety and Consumer Protection. And although they did not return the money to the victims. They agreed that the woman and her family would eat at this establishment for a certain period of time for free and safely.

Lawyer’s comment

Given the current situation, it is worth referring to Articles 4 and 7 of the Law “On the Protection of Consumer Rights”. They state that the services must be provided in accordance with the contract (check for payment), and also that these services must be safe.

In our case, the following legislative acts were violated:

• According to Art. 627 of the Civil Code of Ukraine, in contracts with the participation of a natural person — a consumer, the requirements of the legislation on the protection of consumer rights are taken into account.
• The rights of consumers and the mechanism of their protection are provided for in the Law of Ukraine “On the Protection of Consumer Rights”, according to which consumers, when purchasing products sold on the territory of Ukraine, have the right to necessary, accessible, reliable and timely information about products to satisfy their personal needs, its quantity, quality, assortment, as well as about its manufacturer (seller).
• According to the Law of Ukraine “On Basic Principles and Requirements for the Safety and Quality of Food Products” (Article 1, Term 44), a dangerous food product is a food product that is harmful to health and/or unfit for consumption. This article also states that when establishing the danger of a food product, the special sensitivity of the organism of a separate category of consumers is taken into account, if the food product is intended for this category of consumers.
• That is, if ingredients were found in the dish that are not listed on the menu as components of this dish, this is a violation of the above law.

How to prove the fact of poisoning in a restaurant/cafe?

It will be easier to prove the fact of poisoning if you have a receipt that will confirm your stay at the restaurant, which is a direct contract with the other party.

But if you left the check at the institution, lost it, or threw it away, don’t worry. In this case, you should enlist the support of witnesses who saw that you were in a restaurant and ordered certain dishes. Next, you need to get medical documentation that will confirm the fact of food poisoning.

Where to submit a statement and evidence?

Before going to court, try to settle the issue with the administration of the institution in a pre-trial procedure. Write a statement to the management of the restaurant in compliance with the general rules established by the office; a state in the application the circumstances that caused your complaint; be sure to include evidence to support your words (a medical certificate from a health care facility about poisoning). Often, restaurant owners are concerned about their reputation, which means they are interested in resolving the conflict as soon as possible.

What to do if the owner of the establishment refuses to take responsibility?

If it was not possible to come to an agreement “peacefully”, you should contact the territorial body of the State Service of Ukraine for Food Safety and Consumer Protection. If the institution refuses to compensate you for the expenses in connection with the poisoning and does not admit its fault, you have the right to seek the protection of your rights and interests in court.

*Name has been changed for ethical reasons.

The material was created within the framework of the “Regional Coordinators” Initiative. The initiative is launched with the support of the international charity platform GlobalGiving and the Legal Empowerment Fund (Fund for Global Human Rights program) and the Legal Development Network. The content of the publication is solely the responsibility of the Legal Development Network and does not necessarily reflect the views of the previously mentioned organizations.

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