Food allergies: know your rights and responsibilities

Imagine ending up in hospital after eating seafood. Or watching your child suffering anaphylaxis after eating peanuts. Allergic reactions can range from mild to severe, and they can sometimes be fatal, so they should be taken seriously.

According to the Australasian Society of Clinical Immunology and Allergy, food allergy now occurs in around one in 20 children and about two in 100 adults. Some of the most commonly consumed foods can cause allergic reactions, including milk, eggs, wheat, soy and nuts.

So how can you protect yourself and your children against food allergens? And when you’re cooking for other people, do you need to put any safeguards in place? Here’s what you need to know about your rights and responsibilities around food allergies.

Speak up: informing people is your responsibility

When you’re planning to eat out at a restaurant, make it part of your routine to call ahead and warn the restaurant about your allergy. If you don’t call ahead, it’s your responsibility to tell the wait staff about your allergy when you’re ordering your food.

In any case, it’s always safest to ask what ingredients will be in your meal and to let the restaurant staff know if you or anyone eating with you has an allergy.

You should explain:

  • which food(s) you, your child or your friend is allergic to
  • the seriousness of the allergy, and
  • what happens if the affected person eats the food to which they are allergic.

Anyone who knows of your allergy and the seriousness of your condition should take reasonable precautions to ensure their actions don’t cause you harm.

Parents should act on behalf of their kids in any situation where there might be food, including calling ahead if necessary. This could be for a party, an educational event or something as seemingly harmless as a sporting event.

Your right to safety

If you’ve adequately warned a restaurant about an allergy, and a person suffers a reaction that causes injury or death, you may be able to sue for negligence.

Where a description of a food that you purchase – such as on a restaurant menu – does not list a potential allergen and someone with a food allergy consumes it, this may constitute a breach of the Australian Consumer Law and/or show negligence.

Remember to notify your family and friends

When you’re eating in a more casual environment, it’s vital that you tell your friends and family about your or your children’s allergies. However, when you're at a friend's house or hosting people at your place, the expected standard of care is lower than at a restaurant. This means a lot of legislation doesn’t apply. Ordinary people aren’t professional food handlers and can’t be expected to know all the guidelines.

If someone has failed to warn you they're allergic to a particular food, it's unlikely they'll be able to sue you if they get sick from eating it.

If you feel you can't reasonably avoid serving someone food that may cause an allergic reaction, you should notify them that you can't guarantee this.

However, each case isn’t clear-cut, and determining liability in a situation such as this is difficult. You should contact a lawyer if you believe you were served food that caused an allergic reaction.

Know your EpiPen responsibilities

For many people with allergies, keeping medication such as an EpiPen autoinjector close by can be life-saving in the event of an anaphylactic reaction.

If you or your child has been advised by a medical practitioner to carry an EpiPen, it’s your responsibility to know how to use it, and to ensure that your child knows how to use it.

The Australasian Society of Clinical Immunology and Allergy recommends practising using a trainer device every three to four months.

But when it comes to allergic reactions, prevention is always better than cure. You should do whatever you can to protect yourself, your children and the people around you.

TOPIC: Public safety
RELATED LEGAL SERVICES: Public liability

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Dimi Ioannou

Maurice Blackburn Melbourne
Dimi Ioannou is a principal and Practice Group Leader at Maurice Blackburn Lawyers in charge of the firm’s Public and Product Liability team in Melbourne. Dimi is an accredited specialist in personal injury law. Dimi works in the area of public liability and represents clients in a wide range of consumer law litigation involving different product liability claims. Dimi also represents families at coronial inquests, acting on behalf of the families of those who have died as a result of negligence, as well as many victims of institutional abuse. She is specially trained in trauma informed practice which ensures she works with clients to access justice in a way that recognises the complex trauma they have suffered. Dimi has also represented hundreds of road accident clients who have lodged compensation claims with the Transport Accident Commission. Dimi is passionate and committed about defending the rights of her clients’ entitlements. She knows that the legal world can be daunting, therefore, makes the process as easy as possible for those she is advocating on behalf of. She has provided legal advice to many Maurice Blackburn clients and has been active in litigation in both the County and Supreme courts. She also advocates in many forums for the rights of those who have sustained serious injuries. “We’ve been helping clients for almost 100 years at Maurice Blackburn, and public safety is something I take very seriously. It’s important that people know they are protected if something goes wrong through the negligence of someone else and I pride myself on achieving a just outcome for those affected”. Dimi speaks fluent Greek and is actively involved in Melbourne’s Greek community. Accreditations & memberships Law Institute of Victoria Accredited Personal Injury Specialist Australian Lawyers Alliance member Law Institute of Victoria Public Liability Committee member Law Institute of Victoria Litigation Lawyers Executive Committee member  Leadership program, Mt Eliza Business School, 2014  ...

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