Allergic reactions lead to food allergy compensation

Allergic reactions such as food allergy or anaphylaxis should always be taken seriously as they can range in severity and, in the most extreme cases, can be fatal. People who suffer from an allergic reaction due to negligence at a restaurant may be eligible for a food allergy compensation claim.

According to the Australasian Society of Clinical Immunology and Allergy, one in 20 children and about four in 100 adults are allergic to foods. Commonly consumed foods such as milk, eggs, wheat, seafood, soy and nuts can cause severe allergic reactions.

Our client, Barry, tragically lost his wife of 43 years, Ruth, after she suffered an anaphylactic reaction to a café meal that she requested be dairy free. She told the wait staff she was highly allergic to dairy but there was a mix-up with meals and she was served the wrong one.

Speak up: informing people about your food allergy and allergic reactions is your responsibility

When eating out at a restaurant or cafe, it’s your responsibility as the person with the food allergy to clearly tell the wait staff what you are allergic to and what you can and can’t eat when ordering meals or drinks.

You should explain:

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

Your right to food allergy safety

If you’ve adequately warned staff about your food allergy and suffer a reaction you need to report the allergic reaction - whether it is mild, moderate or severe - to your health department. Then an investigation can be undertaken and actions can be put in place to help prevent it from occurring again. 

If in the tragic circumstance where adequately warned staff provide a food that causes death or injury, you may be able to sue the business through their insurer for negligence.

If you inform a food service about an allergy, they must give you accurate information of the content of the dish and make sure they serve you food that does not contain the allergen specified.

When you’re eating in a more casual environment, such as at a friend or relative’s house, it’s vital that you inform them about any food allergies you or your children have. The expected standard of care is lower in this situation than at a restaurant, which means a lot of legislation does not apply. In addition, ordinary people aren’t professional food handlers and can’t be expected to know all of the relevant guidelines. People with food allergy are generally more involved in meal preparation or bring their own food to functions in these circumstances.

How could Australian restaurants improve how they deal with food allergies?

Since his wife’s death, Barry has been campaigning to improve the situation for people with allergies in Australia so that others don’t have to experience what he has been through.

“If I can get every restaurant in Australia to change the colour of the plate, take a plate for the person with food allergy to the customer one at a time or take some other action to increase safety so it doesn’t happen again, then I will be happy,” Mr Hickey said.

He also pleads for mandatory training for hospitality staff and a reminder on menus for those with food allergy to always disclose their allergy.

“When I asked about hospitality training and food safety training, there was no mention of food allergy; the focus was on bacteria, temperature control and using the right chopping boards for chicken or red meat. Food allergy management was not part of food safety training yet this can kill someone within minutes.” he said.

“There was no actual subject with dealing with allergens. I just cannot believe we train up these people to go out into the marketplace when they can actually cause someone to die and we don’t say anything at all about that.”

In 2018, as part of the National Allergy Strategy, free online training was launched for those in food service.

Where can you go to for more information?

Allergy & Anaphylaxis Australia is a not-for-profit organisation dedicated to improving awareness of allergies in the Australian community.

In addition to promoting research on the issue, the organisation also provides guidance and support to Australians managing life with food allergies and anaphylaxis.

When it comes to allergic reactions, prevention is always better than cure. Almost always, death from food anaphylaxis could have been prevented. You should do whatever you can to protect yourself, your children, the people around you and importantly, if you work in food service, your customers.

Client, Barry, claimed for food allergy compensation


Share this article on:

Dimi Ioannou

Maurice Blackburn Melbourne
Dimi Ioannou is a Principal Lawyer 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 ...

Read more

See all contributors