Records reduce liability

It has been a challenging year for those in primary production.

Aside from the tough climatic conditions in a number of areas, two of the most high profile issues have been the listeria outbreak in rockmelon and the needles in strawberries.

Could a primary producer be held liable in relation to either of these situations?

The answer is yes, in certain circumstances.

The first is the more general concept of negligence.

In broad terms, this means that there is an onus on the primary producer to ensure, for example, that the food is fit for human consumption.

To show that the primary producer had been negligent, it would have to be shown that they did not take the necessary steps to ensure that the food was fit for human consumption, someone was affected by the food and this outcome was reasonably foreseeable.

The second way in which a primary producer might be liable is under the Food Act 2001, which applies in SA. Again in broad terms, under this Act, it is an offence to handle food in an unsafe manner or to sell food that is known to be unsafe.

There are potentially significant penalties for breaches of the Act, with penalties of tens of thousands of dollars.

So what can primary producers do? It is impossible for primary producers to guarantee every single piece of produce is completely free from any contamination. 

But, they can ensure they take all reasonable measures and have suitable systems in place to try and ensure contamination does not occur. 

For example, the act provides a defence in circumstances where it can be shown the person took all reasonable precautions and exercised all due diligence to prevent the contamination.

This might include measures such as inspecting the produce before it leaves the property.

The problem may have been caused by someone further along the supply chain. It is therefore important, as much as possible, that written records are kept regarding the food and what has been done with it on the property.

It is one of those situations where it is important to be aware of the potential risks, but not alarmed.

This article was written by Partner, Anthony Kelly, and first appeared in The Stock Journal on Thursday 13 December 2018.  

Practice Area: Court Litigation & Dispute Resolution , Farm Law

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