Frozen berries evidence crucial for hepatitis A compensation claims

Marissa Calligeros
The recalled frozen berries.
The recalled frozen berries. 

Consumers should ignore instructions to throw out packets of frozen berries that have been linked to a hepatitis A outbreak if they ever want to seek compensation, lawyers say.

Three people in Victoria, four in Queensland and one in New South Wales have contracted hepatitis A after eating Nanna's frozen mixed berries, which were available in one kilogram packets in supermarkets, including Woolworths, Coles and IGA.

The outbreak has led to a national recall of one kilogram packs of Nanna's Frozen Mixed Berries and packs of 300 grams and 500 grams of Creative Gourmet Mixed Berries, with health authorities urging consumers to immediately throw out the packets or return them for a full refund.

But Brisbane-based compensation lawyer Mark O'Connor, who has eaten Nanna's berries, said consumers should keep any packets they may have because they could become crucial evidence in a future compensation claim.

"My advice is put them in a clearly marked bag and store them in the freezer as possible evidence, should any be needed later. The berries in your freezer would become your receipt and your proof," Mr O'Connor said.

"I have been eating berries from this brand so I'm storing mine in the freezer just in case.

"Inevitably it's going to lead to some compensation claims and I'm in the unusual situation, having eaten them myself, of also being a potential victim."

Victorian laws were changed some years ago to ensure that only very serious cases of food contamination qualify for compensation, but public safety solicitor Dimi Ioannou of Maurice Blackburn Lawyers agreed with the advice from Mr O'Connor.

Melbourne-based Ms Ioannou said possible compensation claims could be denied by insurers if victims could not prove a connection to the infected berries.

"Consumers who contract hepatitis A and lodge a claim will need to prove that they purchased the berries," she said.

As a result of the Victorian law reforms, a person can only seek damages for pain and suffering in a negligence action if they suffer a "significant injury", which means a "permanent physical impairment" affecting at least five per cent of the "whole person". If there is no permanent impairment, there is an extremely  limited claim for damages for pain and suffering.

Therefore a case of hepatitis A, from which a victim usually makes a full recovery, is unlikely to meet a significant injury test, Ms Ioannou said.

But she said it was still crucial to keep the packs of berries as evidence for any potential case.

Hepatitis A can take between 15 to 50 days to develop following exposure to the virus.

It is spread when traces of faecal matter containing the virus contaminate hands, objects, water or food that come into contact with the mouth.

Symptoms include abdominal pain, nausea, fever and chills and jaundice (yellowing of the skin or eyes).

Health authorities have advised anyone who has consumed the berries to seek testing from their GP.

The Nanna's Frozen Mixed Berry product is packed in China and distributed in Australia by Patties Foods, which is based in Bairnsdale in Victoria's east Gippsland region.

The Creative Gourmet products, which were packaged in the same plant as Nanna's berries, were voluntarily recalled by Patties on Sunday.

Poor hygiene amongst Chinese workers, as well as contaminated water supplies, are among likely causes of the outbreak.

Concerned consumers can contact the Department of Health and Human Services communicable disease and prevention control on 1300 651 160 or the Department of Health and Human Services food safety on 1300 364 352.

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