Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd

Supreme Court of NSW|2009-08-11|Before: Rothman J

Background to the plaintiff's injuries 70Monika was born in November 1997. She is the second of four children. Her parents are Egyptian Copts from Sudan and at the time of Monika's illness they had lived in Australia for about 10 years. They speak Arabic and English is their second language. They have varying degrees of proficiency in English. As a consequence, interpreters assisted them during the proceedings. Monika's older brother, Abanoub, was born in Sudan, while Monika and her younger siblings were born in Australia. She was 7 years and 11 months old at the onset of the illness that caused her injuries. Currently, she is fourteen years old. 71Before Monika fell ill, she and Abanoub attended Sacred Heart Primary School at Villawood. There is extensive evidence in the form of work samples and other material from the school that suggests Monika was a very bright child (exhibit A). 72From Friday, 22 October 2005 to Monday, 25 October 2005, Monika and her family consumed a number of meals that are suspect in determining the source of the Salmonella poisoning and events occurring around this time are relevant to a determination in the matter. At the time Monika and her family were being treated for Salmonella poisoning, health and medical professionals created a 'food history' of the family that is somewhat inconsistent with their recollection of the meals they had eaten. 73Further, KFC submitted that the witnesses for the plaintiff frequently contradicted themselves in relation to this 'food history' and their movements both at the time of Monika's illness and at trial. I find Monika's parents and grandmother to be honest in their attempts at giving evidence and I think these alleged inconsistencies can be explained when one looks at the events that were occurring around the time of Monika's illness. 74Furthermore, the Court is alive to the fact that it should look closely at the words used by the parties when giving evidence, and bear in mind the subtleties of language and comprehension to ensure evidence is not lost in translation. 75In the following paragraphs, by way of summary, I have made a number of factual findings in relation to the meals that the family consumed. I have set out these (and other) findings in a table that is annexed to the end of this judgment. The findings, which are generally stated as 'yes' or 'no', relate to whether or not a particular family member ate a certain meal at a certain time. The evidence that was considered by the Court in relation to those findings is set out in the table. 76On the evening of Friday, 21 October 2005, Mr Samaan had purchased a barbeque chicken at Fairfield at about 7.30pm for the family's evening meal. However, Mr Samaan's wife, who is Monika's mother, Mrs Hanna Shanoda, had already cooked ful (a broad bean dish), falafel and cheese. They ate Mrs Shanoda's meal and Lebanese bread instead of the chicken. About half an hour later, Mrs Shanoda was admitted to hospital and shortly after she gave birth to their third child, Barbara. That evening, Mr Samaan's mother, Mrs Dous, moved in with the Samaan family to help care for them. It is likely that Mrs Dous put the barbeque chicken in the fridge and it was probably thrown away the following day. In any event, the chicken was not a common meal to the members of the family who suffered the Salmonella poisoning. 77On Saturday morning, 22 October 2005, Mr Samaan prepared a chicken schnitzel ('biftek'), for the family's breakfast and everyone at home (Mr Samaan, Mrs Dous, Monika and Abanoub) ate it. Mr Samaan purchased the chicken used to prepare the biftek either that day or on the preceding day from Red Lea Chicken (there is nothing in these proceedings that implicates Red Lea). The biftek was coated in eggs, breadcrumbs, herbs and fetta cheese (made from pasteurised cow's milk imported from Macedonia). Later that morning, Mrs Dous, Mr Samaan, Abanoub and Monika visited Mrs Shanoda in hospital and brought the biftek to her in a plastic container. However it seems that Mrs Shanoda threw the biftek out when she was alone because she was not hungry, having eaten hospital food. None of the family saw Mrs Shanoda eat the biftek at the hospital. 78On Sunday, 23 October 2005, it is more likely than not that Mr Samaan prepared a chicken breast burger, presumably using the same chicken purchased from Red Lea, which he, Mrs Dous, Monika and Abanoub ate. It is not clear whether the chicken burger was made using the pre-cooked biftek that Mr Samaan had prepared the day before, or if it was freshly cooked. Given Mr Samaan's and Mrs Dous' evidence that they did not cook on Sunday, I infer the left-over pre-cooked biftek from Saturday morning was used on the burger. 79At some stage that day, Mrs Dous visited her other son, Mr Samaan's brother, Aziz, and she ate a second breakfast of eggs, cheese and mortadella. Around lunchtime, Mr Samaan, Mrs Dous, Abanoub and Monika attended a party at Aziz's house. Seafood, salad and cheese were consumed at the party and none of the other 50 to 65 party guests reported any illness. 80After the party, Mr Samaan, Mrs Dous, Abanoub and Monika visited Mrs Shanoda in hospital and brought her a barbeque chicken that had been purchased at Bankstown either that day or the day before. Mrs Shanoda threw out the barbeque chicken as she had had enough food from the hospital. She did not do this in front of Mr Samaan (transcript 26 July 2010, at 272). The family did not cook at home that evening and none of them consumed the barbeque chicken. 81On Monday, 24 October 2005, Mr Samaan attended work as a forklift driver at the Flemington Markets. He left home at approximately 2.30 or 3 am and had some tea and cake before he left. For breakfast, Mr Samaan, Mrs Dous, Monika and Abanoub ate the home cooked chicken burger that Mr Samaan had prepared the day before. 82Later that day, at 11.42am, Mrs Shanoda was discharged from hospital. Mr Samaan and his mother attended the hospital to collect Mrs Shanoda and on the way home, they stopped at KFC Villawood and purchased some chicken burgers, hot chips and orange juice. Mrs Shanoda and Mrs Dous ate the chicken burger. Mr Samaan ate nothing. Whilst at school, the children, Abanoub and Monika, ate cold meat sandwiches for lunch. 83Mr Samaan retrieved Abanoub and Monika from school at about 3.15pm. On the way home, Mr Samaan again stopped at KFC Villawood and purchased a chicken 'Zinger' burger for Abanoub and a chicken Twister for Monika. He also purchased hot chips and orange juice for both children. 84Mr Samaan gave evidence that prior to Monika's illness the family would visit KFC approximately once a week as a treat (transcript 5 August 2009, at 126). 85On the afternoon of Monday, 24 October 2005, Mr Samaan recalled that when ordering the Twister he stood at one of three or four cash registers and he paid about $11 or $12 in cash for the food. He observed the Twister being wrapped by a young boy who came out from the kitchen behind the main service area "rolling the wrap" (transcript 20 July 2010, at 188-189). 86It is not entirely clear whether Mr Samaan's use of the word "wrap" refers to the process of rolling the bread around the filling, or whether he is referring to the process of rolling some kind of paper (or similar) wrapper around the whole meal to serve the Twister to the customer. The boy was described as being young, skinny and of white European appearance. In cross examination, Mr Samaan stated that he did not see the boy take out pieces of chicken from a holding area, but observed the boy, after wrapping the Twister, place it in something like a drawer for service in the front. 87A Twister appears to be a fairly substantial meal and it would seem that Monika, who was 26 kilos at the time, could not finish it. After they returned home, at around 4pm, Monika ate approximately the first third of the Twister. She then offered the Twister to the rest of her family. Mrs Shanoda and Abanoub had a piece. Mr Samaan described how Monika offered the Twister by stretching out her hand towards him and how he "cut" a bite size piece and ate bread, lettuce and tomato (transcript 20 July 2010, at 182-189). The family used the word "cut" when they described taking a piece of the Twister. I infer that the word "cut" means to tear off part of the Twister. After the family each ate some of the Twister, Mr Samaan thought there was about one quarter of it left over. 88It seems the Twister did not appeal to Mrs Dous for a number of reasons: she had already taken her dentures out and washed them; she was not hungry; and she found the bread was too tough for her dentures. As a consequence she did not eat it and I accept that later in the evening she prepared a meal of bread, cheese, basturma, eggs and ham for herself. 89Mr Samaan and Mrs Shanoda ate the remainder of the Twister at dinner. Mrs Shanoda also ate some sliced bread with ham and cheese. Later that night, Monika was the first of the family to get sick, by vomiting in bed. Shortly after, Mrs Shanoda and Abanoub were sick. Mr Samaan was feeling ill whilst he was at work in the early hours of the morning. 90The next morning, on Tuesday 25 October 2005, at about 5am Mrs Shanoda rang Mr Samaan at work in the morning to tell him that she, Monika and Abanoub were sick with vomiting and diarrhoea. Mr Samaan's younger brother, Younan, took the whole family, except for Mr Samaan to the GP who gave them some electrolytes. 91The family continued to be unwell. Monika, who had been very quiet, collapsed on Wednesday, 26 October 2005 and was taken by ambulance to the Children's Hospital at Westmead, accompanied by her grandmother, Mrs Dous. Abanoub was also taken and admitted to intensive care at the Children's Hospital. On Thursday, 27 October 2005, Mrs Shanoda was initially admitted to Fairfield Hospital but later was transferred to Westmead Hospital. Mr Samaan was also admitted to Westmead Hospital on Thursday, 27 October 2005. Around this time Monika was in a coma and last rites were administered. 92As has already been stated, the foregoing description of the family's activities during the days leading up to Monika's injuries include a number of factual findings that were at issue in the proceedings. The crux of the plaintiff's case that the Twister was the only meal common to the family members who fell ill, lies on the Court accepting Mrs Shanoda's evidence that she did not eat the food which the family had prepared and brought to her in hospital. The reasons behind the Court's acceptance of Mrs Shanoda's evidence in this regard are discussed below. These findings, as presently stated, support the plaintiff's case, because it would seem the Twister was the only common meal to the affected family members (and no others) and it was consumed within the incubation period for Salmonella poisoning. The evidential basis for these findings will be discussed below.

The reliability of the family's food histories collected by health and medical professionals 93The infectious diseases section of Westmead Hospital became involved when the cluster of illnesses presented to the hospitals. On 27 October 2005, at about 11pm, Dr Kevin Lai, the staff specialist in the Westmead emergency department, notified the Sydney West Centre for Population Health, which administers the notifiable disease programme, that there were patients in the Children's Hospital and in Fairfield Hospital who represented a cluster of diarrhoea or illness in a family. This notification was made before Mr Samaan was admitted to hospital. 94On 28 October 2005, Ms Jennifer Paterson, an infectious diseases surveillance officer with Sydney West Centre for Population Health telephoned Mr Samaan to arrange an interview. She noticed that Mr Samaan's recall of the family's food history was poor (transcript 2 August 2010, at 587) and in cross examination Ms Paterson recalled that at the interview Mr Samaan was agitated and upset. 95Mr Samaan recounted his first interview with Ms Paterson in the following way (transcript 19 July 2010, at 142): "Q. And you knew, did you not, that Ms Paterson when she saw you on 28 October wanted to identify the source of the infection? A. INTERPRETER: Sure, yes, and I was trying to help her to know the truth. Q. She was anxious to identify the food which caused your family's illness, was she not? A. INTERPRETER: Yes, so she can help other people before it spreads too. Q. And you knew that Mr Crone was anxious to identify the source of the infection, did you not? A. INTERPRETER: Yes. Q. And you gave them details of what you say you had eaten in the days before you became ill? A. INTERPRETER: Yes. Q. Did you try to help Ms Paterson and Mr Crone in their enquiries? A. I'm pretty sure I tried a lot but I was in a position where all my kids were sick somewhere. My brain was in shock. Q. On the first visit, that is the visit of Ms Paterson on 28 October when she questioned you, was there an interpreter present? A. INTERPRETER: No, there wasn't because she came another time. Because she came another time, that's why. I think that's why she came another time. Q. You understood the questions Ms Paterson put to you on the first visit, did you? A. INTERPRETER: I nearly understood it, there was a non-official interpreter. Q. There was an interpreter there, wasn't there? A. INTERPRETER: Just one, just one but he wasn't very strong in interpreting, he was our cousin. Q. He was who -- A. INTERPRETER: Our cousin. ... Q. Just to be clear about this, the first occasion you say an interpreter was a family member, right? A. INTERPRETER: Yes. He wasn't an interpreter, a real interpreter, he was 50/50 and he interpreted as he would but she came a second time." 96On 29 October 2005, Mr Samaan discharged himself from hospital, against medical advice, to be near his wife and Monika. He described his state of mind at the time (second further evidentiary statement of Amanwail Samaan, dated 22 June 2009): "2.I recall that Jennifer Paterson came to interview me the day after I was admitted to hospital. As far as I can recall when I was interviewed by a woman who I am told is Jennifer Paterson on the first occasion she was not accompanied by an interpreter. During that interview I was still very sick with Salmonella poisoning, I was dehydrated and had diarrhoea and vomiting. I recall having to stop the interview more than once to go to the toilet. 3.The second time Jennifer Paterson came to see me she was accompanied by a man who I am told is Stephen Crone. This was several days after the first interview and by that time I had ripped the intravenous drip out of my arm and discharged myself from hospital. I was distraught that my family and in particular Monika was dying and I felt useless lying in a hospital bed. I wanted to be with them and to help them in any way I could. 4.I do not recall the questions that Jennifer Paterson and Steven Crone asked me and I do not recall anything about the interpreter they used other than that she was a woman. I was ill and extremely upset and worried by Monika's illness. 5.At that time I was still sick and feeling unwell and my thoughts were with my family and in particular Monika. I was not focused on the cause of the food poisoning and I was certainly not focused on the interview. 6.My native language is Sudanese Arabic. This is a totally different dialect to Arabic spoken in other parts of the Middle East such as Lebanon or Syria and the Gulf States eg Saudi Arabia, Kuwait etc. I have some difficulty understanding speakers of Arabic from countries other than Sudan and Egypt." 97On 1 November 2005, Ms Paterson emailed (exhibit TB1(1) at 525) Marianne Tegal at the Food Authority about the family's health problems and stated: "Dear Marianne, SSW [South Sydney West] were notified of a family with gastro that has been reported to you...Three of the four people ill have S.typhimurium grown on stool culture, the fourth is to have a sample collected. On Friday, 28/10/5, via interpreter, I spoke with the father about their clinical symptoms, onsets (25/10) & exposures. Recall was not great but three sources of chicken were stated - *Raw chicken breast (fried at home) from Baida, Fairfield *BBQ chicken from a BBQ chicken shop in the same street within a block of the Police Station *KFC chicken burger from Woodville Rd, Villawood. There was a teleconference this morning with Patrick Maywood, Stephen Crone, Melissa Irwin, Barbara Telfer, Oanh Nguyen and myself. We discussed chicken sources and would appreciate if the food authority could investigate these three premises. We understand that there have been quite a few recent complaints about KFC and Baida had an issue last year. Regards Jenny" 98Patrick Maywood is an infectious disease surveillance officer for Sydney South West; Melissa Irwin and Barbara Telfer are members of the enteric diseases team at North Sydney; and Oanh Nguyen a colleague at the Parramatta office. 99Almost two hours later, Ms Paterson followed up a request from Marianne Tegal for more and better information about the premises where the chicken was purchased as she did not believe there were any retail outlets called Baida. Ms Paterson's email response was as follows: "Dear Marianne, Of course Stephen and I will try to get more information tomorrow. Unfortunately the father did not recall the street address nor the name of the BBQ chicken shop, only how he got there. The father said Baida Fairfield was a well known market, and he said the BBQ chicken shop was within one block back from the police station in the same street, walking away from the train station. My guess from the map is Smart Street, looking in white pages - Chicken Express, Neeta City, Smart Street, Fairfield meet the criteria ... Yes, the father reported that he, his wife, his two children and the paternal grandmother all had chicken burgers, chips and orange juice at KFC Fairfield. Regards Jenny" 100On 2 November 2005, Ms Paterson and Mr Crone interviewed Mrs Shanoda. They brought an interpreter with them. Mrs Shanoda was not sharing a hospital room with any other patient. Mr Samaan, Mrs Dous, two brothers and a sister of Mr Samaan were present during the interview. In Ms Paterson's and Mr Crone's opinions Mr Samaan appeared agitated, angry, upset, distracted and concerned for his family. 101Ms Paterson recorded (transcript 2 August 2010, at 522 - 524) that Mrs Shanoda had for Sunday breakfast a "salad and chicken burger cooked at home, tomato, lettuce, cucumber". If this were correct, this would be a common meal between all members of the family and in fact this is the assumption Ms Paterson made after the interview. 102Ms Paterson was cross examined about the interview and her impressions from that time are recorded as follows: "Q. Then on the Sunday, you record her [Mrs Shanoda] as having had for breakfast a "salad and chicken burger cooked at home, tomato, lettuce, cucumber". Just stay there for a moment, elsewhere in your investigation of this matter, let me take you to page 543, at the top of the page you have written "hospital food, eaten by Hanna during her stay", do you see that? A. Yes. Q. Don't you agree that you are probably mistaken in recording that on Sunday 23 October for breakfast whilst in hospital, Mrs Samaan had a salad and chicken burger cooked at home, tomato, lettuce, and cucumber, don't you agree that is probably a mistake? A. No, because I am taking down what the family is telling me, and meals were what they were saying to me is that meals were being taken in to Hanna in hospital. Q. So between breakfast and lunch as you understood it from the family, Mrs Samaan had Lebanese bread from a Lebanese shop but with no sauce, is that right? A. Yes. Q. And then for lunch on that day, Mrs Samaan had "barbecue chicken from shop, wife only ate, brought into hospital by husband"? A. Yes. Q. That was from a shop called Habib Bankstown? A. Yes. Q. And then for dinner that night, Mrs Samaan had chicken schnitzel, cooked" who cooked that? A. I haven't read who cooked, just that it was cooked and "in morning to Hanna". Q. So she had on that day according to the food history that you got, breakfast cooked from home. Between breakfast and lunch, Lebanese bread from a Lebanese shop, barbecue chicken for lunch that was brought in for her and in the evening the schnitzel that had been cooked that morning. So each of her meals on the Sunday according to the food history you and Mr Crone got was brought in to her at the hospital? A. That's what we were told, yes. Q. That's what you understood? A. Yes. Q. What about the food history for the Saturday, page 542? A. There wasn't a record that was eaten on that day, so that's why it was blank. Q. This is you and Mr Crone interviewing the whole family, the husband, the wife and -- A. And the grandmother. Q. And were there other people in the room as well? A. The other people in the room did not contribute to the conversation. Q. Were they not able to tell you anything about the food on the Saturday-- A. That's correct. Q. Or were they tired, or did you not understand it, what was the position? Why is that blank? A. Well as I said there was no record of what was eaten that day. Q. You could not possibly have been satisfied that the recall as described on Sunday was accurate, could you? You could not possibly have been satisfied of that? A. I am not sure how to answer that question. HIS HONOUR Q. He is putting to you a proposition which you can comment on? A. Okay. So as far as my opinion about what is satisfactory, anyone trying to recall what they have eaten is difficult. Any of us in the room if we are trying to recall what we had four days ago may not recall. Satisfactory in terms of an investigation if that's what you are asking? Ideally it is great to have a good food history, to be able to tie together what is a probable source and to prevent other people from getting sick from a probable source, to try and prevent further spread of an illness. That is an ideal, yes, if that's what you are asking. BARTLEY Q. But in this particular case you have noted a number of times how difficult it is to get a food history, is that right? A. Yes, that's true. Q. You told his Honour already about the highly emotional state the family members were in? A. Yes. Q. The difficulty in concentration and being distracted, you have told his Honour about that? A. I have told the Court about my opinion of that and I have answered to the words that you have used, yes. ... Q. Ms Paterson, having taken you through this document, the case questionnaire that is headed Mother, you cannot say, can you, as you sit there which parts of the information came from Mr Samaan and which parts came from Mrs Samaan[Mrs Shanoda]? A. No, because it is not my purpose to separate those." 103On 3 November 2005, Ms Paterson emailed the results of the interview to the Enteric group, Ms Tegal, Mr Maywood and Mr Crone. The email stated: "Dear All, Stephen Crone & I spoke with the family via interpreter at Westmead Hospital yesterday afternoon. The paternal grandmother, mother and father were present (as well as two brothers and a sister of the father). ... There were no common meals stated on Friday 21/10 when she went into labour about 5pm and was admitted to Bankstown [sic] Hospital about 8pm. However there was mention of some feta cheese and cold meats consumed by Hanna [Mrs Shanoda] that may have been consumed at different times that day by the children and father. Around that time the paternal grandmother came to stay (and care for the 2 children). The mother ate hospital food except for BBQ chicken brought in by her husband and consumed only by her AND *** Sunday evening her husband took a "chicken schnitzel and salad burger" he had cooked at home that he and the children had also eaten that morning. (When I interviewed the father on Friday, he stated that there were chicken burgers consumed on Monday morning by the whole family from the meal prepared on Sunday as well). ... There are remnants of all these foods being kept at their home. ... NFA intend to obtain these foods for testing, Stephen Crone and I think KFC is off the hook (anyway, the daughter had a twister and the other family members had chicken burgers). ... Regards Jenny" 104Barbara Telfer replied to the email on 3 November 2011 and stated: "...Sounds like Baiada at Fairfield is still a bit of a mystery, ... Reckon its worth keeping KFC on the radar just in case..." 105Bearing in mind the language difficulties faced between the parties, and looking closely at the wording of Ms Paterson's notes, the notes suggest that the chicken burger cooked "in [the] morning [and given] to Hanna" was actually the biftek cooked on Saturday and brought to her that day. Mrs Shanoda, Mr Samaan and Mrs Dous all gave evidence in varying forms that two chicken meals were brought to Mrs Shanoda in hospital - a barbeque chicken and a home cooked chicken. The parties could not remember what was brought on which day, although Mrs Shanoda's evidence seems to be the clearest in this regard (transcript 26 July 2010 from 272 - examination in chief): "Q. What food did you eat when you were in the hospital? A. INTERPRETER: Sometimes they brought meat, sometimes they brought fish. Which day are you talking about, is it Monday? Q. When you were at the hospital did you eat hospital food? A. INTERPRETER: On Monday, yes. Q. On each day? A. INTERPRETER: Yes, everyday in hospital I ate hospital food. Q. Did your husband bring you any food? A. INTERPRETER: Yes. Q. What food did he bring you in the hospital? A. INTERPRETER: He brought Biftek, like schnitzel. Q. And did you eat that? A. INTERPRETER: No. Q. Why not? A. INTERPRETER: I had already eaten hospital food. Q. What did you do with the schnitzel? A. INTERPRETER: I threw it in the rubbish. Q. In front of him? A. INTERPRETER: No, not in front of him. Q. Did he bring you any other food in hospital? A. INTERPRETER: Yes. Q. What other food did he bring you? A. INTERPRETER: He brought barbecue chicken. Q. Did you eat that? A. INTERPRETER: No. Q. What did you do with that? A. INTERPRETER: I threw it out still. Q. Why? A. INTERPRETER: I had enough food from the hospital. They usually bring in enough food. Q. Did you throw it out in front of your husband? A. INTERPRETER: No. Q. Was the schnitzel on one day and the chicken on another day, the barbecue chicken? A. INTERPRETER: Yes. Q. Which was first? A. INTERPRETER: Schnitzel was first and then the barbecue chicken. Q. Was the barbecue chicken on the next day after the schnitzel? A. INTERPRETER: Yes, it was the day after. Q. Why was your husband bringing you food? A. INTERPRETER: This is our tradition from Sudan. When a woman gives birth he brings her food to feed her. It is a happy thing to do." 106In cross examination from page 297 onwards Mrs Shanoda stated: "Q. Did they ask you about food that your husband took to the hospital? A. INTERPRETER: No, they didn't ask me. Q. Did you say to these two people, "My husband, Mr Samaan, brought in a barbecue chicken purchased from a shop in Bankstown to me in Bankstown Hospital for lunch on Sunday 23 October and only I consumed that chicken meal." A. INTERPRETER: I said that at the hospital? Q. Yes. A. INTERPRETER: Which hospital? Q. To the two government people on 2 November 2005 at Westmead Hospital? A. INTERPRETER: No, I didn't say these words. I said my husband bought food but I didn't say these words and I didn't eat it, I threw it out. Q. I suggest to you you told these people that your husband bought food and you ate it? A. INTERPRETER: I can't remember such words. All I remember is what we said. My husband told them, my husband is the one who spoke, not me. I didn't speak. He said he bought barbecue chicken and he bought it to me and he also brought to the hospital some schnitzel. He said all this, not me. I didn't say anything like that. Q. You said he brought in some chicken schnitzel which you ate, didn't you? A. INTERPRETER: Barbecue or schnitzel? Q. Schnitzel. A. INTERPRETER: Yes, he did bring it but I didn't eat it. I didn't speak at all in hospital. He sat and he spoke with them. Q. I suggest that you told them that you ate chicken schnitzel which your husband took to the hospital on the evening of Sunday 23 October. What do you say about that? A. INTERPRETER: Who did I say it to, to John the interpreter? ... Q. And did Mr Samaan say [to Mr Crone] this or words to this effect that he bought KFC meals in Villawood which were eaten between 1 and 3 o'clock on Monday? A. INTERPRETER: Where and who did he say this to? Q. To Mr Crone the Government man? A. INTERPRETER: I don't know. I was sick and tired. I didn't hear all this but definitely they would have talked to him about what we ate and what we bought. ... A. INTERPRETER: I can't remember this. I was sick and in pain and had just given birth. But I remember he told him I had cooked biftek schnitzel and "I took some to my wife in hospital as well" but he didn't think I threw it out. We didn't say anything about this. ... Q. Did you tell her [Dr Nhan] that you received the usual hospital food, that would be in Bankstown Hospital up to Monday afternoon? A. INTERPRETER: I can't remember these words. Q. Did you tell her that your husband prepared a biftek dish on Sunday? A. INTERPRETER: I can't remember these things. I can't remember these words. Q. Well I suggest you said to this doctor that your husband prepared a chicken or biftek dish on Sunday and cooked it on Monday when you were at home? A. INTERPRETER: It's true he did cook a biftek chicken schnitzel dish but I can't remember telling anyone this information. Q. And he prepared it on Sunday? A. INTERPRETER: That schnitzel he brought to me on Saturday. Q. Did you tell this doctor that he prepared a biftek dish on Sunday and cooked it on Monday when you were at home? A. INTERPRETER: No. Q. Did you tell her that your mother-in-law also had dinner with the family but is well? A. INTERPRETER: No." 107Mrs Dous and Mr Samaan both gave evidence that they did not observe Mrs Shanoda eating any of the chicken they had brought to her in hospital. Mr Crone confirmed in cross examination (transcript 3 August 2010, at 614 - 615) that Mr Samaan had never said to him that he (Mr Samaan) had observed Mrs Shanoda eat the meals he took to her. 108The inconsistencies in the evidence can be explained by the language difficulties and it is understandable that Mrs Shandona, while on the face of it, was compliant in assisting Ms Paterson, was not really concerned or fully comprehending the importance of being accurate in her recollections. 109The evidence of Ms Paterson was, when properly understood, not inconsistent with Mrs Shanoda's oral testimony. Essentially the task being performed by Ms Paterson (and Mr Crone) was the identification of the possible sources of Salmonella poisoning. Their purpose was not to differentiate between which person provided information (transcript 2 August 2010, at 526.35 -39), but, rather, to ascertain possible sources of the bacteria. The history taken reflects that purpose, as does the inability to obtain any food history for the Saturday reflect the insignificance of the Saturday/Sunday differentiation. 110The notes taken by the responsible officer do not identify the source of the information given, but aggregates the information from all sources. The circumstances then pertaining, including the general panic and worry, the language difficulties and the relationship between the persons, drawn from their culture, strongly suggest, as was the evidence of Mr Samaan and Mrs Shanoda, that it was Mr Samaan who gave Ms Paterson the information she recorded in the notes, and not Mrs Shanoda. 111Further, Mrs Shanoda's non-disclosure of what she ate in hospital could be considered in light of Mrs Shanoda's evidence that it is a Sundanese tradition for a man to bring a woman food after she has had their child. It tends to be human nature to act graciously when receiving gifts and it is therefore conceivable that Mrs Shanoda might not have wanted to admit to throwing away or not eating food that had been brought to her in front of the very people who brought it. However, this proposition was not put to Mrs Shanoda in Court and the Court should therefore not place too much weight on the possibility. 112Having said that, Ms Paterson's notes record a large quantity of food that Mrs Shanoda supposedly consumed at the hospital on Sunday, in addition to the hospital food: breakfast cooked from home, brunch of Lebanese bread from a Lebanese shop, barbecue chicken for lunch and in the evening, the schnitzel. While is likely that these meals were delivered over the course of her stay in hospital it should be remembered that hospitals are busy places. Mrs Shanoda was understandably tired and feeling unwell, thus she would naturally be trying to rest; she was caring for a new baby; she was most likely receiving regular visits from hospital staff such as doctors, nurses, cleaners, community services and possibly other visitors; and she would have been presented with regular meals that are designed to be eaten easily. 113The chicken and other food provided by the family would have been more cumbersome for a hospital patient to consume. For example, it is unlikely that Mrs Shanoda would have had cutlery outside of that provided with the hospital meals and during the periods when she did have cutlery, there would have been little space on a hospital bed tray to either break up or tear apart the meals with her hands or set them out in front of her while she was eating. It is not inconceivable that Mrs Shanoda only ate hospital food. It would have been hot or warm and easier to eat. It would seem the most logical, appealing and convenient food and for these reasons I prefer Mrs Shanoda's evidence given in Court that she did not eat the food her family brought to her while she was in hospital. 114On 3 November 2005, Brett Campbell, a senior food safety officer with NSW Food Authority, visited Mr Samaan at home to obtain leftover food samples from him for Salmonella analysis. Mr Campbell spoke with Mr Samaan, took photographs and added his notes from the visit to a 'Food Incident Profile', which is an official record of a food borne illness complaint lodged with NSW Food Authority. Mr Campbell stayed at the home for about one hour and noted that the home was a small two bedroom housing commission unit, with a 'fairly small' kitchen, and a combined sitting and dining room. 115Mr Campbell asked Mr Samaan, "Do you have the leftover foods available from the home cooked chicken meal served to your family?" (transcript 2 August 2010, at 539). Mr Samaan answered that he did, and took Mr Campbell to the kitchen, where he then took from the freezer, a clear plastic bag containing what appeared to be frozen chicken. Mr Samaan said that this was the raw uncooked chicken that was leftover from the meal of Sunday, 23 October 2005 and Monday, 24 October 2005. The chicken was analysed and it was free from Salmonella. Mr Samaan spoke to Mr Campbell in English but there was no interpreter present, and stated that he may have answered 'yes' to a question he did not fully understand. 116Dr Givney commented on the inconsistencies in food histories in the following way (Advice of 8 April 2008 page 4): "SUMMARY OF EPIDEMIOLOGY I think it is apparent at this point that various investigators believe they were given information that seems inconsistent with Mr Samaan's Evidentiary Statement. On the other hand, their epidemiological investigation processes were less than ideal. There were difficulties with language but, nevertheless, there is no explicit mention in the Foodborne Illness Environmental Investigation Report (NSW Food Authority) ... that an interpreter was used to obtain the "Attachment A- Additional Epidemiological Details arising form the Authority's Interview with Case". The author of this Food Authority report also seems to accept uncorroborated advice from a 10 year old child about food the child had eaten 3 weeks previous. There is an assumption throughout and stated explicitly in the Foodborne Illness Environmental Investigation Report (NSW Food Authority) ... that the absolute limit for the incubation of Salmonellosis is 72 hours and so no information should be sort earlier than 72 hours before onset. For reasons given in my previous advice, I think this unwise although very standard practice. More generally the investigating Public Health Units seem to have decided somewhat prematurely and maintained on insufficient grounds that the home cooking was the cause of the infection. That, at least, is the impression given by the Foodborne Illness Environmental Investigation Report (NSW Food Authority) ... which states the public health units "conveyed to the Authority that the source was potentially from the family home cooked meal consisting of chicken, feta cheese or possibly sliced ham" and "dismissed" the KFC meal as "having any significance". This view was apparently also conveyed to the Children's Hospital at Westmead whose Monthly Infectious Diseases Report No.170 ... states "A public health investigation concluded that undercooked chicken ingested 48 hours prior to the onset of illness was the most likely food source" which, of course, cannot refer to the KFC meal consumed the evening before the illness onsets. Interestingly this is the only mention in any of the documents of "undercooking". The investigators noted only one other case of Salmonella Typhimurium 135a occurred outside the family at the same time outside the Samaan family and believed it was not related. Interestingly there is contrary evidence in an OzFoodNet Report published in December 2005 and quoted in Foodborne Illness Environmental Investigation Report (NSW Food Authority)... Additional Epidemiological Details arising form the Authorities Interview with Case." Between August and December NSW had 54 cases of Salmonella Typhimurium 135a notified, an increase on previous years, but there is no indication that the people who investigated the Samaan cases were aware of this increase or attempted to make a connection. It is not clear if this is why NSW Health advised the NSW Food Authority to investigate KFC additionally i.e. whether NSW Health believed there was a potential for a source beyond a family's home cooking to explain increased numbers of cases across the state." 117The defendant has raised the contention that Dr Givney was instructed with a considerably less complex food history than has now been adduced in evidence. However, given the complexity in piecing together the history, this generally applies to each of the experts. I accept that Professor Fleet was perhaps provided with the most comprehensive overview. The complexity of the food histories given to the experts does not affect their opinions of the facts in issue upon which they were asked to comment. 118It is unfortunate, from the Court's perspective in being required to determine liability, that more emphasis was not placed on investigating KFC closer to the onset of illness as such an investigation would have been highly persuasive in inculpating or exonerating the Twister in this matter. 119Given the events occurring during the incubation period for the family's Salmonella poisoning, it is more likely than not that the unprepared chicken in the freezer was purchased at the same time as the chicken used in the schnitzel and was therefore part of the same batch of chicken the family ate over the weekend. This chicken was tested and it did not grow any of the bacteria that caused Monika's illness.

Other suspect meals 120There was a question as to whether Mrs Dous prepared her own biftek on Monday morning after Mr Samaan had made breakfast of chicken burgers or biftek for the children. Mrs Dous was fairly insistent that she had cooked this meal for herself as well as eating jam and bread that morning (transcripts 20 July 2010, at 214.40; 21 July 2010, at 240.26 to 242). Even if it were the case that Mr Samaan had prepared this meal and Mrs Dous did not eat it, there is nothing to suggest that it was given to Mrs Shanoda, or that she ate such a burger prepared by Mr Samaan before she left the hospital on Monday. 121The defendant raised an issue that Mr Samaan gave Mr Campbell cold meats (not chicken) from his fridge which were not the same as the meats the family had eaten over the weekend. Mr Samaan confirmed this was the case - the meats were freshly purchased. The family also consumed orange juice over the weekend, although there were no samples available to be tested. While the experts have suggested there is a possibility that the Salmonellosis came from these sources, I think the issue of these sources not having been tested is not detrimental to the plaintiff's case, especially if, as has been discussed, it is accepted that chicken was the probable source of the Salmonella bacteria. 122There is one other suspect chicken meal, however it is outside the 72-hour incubation window. For completeness the evidence in relation to this meal has been considered and on the evidence available, it is impossible to draw a conclusion as to whether the meal was common to all who fell ill. It is possible Mrs Shanoda did not eat that chicken and it is equally possible that she did eat it. But the meal is eliminated as a source as a result of the incubation period. 123Mr Samaan was cross examined (transcript 19 July 2010, at 140,149-150,160-161) as to whether the family had shared the same meal of two barbeque chickens cut into quarters, on Wednesday, 19 October 2005 and on Thursday, 20 October 2005: "BARKER Q. After you spoke to Mr Campbell, I suggest to you thought deeply about what the food might have been that caused the trouble? A. INTERPRETER: Yes, of course. HIS HONOUR: You mean for the first time? BARKER: No. Q. But you decided that your wife had not eaten any of the chicken bought on 19 October on the Wednesday? A. INTERPRETER: On the 19th we ate chicken, barbecued chicken, we bought it, we ate it, all of us. ... Q. Did you tell Mr Campbell that you had been mistaken in telling him that your wife ate a chicken burger or part of a chicken on 19 October? A. INTERPRETER: Chicken burger, what has the chicken burger got to do with the date of the 19th? It was barbecued. Q. Yes. Two barbecued chickens? A. INTERPRETER: Yes, two barbecue chickens. It wasn't chicken burger, it was chicken. Are you asking me about chicken burger? Q. I'm asking you about the two chickens you bought on 19 October, right? A. INTERPRETER: Yes. Q. And you said that they were shared by you and your wife and your children? A. INTERPRETER: Yes. Q. Did you tell Mr Campbell that you made a mistake and your wife did not share that chicken? A. INTERPRETER: It's a possibility she didn't eat the chicken on that day but I remember my kids ate and they sat with me and they ate. I cannot remember whether she ate or didn't eat and I cannot remember. Okay. Q. Do you remember that the next day, the day after Mr Campbell visited you, he telephoned you? A. INTERPRETER: Yes. Q. And did you say to him something like these words: "What I told you yesterday about the barbecued chicken that I bought on 19 October being eaten by me and my family on 19 and 20 October was wrong." A. INTERPRETER: Believe me, I cannot remember. Q. Did you further say to him "my wife actually ate a completely different barbeque chicken that I took to her in hospital"? A. INTERPRETER: What is the relationship between the 19 and the 23rd? Q. Could you ask him please to answer the question? Did you say those things to Mr Campbell? A. INTERPRETER: Are you asking, I don't understand, are you asking about the 19th or the day I took the chicken to the hospital? Q. I will start again. Mr Campbell visited you at your home. On the next day he rang you. When he visited you at your home you told him that you had bought chicken on Wednesday the 19 October? A. INTERPRETER: Yes. Q. Which was eaten by you and your family? A. INTERPRETER: I can't remember, yes, no, who is my family or my kids. Q. The day after Mr Campbell visited you did he telephone you? A. INTERPRETER: He rang me and he said I'm coming home. Q. And did you say to him on the telephone "what I told you yesterday about the barbeque chicken I bought on 19 October being consumed by me and my family on 19 and 20 October was wrong" or words to that effect? A. INTERPRETER: I can't remember, I can't remember I said these words, I can't remember. Q. Did you say to him my wife actually ate a completely different chicken that I took to her in hospital from a completely different take-away chicken shop? A. INTERPRETER: I truly took chicken from a different shop, from a different area. Q. And did Mr Campbell say "well actually I was not able to locate the barbeque chicken shop that you described"? A. INTERPRETER: Possibility. Q. Did he say words like this, "on the basis of there being no common take-away barbeque chicken consumed by all members of your family, there would not be much justification for investigating those take-away food shops", and did you say "yes, I agree"? A. INTERPRETER: I can't remember. Maybe but I can't remember. Q. You see Mr Samaan the two chickens bought on the 19 October were a common meal if your wife had joined in, do you agree with that? A. INTERPRETER: Possibly but she might have been tired that day. I can't remember exactly how she was that day. It was the last day, she would have only had one or two days before giving birth. I can't remember whether she sat with us, whether she ate, I can't remember. Q. Well when he said that there was no take-away, no common take-away barbeque chicken eaten by you all, when he said that, and when he said there would not be much justification for investigating those take-away food shops, you agreed? A. INTERPRETER: I didn't say there is no justification to investigate these shops, I wanted to help them investigate. I wanted them to go out there and I gave them the addresses of the shops and where I bought it from. It was in my daughter's best interests. Q. When you had the telephone conversation with Mr Campbell you didn't tell him, did you, that there was a common meal that was a shared twister? A. INTERPRETER: He didn't ask me. He asked "what did you eat?", and we told him "KFC". He didn't ask me whether it was sharing or not sharing or whether we ate together or not together. Q. And you didn't volunteer to him that you had shared a twister which you thought was the cause of the illness? A. INTERPRETER: If there was a question directed at me I would have answered, if I understood him I would have answered. Q. Well you didn't talk about a shared twister may I suggest because there never was a shared twister, what do you say to that? A. INTERPRETER: No, we did share a twister. After we sat down I replayed the whole tape. My memory started to look for the reason. Q. You didn't even mention KFC to Mr Campbell, did you? A. INTERPRETER: He didn't ask me a question. While we were in hospital I was asked by him, "what did you eat?", and I answered "KFC". On that same day he came to take a sample, that is all he said and that's all I understood from him." (transcript 19 July 2010, at 160-161) 124These events were both emotionally and physically exhausting by any reasonable person's standards: the family had English as a second language; they had a newborn baby, just days old; they were all, except for Mrs Dous, suffering from Salmonella poisoning; and they had a critically injured daughter in hospital. Even in Court the language difficulties were an issue. The family's recollection five years later at the hearing was at times hazy, however, I think this can be explained for the same reasons and by the passage of time. 125A process of elimination and a careful consideration of the circumstantial evidence supports a view that it is more probable than not that the Twister was the only meal that was common to each of the members of the Samaan family who fell ill. I accept the evidence given in Court of Mr Samaan and Mrs Shanoda, whose demeanour and evidence displayed an impressive, honest account of events as they remembered them. There were many occasions on which evidence was given that, if they were either dissembling or exaggerating, would not have been. Further their lack of recollection on some issues was not avoidance. If they were being untruthful, they would have recalled some of these issues.

Did the plaintiff's father purchase a Twister from KFC? 126The defendant relies upon its computer records to deny that it sold the Chicken Twister to the plaintiff's father at the Villawood store on 24 October 2005. During the course of proceedings it became clear that KFC, in the ordinary course, had destroyed some material that was available to it, including evidence that might affect the probability of the use and/or age of any chicken used for any Twister on the day in question. A Mr Pronk who is the founder and director of TPRO Consulting, which provides information technology consulting services to Yum! Restaurants Australia Pty Ltd ('Yum!'), created the transaction log. Yum! is the holding company of KFC. The missing computer data was saved on back up tapes that were routinely purged by KFC and the data could have been used in proving or disproving Mr Samaan's alleged purchase of the Twister on 24 October 2005. Further, CCTV footage of the sales in store was destroyed after these proceedings were instituted. I do not suggest any ill-intent. It was a regular purge of historic material, held in the United States, from all stores throughout the world. I have dealt with the circumstances surrounding the loss of these files in my decision dated 24 November 2009, Saaman bht Samaan v Kentucky Fried Chicken Pty Ltd [2009] NSWSC 1265. Given the circumstances, I draw no Jones v Dunkel inference in relation to this potential evidence. 127The evidence that was available of relevant transactions existed on a transaction log, which is a log of sales data transmitted each day to Yum!'s head office from every KFC store in Australia that uses a Compris point of sale computer system. Yum!'s head office held a polling computer which had a daily automatic communication, between about midnight and 2am, with a 'back of house' computer in every KFC store in Australia that used a Compris computer system. Each back of house computer was connected to the cash registers at the front serving counters in the stores and at each drive-through station. As soon as a customer placed an order, a staff member was supposed to enter the products ordered, whether the sale was by cash or eftpos, whether the products were to be eaten in the restaurant or taken away. The point of sale system also computed the price of the products, the amount of cash paid and any change, the date and time of the transaction, the sequential docket number for each transaction during the course of the day, the code number for the register, the code for the staff member operating the register and a code for the store. The destroyed data recorded the chicken (by type) received in each store, the chicken discarded and, thereby, the chicken used or discarded could be calculated. 128At the end of each day's trading, the data recorded was compiled by the back of house computer into a single text (CSV) file, which comprised the transaction log. Mr Pronk attempted to reconstruct the missing data from back up tapes containing transaction log files from the KFC Villawood store for the relevant period. Mr Pronk has provided evidence in his affidavit sworn 2 September 2009, as to how he reconstructed the transaction log into an excel spreadsheet containing data of every sale to a customer at the Villawood store on 24 October 2005. He then created a number of spreadsheets, each of which distilled the data from the spreadsheet before it. The end result was a "Twister spreadsheet" to summarise all the sales transactions that included a Twister product on that day. The Twister product is variously described as "TWISTER COMBO", "TWISTER", "TWSTCOMC", "TWSTCM", or "TWISTER PR". 129The evidence has some rational effect on the probability of whether the plaintiff purchased the Twister on the date and at the time it is suggested. The Evidence Act ss 48(e) and 69, permit evidence of business records for the very reason these records are likely to be accurate. In explaining the proposal on which s 69 is based, the ALRC said: "...although computers can be used for a variety of purposes, it is principally as record keeping devices that they must be considered in relation to the hearsay rule. Computer records are kept by electronic means and with less human involvement than is the case of written records. It is suggested that the safeguards of the document being part of a record of a business and of the statement being recorded in the course of or for the purposes of the business are sufficient threshold requirements to apply at the stage of admissibility of records kept by whatever means they are. The NSWLRC commented that the fact that the statements were to be used by the business provided a strong incentive for accuracy... it is true that errors, accidental and deliberate, occur and can occur at every stage of the process of record keeping by computers. The fact is, however, they are the exception rather than the rule, they tend to occur at the stage when the information is fed into the system, and there are techniques available which can be, and are, employed at each stage of the record keeping process to eliminate error.... In many cases there will be no bona fide issue as to the accuracy of the record. It is more efficient to leave the party against whom the evidence is led to raise any queries and make any challenges it may have." (Odgers, 9th edition p.285.) 130Business records (even before the computer age) were recognised as being prima facie accurate and admissible in evidence. As Hope JA said in Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 549: "No doubt mistakes may occur in the making of records, but I would think they occur no more, and probably less often, than in the recollection of persons trying to describe what happened at some time in the past." 131In Cross on Evidence (8th Australian edition) the author observed (at 1315): "In the case of any new and unfamiliar form of automatic recording, the court will require foundation testimony to prove the function, the ordinary working, and the accuracy of the device, unless it is so well known that its accuracy may be assumed as a matter of common experience." 132The defendant submits that it is not without significance that the affidavits of Mr Do Rego (the Infrastructure Manager of Yum! Restaurants) and Mr Pronk were tendered without objection. The records were accepted as business records thus falling within the exception to the hearsay rule provided by section 69 of the Evidence Act and therefore were prima facie accurate. It was not suggested there was any unfairness, which might permit the invocation of s 135, which provides a general discretion for the Court to exclude evidence that might be: (a) unfairly prejudicial to a party; or (b) misleading or confusing; or (c) cause or result in undue waste of time. Nor, the defendant contends, was it argued that the possibility of error might bear upon admissibility. 133As Hope JA pointed out, business records may always be subject to error. But once they are in evidence they have to be accorded weight. Here, the defendant suggests, the system was comprehensively explained in considerable detail in foundation testimony, and given that the evidence is in Court, it should be accepted as an accurate record. It is submitted that the Court should find that no Twister was sold to Mr Samaan as alleged. 134The Twister spreadsheet shows the somewhat improbable conclusion that there was not a single Twister sold after 3.11pm on 24 October 2005 (exhibit MHP 11 at page 5). This conclusion is improbable for the reasons discussed by Mr Michael Potter, a Forensic Accountant and Principal at Axion Forensics, who reviewed the documents. 135Mr Potter was of the opinion that it was not possible for a system recording high volume retail cash sales to record every sale that is made. He stated in his report of July 2010 (exhibit P) that systems can be developed to ensure sales are recorded as completely and accurately as possible but it is inevitable that the system cannot operate accurately in all cases because individuals do not follow mandated procedures, operational errors can occur and, in some cases, there might be inappropriate employee conduct. Mr Potter states: "2.5My investigations of available KFC Villawood sales and other records leads me to conclude the operating environment was such that: 2.5.1It is highly unlikely all sales of KFC Villawood food products are recorded; and 2.5.2It is possible that not all sales of Twister products from KFC Villawood on 24 October 2005 were recorded, however, I am unable to assess the likelihood of this being the case, or if it were the case, I am unable to assess which sales were not entered into the system. 2.6The reason why I have concluded the environment was such that not all sales at KFC Villawood are recorded is: 2.6.1The available banking records for the store disclose that they do not reconcile, a possible reason being that sales are not recorded. On 24 October 2005, the recorded proceeds of sales banked exceed the recorded sales. A possible reason for the discrepancy is that not all sales on that day were recorded. ... 2.6.2The available store disclose it had a high rate of error in the register sales records when compared to KFC benchmarks. It is possible the sales were not recorded in error, or a product sold such as Twisters were entered incorrectly as another item...; and 2.6.3The available store records disclose there have been incidences of fraud at the store so that proceeds of sale in all cases have not been recorded. In my experience, fraud in a cash based sales system is not uncommon. 2.7A further test which accountants would ordinarily apply to test whether all sales are recorded is to investigate whether the Twister raw chicken product can all be accounted for in inventory and other records. I point out that such analyses are not always reliable or conclusive for the reasons mentioned in this report. 2.8In this case, KFC have been requested to provide wastage and other records in discovery that would enable such an analysis. For example, a Management Projection and Control Report. No such records have been provided in discovery and accordingly I am unable to undertake such an analysis." 136In cross examination (transcript 10 August 2010, from 1017), Mr Potter explained that the instances of fraud include straight out theft and giving food away; instances where a member of staff may put through a number of transactions at the end of day to hide earlier defalcations; or an apparently common technique being to ring up a less expensive sale, so the staff member could give the required change to the customer and pocket the difference between the sale price for the cheaper item and the cash tendered by the customer. Further, if a sale were recorded, for example, at 3.05pm and it was then voided at 3.07pm, after having in effect delivered the sale, there would be a little more cash left in the till to be taken by the staff member. 137Mr Potter was cross examined on the question of sales which were voided during the relevant period and he provided the following opinions: "Q. ... You were interested in the subject of voids? A. Yes. Q. In fact there were about 4 voids between 3 pm and 4 pm? A. That's correct. Q. ... You noted: "There does not appear to be any specific Twister voids the subject of 24 October although voids of a different product could be ... at the register "and you have absolutely no evidence of that? A. Depends what you mean by evidence. What I looked at was the environment at the store and the information that was available on various staff being disciplined for certain practices at the store. So, there was an environment for that to happen but you are correct I cannot say on that day this did occur. Q. You can say it did not occur can't you when you only have 4 voids in the hour in question? A. No. I think you have got to look at voids in the context of the whole day because there are a lot of different ways a suspect can hide the money that they took from the till: I have seen a number of cases where a suspect who is committing the frauds - or it might not even be frauds - it could just be errors made during the day and they get to the end of the day and they want to hide the fact that there is missing funds in the till. They rang up sales incorrectly, they took money out or whatever: That is when you might see a number of frauds in accounting and I did notice one of the staff who was on duty late in the day had access to the managers code to effect voids in the system. ... Q. This is in May 2004? A. Yes. Q. I am talking about the day in question? A. No. That is what I meant to say when I was trying to say earlier. In a lot of our work we look for an environment of fraud and, when you get quite a few events like that of staff using managers codes and things like that there is an environment for fraud. The nature of fraud in a cash based system is that you can never really tell exactly what is going on every day unless you have a CCTV watching the staff twenty-four hours a day - you would not be able to pick it up. HIS HONOUR Q. Even that would not help you would it because if they rang up a cheaper product you would still see them, ringing up the product? A. That's correct. Q. Could I ask you this: I remember reading in some report or other that finding overs, that is more money in the till rather than less was a greater problem than the other way around? In terms of fraud? A. In terms of fraud it can be. It could be an indication that there is more fiddling going on because the staff wanted to make it look like there was no problem in the store. Q. More sophisticated? A. Yes. But, typically a lot of the work, I have done for example, reviewing franchise groups when we are sent in to do a surprise audit to find unreported revenue the first thing we look for is overages - more banked than what is recorded in the till as a sale. It is probably the best, in my experience, best indicator of something that is not recorded. Q. The problem with this data, this problem is on no day you looked at was there an exact reconciliation? A. That's correct. Q. It was either over or under? A. The day before was under, the day after was significantly over again and that is. Q. So, if someone is stealing money they are pretty stupid is that right? A. I don't know. Q. They are not as clever as they should be? A. Yes. I did note, that it appears, the unders and overs are in excess of the bench marks for KFC but I don't know if that was investigated. ... Q. Do you suggest that it added to environmental fraud, it is possible or even probable? A. That's right, fraud or error. Q. Because it goes from employee to a friend? A. Yes, not only once but a few times. Q. The next part of document 14 is something that happened on 6 July 2006? A. Yes. Q. These are very isolated incidences, aren't they? A. It would appear that was the case, but this is an incident where one event occurs before the relevant day, and another event occurs after the relevant day which would indicate there is a possibility that that conduct has kept going. It is also my experience that matters of fraud, if you see someone doing it once they have probably done it many other times. It is just you have been lucky to catch them out. That's the nature of fraud. Q. This is the merest speculation, isn't it? A. No, I don't believe it is. Q. Would you go to document 16: "Someone didn't follow cash handling procedures, didn't sign for float reconciliation". Now that was on 18 September 2006? A. Yes. Q. Two years after this event? A. Yes. It appears this store could have had a protracted problem of cash variances if cash handling procedures aren't being followed. This could be one of the reasons why there is a variance between the monies banked and the money recorded as sold through the till. Q. The only incident of it is the document at paragraph 16? A. That's correct. Q. It is drawing a rather long bow, isn't it? A. No, I believe when you add up all those events, there certainly was an environment for things to not be recorded at the store. Q. So far as the bank reconciliation matter is referred to, you have assigned four possible reasons at paragraph 6.10? A. Yes, that in fact are the reasons given in the KFC manual why there may be a difference. Q. And giving incorrect change for a person driving off without taking change would be the most likely explanation I suggest? A. Or it could be that you have got a 15, 16 year-old teenager selling the product. HIS HONOUR Q. Is that a different answer to the proposition that Mr Barker has put? I mean the fact that you have got a young person doing it, I am not being facetious, but the fact that you have a young inexperienced person dealing with it, may also point to the fact that they may give out incorrect change? A. Yes, I am sorry, I was probably being a bit flippant there. What I meant was it is a younger adult handling the cash and that adult may not be too good with maths and give out the wrong change. Q. Presumably the till, whatever they call it, the register, has a facility whereby the amount of money is recorded and the change necessary also identified, isn't it? A. That's correct, say, for example, it might indicate $6.75 should be given in change but someone might in coins and notes only hand over $6.20. Q. Or miss a $2? A. Yes." 138In at least one significant respect, the factual basis for the foregoing submission does not withstand scrutiny. The C.H.A.M.P.S. manual provides that a Twister product ought to be cooked to order, but allows for cooking without order at times of high volume. The time between 3pm and 4pm is ordinarily a high volume turnover period. 139In ASIC v Rich (2009) 75 ACSR 1 at [338] - [339], Austin J stated: "[338] The differences in degree of reliability of business records were graphically described by Lockhart, Wilcox and Gummow JJ in Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 356-7 ; 97 ALR 555 at 601 (Arnotts). Their Honours were dealing with a submission that, though various documents (the Weston documents) were admissible as business records, it was dangerous to give them any weight. They said: The reliance which may properly be placed upon a document tendered under the circumstances we have described [as business records] must depend largely upon the nature of the document. On one extreme is a document whose nature and origin is apparent on its face and which deals entirely with matters of fact, for example, a factory's production records. Unless there is some reason to doubt the authenticity or accuracy of the document, it may be reasonable to place considerable weight upon the document, even though there is no witness who worked at the factory at the relevant time. By its very nature it is likely to be reliable. To disregard it, simply because of the absence of a witness, would be to spurn one of the major benefits of Part IIIA [of the Evidence Act 1905 (Cth), dealing with business records]. On the other extreme may be a document whose origin is proved, in the sense that it is shown to come from a particular organisation, but whose status is obscure. Beaumont J [at first instance] had this situation in mind when, in argument, he commented that some particular documents "could be a draft, they could be an interim report that was rejected by the board". It may be dangerous to give weight to a document of this nature - for example, one containing plans for the future or comments about policy, as distinct from precise information - without knowing its status and author. The only Weston documents upon which Beaumont J placed reliance in his reasons were a letter written by the company secretary and the Weston Business Plan. There was no issue about the identity or status of the author of the first document, although there was some argument as to the inferences which should be drawn from its terms. As to the business plan, this is a lengthy document, obviously prepared at a senior level; but the identity of the author is not disclosed by either the evidence or the document itself. Although the document contains some factual information, about which one might have more confidence, the passages used by his Honour were comments containing subjective evaluations of the positions of market participants. Without knowledge of the identity of the author of the document, we would not place any significant weight upon these comments. [339] I respectfully accept these observations, and I regard them as potentially applicable to many of the documents upon which ASIC has rested its case. While I accept that the weight to be given to the various documents tendered by ASIC needs to be considered on a case-by-case basis in relation to the particular documents or types of document in question (ASR [237-41]), nevertheless the Full Federal Court's observations suggest that no significant weight should be given to: ·computer-generated records, if there is significant doubt about what inputs were made, what systems existed for the preparation of the documents and what data inputting process was adopted; ·documents involving judgments, if there is significant doubt about who made the judgment, what level of seniority that person had, whether the author of the document regarded it as complete or a work in progress, and whether it was based on assumptions or "scenarios" that were not articulated; ·analyses, if there is significant doubt about the source of the document, the methodology employed, whether the author regarded the source materials and methodology as sound or having some limitations, and if so, what those limitations were; and ·reports, if there is significant doubt about the level of seniority of the personnel involved and how much time they had to prepare the report." 140There are ranges of theoretical possibilities that arise out of the interpretation of the transaction log. As discussed, a customer could change their mind, food items could be served to another customer, people who might not be so experienced in handling cash might be more likely to make mistakes or there could be incidents of fraud. There exists significant enough doubt as to what inputs were made to generate the data in the transaction record and this means that the transaction data sheet, compiled by Mr Pronk is not totally reliable. Therefore one cannot assume total accuracy of the record, which ultimately depends for its accuracy on a human act, which is known to be subject to error, particularly at times of high impact. 141The contemporaneous evidence such as notes about Mr Samaan made by Ms Paterson and Dr Nhan, emails sent and questionnaires created by the health authorities (extracted above) and evidence given in cross examination make it more likely than not that Mr Samaan purchased the Twister on Monday, 24 October 2005 after he had collected his children from school. 142Of course there is no absolute or irreconcilable difference between the testimony of Mr Samaan and KFC records. The evidence is reconcilable if Mr Samaan's order were broken into two or more orders, one of which was the Twister and if Mr Samaan collected Monika from school at a time that allowed an order at 3.15pm. Further, if an earlier order for a Twister were made and entered but altered without voiding, that too could explain any difference. In other words, even if Mr Samaan's order were made at 3.30pm, an unfulfilled order at 3.15pm may have satisfied the later order without the need to void the earlier order and to re-enter a new one. 143Likewise, an order made by Mr Samaan at 3pm may not have been recorded until 3.15pm, even though, because of anticipated volume the Twister was cooked at 2.45pm. In fact, Mr Samaan says he ordered the meal after collecting Monika at 3.15pm. The records are consistent with cooking a Twister at 3pm in anticipation of a high volume period, and a non-fulfilled non-voided order for a Twister at 3.15pm that was used to satisfy the subsequent order at say 3.25pm.

Experts' opinions - Testing the chickens supplied to KFC

144KFC obtains its chickens from sources that perform random testings on chicken carcasses. Mr Anthony Pavic, is a Microbiologist who is employed by Baiada Foods Pty Ltd (hereinafter 'Baiada') as a Laboratory Manager at Birling Avian Laboratories (hereinafter 'Birling'). Baiada is a privately owned Australian poultry company which provides raw chickens and processed chicken products to Yum!. Birling is a laboratory and research centre owned and operated by Baiada and it is an autonomous and independent arm of Baiada. Birling performs analytical testing in the areas of microbiology, quality assurance, serology, virology and pathology and its purpose is to test Baiada's poultry products. Birling also conducts research for universities and state government research institutions. All tests it performs are in accordance with standards imposed by Food Standards Australia New Zealand, State Food Authority requirements and the requirements of Baiada's customers, for example Yum!. Birling's tests are accredited by the National Association of Testing Authorities ("NATA") for Biological and Veterinary testing (affidavit of Anthony Pavic dated 4 June 2009). 145Yum! did not specifically request testing for the presence of Salmonella, however, between 28 September 2005 and 25 October 2005, 83 samples of processed whole bird carcasses were collected from Baiada plants. Baiada have over four million chickens at their plants. Birling tested Baiada poultry products for the presence of Salmonella; Escherichia Coli (E-Coli); and total viable count ("TVC"). Birling tests for the genus Salmonella only, not specifically the Salmonella Typhimurium phage type 135a. 146Birling's testing for the presence of Salmonella follows the International Standard ISO 6579:2002 (which is identical to the Australian Standard AS 5013.10-2004). Birling's testing procedures involve weighing the chicken carcass and inserting it into a stomacher bag with 450mls of dilutent (BPW). This mixture is massaged for two minutes. After massaging, 100mls of the massaged dilutent is removed from the bag and incubated at 37°C for 24 hours. Post incubation 1ml and 0.1ml of the liquid is added into selective broths (which enhance the growth of the target organisms) and incubated at 37°C and 42°C for 24 hrs. These broths are streaked onto test agar plates (which select and differentiate the target organism from other organism) and incubated at 37°C for 24 hours. Any confirmed positive results are sent away for serotyping. 147Of the 83 poultry carcasses tested, 41 samples (49 percent) tested positive for the bacterium genus Salmonella and 42 carcasses (51 percent) tested negative for Salmonella. Of the 41 carcasses that tested positive for the bacterium genus Salmonella, 38 carcasses (93 percent) tested positive for the (relatively harmless) serovar Sofia. The remaining 3 carcasses tested positive for the sub species enterica known to be zoonotic. 148None of the 83 poultry carcasses tested in this period tested positive for Salmonella Typhimurium. Therefore (as Salmonella Typhimurium 135a is a specific sub-type or phage type of Salmonella Typhimurium), there was no Salmonella Typhimurium 135a present in any of the carcasses tested by Birling in this period. 149Therefore, in Mr Pavic's opinion, on the basis of the tests for the presence of Salmonella that Birling undertook and their results, the level of risk of poultry contaminated with Salmonella Typhimurium 135a being supplied to Yum! / KFC by Baiada in October is low, the laboratory, being able to detect up to five cells within a carcass (transcript 9 August 2010, at 897) 150Dr Givney (report June 2009 and transcript 9 August 2010, at 927 - 928) expressed confidence in the testing however considered that since only a relatively small portion of the chicken is tested then it is still quite possible for a large number to be contaminated. 151Generally, there are significant numbers of farmed chicken containing the Salmonella virus, in one or other forms. The estimates vary but are in the range of 35 percent to 50 percent of all farmed chicken containing the virus. There remains at least a 35 percent chance that these chickens will have Salmonella in them. It is only the processing of the chicken that can safeguard against the virus.

How long would it take for a Twister to grow enough bacteria to cause Salmonellosis in four people? 152If proper procedures were not being followed, the C.H.A.M.P.S. Excellence Reviews tend to indicate that the most likely ways Salmonella bacteria would contaminate food would be if the henny penny or warming trays were not at the correct temperature, if old chicken was used, if the Twister sauce was past its use by date, or if cross contamination occurred through the wrapping and folding of the Twister while it was being prepared. I reiterate that the C.H.A.M.P.S. manual instructs that the Twister should be made to order because it tends to cool down quickly and become moist - an ideal environment for bacteria to spread. 153The defendant has raised the issue that it would be highly unlikely that a colony of Salmonella cells could grow large enough to cause infection in four people in the time frame between Mr Samaan purchasing the Twister and it being ingested. The defendant submits that there is no evidence that on the day in question, nor on any other day, storage conditions in the henny penny were not as prescribed by the KFC manual and in relation to the need for uniform growth throughout the chicken in the Twister to infect four people simultaneously, the defendant refers to Professor Fleet's comment in his report of 21 April 2009: "Four members of the Samaan family claim to have eaten portions of the alleged Twister and became ill with salmonellosis. This outcome implies some uniformity in the distribution of Salmonella typhimurium phage type 135a cells throughout the Twister product. Each person would need to have ingested an infective dose of these Salmonella cells. Given the heterogenous composition of the Twister (chicken, lettuce, tomato sauce), and the probable short period between the time of purchase of the Twister and its consumption, it is most unlikely that salmonella contamination, if present, would have grown to be uniformly distributed throughout the entirety of the product so that each of the four consumers would acquire an infectious dose." 154In his report dated 5 July 2010, Professor Fleet considered the possibility of cross contamination: "B.What is the likelihood of cross contamination of STM135a from fresh chicken product to cooked chicken product and, in this event, how many cells would be transferred to cooked product? 3.This possibility depends on two factors: (i) the load of contamination of the fresh or raw chicken, and (ii) the hygiene policies of KFC and their proper implementation by staff. With proper implementation of policy and procedures, there would be no cross contamination. My opinion, below, regarding cross contamination assumes a breakdown in implementation of established policy (which I understand is denied by KFC). 4.If a piece of chicken meat contaminated with Salmonella cells comes in contact with an uncontaminated piece of chicken meat through direct contact or indirectly through an employee's hand (gloved or not gloved) or a tong, fork or other utensil, it should not be concluded that the totality of the salmonella cells on the contaminated meat will be transferred to the uncontaminated chicken. Bacterial cells, such as Salmonella, generally form physical bonds or attachments to the food matrix. Also, the surfaces of foods are not smooth, and microbial cells are often located within pores, cracks or micro-fissures and do not necessarily "sit" on the surface. Therefore, they do not easily release or detach from the food surface. For example, shaking of a piece of chicken in a plastic bag with water will only release about 50% of the surface associated bacterial population into the suspension of water with the remainder of the population staying attached to the chicken product. 5.Any transfer of Salmonella contaminants from the surface of a contaminated piece of chicken meat to an uncontaminated piece of chicken meat will also be determined by the surface area of contact with the contaminated product. Such contact (eg surface of bench, fingers of an employee or tongs used by an employee) will never involve 100% of the surface and, most likely, would represent less than 50% of the surface (particularly in the examples of fingers and tongs). 6.Having regard to the information in paragraphs 4 and 5, and an assumption that a contaminated piece of chicken might contain 4 Salmonella cells/100cm² (paragraph 2), a cross contamination event could result in the transfer of 0-2 Salmonella cells/100cm² or less than 1 Salmonella cell on a piece of chicken of 50 gram size. ... 19....Assuming an infective dose of about 10,000-100,000 cells the population of salmonella cells would need to have some uniformity of distribution throughout the entire twister product, in order that each individual would ingest such a dose. Such distribution is most unlikely. When a Salmonella cell grown on a solid surface, such as the cooked chicken, it produces 2, 4, 8, 16, ...131,072 etc cells as it progressively divides into each generation and time. The accumulating cells remain physically localised and associated with each other. They do not have the ability under these conditions to move themselves to other parts of the chicken meat... there would need to be growth AND EXTENSIVE MIXING OF THE Salmonella cells to give some uniformity or spread in distribution throughout a 50 gram piece of cooked chicken. ... It would need to be determined how much mixing might occur in the product after preparation and purchasing so that each of the four persons who consumed the product acquired an infective dose." 155Professor Fleet was not challenged in cross examination about any matter in his report. In summary, he says: (a)Cross-contamination could result in minimal transfers of cells. (b)The generation time is approximately 20 minutes under optimal growth conditions. (c)Growth rate decreases as growth conditions become less optimum. (d)Generation times: at 30o C - 27 minutes at 20o C - 45 minutes at 37o C - 20 minutes at 48o C - 40 minutes (e)Assuming cross contamination of 2 cells to 50 grams of chicken, it would take 3 hours for the cells to grow to give about 1,000 at 37°C (at 30°C - 4 hours, at 20°C - 6 hours). To grow to 10,000 cells would take 6 hours at 30°C and 9 hours at 20°C. (f)No growth at 50 - 60°C. (g)There is a lag phase of about 2 hours for storage at 30°C and 3.5 hours at 20°C. (h)50 grams of cooked chicken meat contaminated with 2 cells of Salmonella would give 1,000 cells: at 30°C - after 6 hours at 20°C - after 9.5 hours (i)To give a population of 10,000 cells: at 30°C - after 8 hours at 20°C - after 12.5 hours (j)To give a population of 100,000 cells: at 30°C - after 9.5 hours at 20°C - after 15 hours (k)50 grams of cooked meat contaminated with 2 cells would give 100 cells after 5 hours at 30°C and 8.5 hours at 20°C. 156The defendant suggests that, if Dr Givney's views about "clumping", were accepted, they lend weight to the notion that it is highly unlikely that four people could simultaneously ingest an infective dose from two small pieces of chicken. The defendant submits that if the plaintiff's position is that there may have been four clumps of bacteria on the Twister, it was extraordinarily unfortunate for four people to have eaten the meat at a point of clumping bacteria, with each point being disparate from the others. On the other hand, the fact that bacteria form in clumps may help partially explain why Monika was more gravely ill than the rest of her family. However, there was some suggestion that the complications Monika suffered were unusual, which means that those complications could have come about in a moderate case of food poisoning, such as was experienced by her family. 157However, it should be remembered that Professor Fleet's calculations are based on the presumption that the cells are growing on a flat piece of chicken and that there is a transfer of only two cells of the virus. It does not calculate added elements such as breadcrumbs, sauce or handling of the chicken. Matters such as these concern the process by which the opinion was actually formed, which affects the weight, not admissibility of the expert evidence: Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764 at [94], per Spigelman CJ. Crispy Strips are slightly smaller in size than the piece of chicken used in Professor Fleet's calculation (a Crispy Strip is approximately 30g to 45g in weight and about 2.5cm to 3cm wide, about 10 to 13cm long and about 3cm in thickness). It should also be remembered that this calculation takes a minimal number of cells as a starting point. Therefore the greater the initial number of cells, the larger the colony will be in the same time frame. The Twister product is handled during the wrapping and folding process and the use of sauce may also more easily spread a colony of cells across the product. 158Dr Givney's report of 9 August 2010 states that Professor Fleet's use of the "average" number of 2-4/100 cm2, which is taken from a calculation of numbers of cells per carcass using the 'rise technique' (discussed above), is problematic because the sample range of chickens from which that calculation is taken does not give any indication of the highest or lowest level of contamination found in any of the 549 samples of chicken meat and the calculation does not provide any overall estimate (or standard deviation) for the average. While doubting the use of the average number of 2-4/100cm2 and the lag period, Dr Givney did agree that 5 bacteria will take between 4 and 5 hours to grow 1,000 cells. 159Exhibit O shows that in a 230 gram Twister the average total fat would be approximately 32 grams and 10.2 grams of that is saturated fat. Thus approximately 14 percent of the total product is fat. It is submitted by the defendant that, according to Professor Fleet's opinion, when compared with chocolate and cheese, the ratio of 13.9 grams of fat per 100 grams of product is low. However, Professor Fleet's comment was made in relation to chicken meat, not to a complete Twister product with its added ingredients, such as mayonnaise, breadcrumbs and oil. 160Dr Givney in his report of 9 August 2010, at section 5, considered Professor Fleet's model and stated that it: "... assumes that the Salmonella is spread uniformly over an entire chicken. This is unlikely. Bacteria tend to occur naturally in colonies inter alia because they multiple by cell division. A chance event could result in large numbers of microorganisms being transferred from a single point on an above average contaminated piece of chicken." 161Professor Gilbert came to the conclusion that the onset of symptoms in all family members, within hours of each other, suggests a common source but the inconsistencies in the food history made it difficult to determine which food is the most likely source. Salmonella Typhimurium was not isolated from any leftover food from the Samaan home (but no leftover cooked chicken was available), nor from chicken taken from the shop where that raw chicken was purchased. No chicken samples from KFC were tested. Therefore Professor Gilbert considered it could equally have been the schnitzel or Twister that caused the food poisoning, and that the food handling and safety procedures, if followed, in relation to the Twister products indicate that contamination of the final product would be extremely unlikely. 162In Professor Gilbert's report of 24 April 2009, she indicated that likelihood of Salmonella Typhimurium 135a infecting the chicken products used in the Crispy Strips sold at the restaurant on 23 and 24 October 2005, was low. Firstly, this was because Birling, which tested some KFC chicken samples, had not isolated STM 135a in a chicken sample at that time and secondly, no case of STM 135a infection was reported by customers in the restaurant other than the Samaans. 163Professor Gilbert's report stated: "On balance: (i)it is unlikely that the chicken supplied to the restaurant was contaminated with STM 135a; (ii)if chicken were contaminated with STM135a, it is unlikely that it would have multiplied to a level sufficient to cause food poisoning (assuming the storage conditions were as recommended in the Restaurant's procedures manual) or survived the cooking process; (iii)it is also unlikely that other food items were contaminated with STM 135a and therefore the risk of contamination of food preparation surfaces or equipment is also low. (iv)the possibility that cooked chicken could have been contaminated from another source (e.g. the hands of a staff member infected or colonised with STM) is low; (v)if cooked chicken had been contaminated with STM it is unlikely that it would have multiplied to a level sufficient to cause disease in 4 family members, each of whom (presumably) would have eaten a very small portion of the Twister, if any (assuming holding conditions for cooked food were as recommended in the Restaurant's procedure manual). ... ...If a single Twister were shared between the four family members who subsequently became ill. Each would have had a very small portion and the incubation period would have been relatively short. If this were the case, one would have to assume that the Twister was heavily contaminated with STM135a - which is unlikely but not impossible. ... ...based on my conclusion, that the risk that the Twister was heavily contaminated with STM was low, as outlined above, and the assumption that each family member would have consumed a very small portion, if any, it is my opinion that the Twister is an unlikely source of infection in this family. ... Whilst I agree with most of Dr Givney's conclusions, it is my opinion that there is a possibility (rather than a likelihood, as concluded by him) that chicken purchased from KFC was the source of the infections." 164Dr Givney later clarified that likelihood and possibility could mean the same thing in the sense that if there is no rational basis to choose between each possibility, then each has a likelihood. 165I accept the defendant's submission that the great preponderance of the expert evidence points to the plaintiff's 'obvious problem', that it is just possible, but unlikely, that a contaminated KFC Twister caused the illness. The unlikely nature of cross contamination occurring should be considered in light of whether it is more likely than not that standard food safety and hygiene procedures were being followed at the time the Twister in question was produced.

KFC's Standard Procedures 166The standards, policies and procedures Yum!'s store managers are required to follow are contained in what is described as the C.H.A.M.P.S. Standards Library. This is a large volume divided into four sections, encompassing service, products, equipment and management. The volumes are intended to be a source of reference and a training tool. The C.H.A.M.P.S. Standards Library contains information on sanitation, food safety and a number of procedures for reducing bacterial growth (exhibit TBI 6). 167The requirements are designed to prevent a breakdown of the measures that have been put in place by Yum! to make it impossible to contract Salmonella. The experts who gave their opinions in this matter have generally accepted that if these standards are followed it would be almost impossible to contract Salmonella poisoning from any of KFC's products, including the Twister. 168The C.H.A.M.P.S. standards require that prepacked Twisters, should not be held in a warmer for more than 5 minutes and that Crispy Strips must be less than 30 minutes old when they are served to a customer (exhibit TBI 6 at 2392). 169The cooking and preparation processes have been described above. Professor Fleet was provided with Mr Pavic's report dated 27 May 2008 and he attended a view at KFC Villawood in October 2008, at which, staff demonstrated the cooking and food handling procedures. Professor Gilbert's opinion was that if the documented procedures for the preparation of the Twister, including storage were followed at all times, it would be extremely unlikely that Salmonella bacteria could survive the preparation and cooking procedures. Dr Givney's reports are entirely based upon Mr Campbell's investigation of Twister and Zinger products at KFC. 170Professor Gilbert's summary of Mr Campbell's investigations is helpful: "At KFC Villawood, Campbell conducted a through investigation of processing, heated storage and packing of Twister and Zinger fried chicken products. He stated that: There was adequate safeguard to ensure proper cooking and prevention of contamination of cooked chicken by raw chicken It is unlikely that salmonella would survive the high temperature of deep frying No breaches of Food Safety Standards, in relation to hygienic practices or cleanliness of premises and appliances, were identified Food storage, preparation, cooking and serving, cleaning of premises and equipment and staff training and hygiene (including hand washing) procedures were all adequate and appropriate Procedures were documented and believed to be followed by staff Lettuce (the only common ingredient in Twister and Zinger) and Mayonnaise were carefully stored and purchased from reputable sources and thought to be unlikely sources of contamination Dried bread mix for one day is stored in covered bin, any remaining is discarded at the end of the day and the bin cleaned and dried Separate bread mixes and deep fryers are used for Twister and Zinger products. No raw chicken and other food items from the batches consumed by the Samaan family from KFC were available for testing." 171However, it is apparent that at the time the Twister was purchased, KFC Villawood was documented as performing at 'breakdown' level. On 17 June 2005, Huseyin Urfan conducted a C.H.A.M.P.S. Excellence Review of the stores and assessed KFC Villawood as receiving a possible 51 out of 100 points; for cleanliness (10 out of possible 15 points or 67 percent), hospitality (4/16 points or 25 percent), accuracy (12/12 points or 100 percent), maintenance (7/9 points or 78 percent), product (6/29 points or 21 percent) and speed (12/19 points or 63 percent). 172Mr Urfan's comments in relation to cleanliness included noticing an absence of hand washing procedures, including not washing hands before putting on gloves. He noted that the staff toilets were in need of repair, that various areas of the store and toilets had build-up and required cleaning and that cleaning checklists were not being used. 173In relation to food preparation, Mr Urfan recorded that: chicken on the bone was not within quality temperature standards because it was held over time at 58°C; that product either had expired, was not held properly or it had no hold time recorded; that the breading procedures for preparing Crispy Strips were not followed because the flour and dip water were not properly maintained as the dipping water was not being discarded as required; that freezer-to-fryer products were not prepared according to procedure; that proper loading/cooking procedures were not followed when preparing Crispy Strips because the chicken was not dropped (presumably into the fryer) immediately after breading and that the fryer was not at 'drop' temperature at the start of the cooking cycle. 174In August 2005, Deirdre Rukavina conducted another C.H.A.M.P.S. Excellence Review of the store. This time the store scored 82 percent and its performance rating was recorded as standard. The store lost some points due to incorrect appearance and taste of chicken on the bone product as well as some product, including Crispy Strips, not being discarded as required. In addition, a three-compartment sink had not been cleaned using the three step cleaning method. Ms Rukavina's oral evidence is discussed below. 175On 14 December 2005, Hayley Brown conducted a C.H.A.M.P.S. Excellence Review of the Villawood store and again found the restaurant was performing at the Breakdown (STB) level and that the previous Action Plan was not utilised. The store scored 65 percent and it was noted that spoiled chicken was in use, proper hand washing procedures were not being followed, and that cold products and ingredients had expired. It was also noted that regular detail cleaning to the store and bathrooms was not being conducted. 176The parties agree that there were no penalties, warnings, improvements, prohibitions or other notices issued by or on behalf of the NSW Food Authority in respect of the KFC Villawood store during the years 2004 and 2005. 177No evidence was led of any failure or defaults in the preparation and cooking procedures of the Twister in question and in these circumstances the plaintiff asked the Court to infer from the evidence of the store employees of occasional non-adherence to food preparation and cooking procedures prescribed in the KFC manuals, that the relevant Twister was infected.

Staff behaviour at KFC Villawood 178The plaintiff adduced evidence from KFC employees about staff behaviour and hygiene practices, which the defendant submits is not directly relevant, does not have significant or any probative value (for the purposes of s 97(1)(b) or s 98(1)(b) of the Evidence Act) and which, it is submitted, is in the nature of tendency or coincidence evidence that could not support an inference that the Twister was not thoroughly cooked through by deep frying, nor that the staff did not adhere to the various controls in place to maintain the temperature of the food. The defendant also submits that two employees, Ms Cabassi and Mr Alhindawi, did not have the time nor opportunity to make critical observations of the burger station, the cool room or the cooking area because they had only very recently commenced working at KFC as trainees prior to 24 October 2005. 179The first issue in relation to the defendant's objections to the evidence is whether the witnesses' testimonies are actually in the nature of tendency or coincidence evidence. 180The commencement point for any discussion of the objection to this evidence is the general structure of the Evidence Act. Evidence is admissible if it be relevant and otherwise not subject to an exception: see s 55 and s 56 of the Evidence Act. If evidence or material could, if accepted, rationally affect (directly or indirectly) the assessment of the probability of the fact in issue, then it is admissible. 181KFC objects to the evidence on the basis that it is subject to an exception to its admissibility under s 56 by virtue of the provisions of s 97 or s 98 of the Evidence Act. It is submitted that the evidence is tendency evidence. 182In relation to tendency evidence, I reiterate what I stated in KJR v R [2007] NSWCCA 165; (2007) 173 A Crim R 226, at [44], that: "The purpose of section 97 of the Evidence Act, dealing with tendency evidence, is to render impermissible a chain of reasoning and not necessarily a state of facts. If the inadmissible chain of reasoning is the only purpose for which the evidence is adduced, as a matter of law, the evidence is not admissible: DPP v Boardman [1975] AC 421 at 453, per Lord Hailsham." 183The first enquiry should be to what fact or facts in issue is the material sought to be adduced relevant; i.e. the assessment of the probability of the existence of what fact or facts in issue does the material, if accepted, rationally affect? The evidence of these employees is relevant to a number of facts in issue. KFC adduces evidence of its procedure as a system. Technically, that evidence is evidence of a direction to employees (and franchisees) of the manner in which work is to be performed. Of itself, it does not evidence compliance with the system. The evidence of compliance arises from the steps taken to enforce or to require adherence to the procedures. 184The evidence of the practices at KFC Villawood during the latter half of 2005 is relevant to that issue of fact, namely, the degree to which the procedures adopted by KFC applied universally and the degree of confidence that the Court should have in KFC's system actually operating. 185The burden of proof on the plaintiff is satisfied, in this case, by showing, on the evidence accepted by the Court, that KFC is the only possible source of infection. KFC adduces evidence of its system in part to show the impossibility, or at least improbability, of infection from KFC. The practices at Villawood at that time diminish the persuasiveness of the KFC evidence of system. 186I doubt that the evidence of practices is strictly tendency evidence because it is being used to prove the possibility of such conduct, notwithstanding the implementation by KFC of its procedures. Nevertheless, on one view, the practices are being used to show a tendency that KFC had, at Villawood, not to follow the procedures fully. If so, and if the evidence be tendency evidence, notice of it was given well in advance and the evidence will, by itself and having regard to other evidence, have significant probative value. 187The extent of the notice given by the plaintiff of the precise evidence and its use (albeit without formal reference to s 97 of the Evidence Act) has put KFC on sufficient notice, and to the extent necessary, application having been made, I direct that the provisions of s 97(1)(a) of the Evidence Act not apply.

Danielle Cabassi 188Ms Danielle Cabassi worked at KFC Villawood in October 2005 and she was rostered on to work on the day Mr Samaan purchased the Twister. She commenced working at the store just before her 15th birthday (transcript 27 July 2010, at 324) and continued to work about two shifts a week, of not more than 6 hours each, on weekends at the checkout counter in the store and at the drive in, for about two years. While she worked at these stations, she could not see directly into the area where the cooks were working. Having recently commenced working at the store, Ms Cabassi had only worked for a few hours here and there at KFC Villawood before Mr Samaan purchased the Twister. 189Ms Cabassi gave evidence that during the time she worked there, she had observed the cooks flour the raw chicken. Occasionally, if the timer had gone off on the machine in which the chicken was being cooked, the cooks would rush to lift the lid up and pull out a tray of chicken without having first washed their hands. Ms Cabassi stated that the cooks would then use tongs to remove the chicken to put it onto a tray and then into a warmer. She stated that she observed that blood was still on their hands. 190Ms Cabassi observed cooks using a white hand basin to wash their hands. In the first three months of her employment with KFC, she recalled seeing flour on the hands of the cooks when using tongs and entering the cool room. Ms Cabassi gave evidence that during this time, and "nearly all the time", she observed staff at the burger station working with only one glove on. Ms Cabassi also gave evidence that the store manager and assistant managers kept "quite a strict eye on things". 191Ms Cabassi recalled that, upon commencing work at KFC, she was given training to complete including "20 or so" modules to take home. Ms Cabassi could not recall any of these modules containing information on bacteria, Salmonella or cross contamination. In cross examination, Ms Cabassi indicated that she remembered the Restaurant Basics book (exhibit 3), a questionnaire asking about, amongst other things, cross contamination, but she was unable to recall filling it out.

Hatem Alhindawi 192Mr Hatem Alhindawi was 16 years old when he commenced working at KFC Villawood on 12 October 2005. The longest shift he worked between 18 October and 28 October was three hours. He was employed by the store for about one and a half years. The witness recalled the staff skylarking and playing a number of tricks on each other, including locking each other in the cool room and throwing chips, herbs and 'strips' (presumably Crispy Strips) at each other (transcript 27 July 2010, at 358 to 359). Mr Alhindawi, when asked if there was any particular reason why strips were thrown, stated that they were the easiest to throw. He stated that the food was only thrown when the managers were not around. Mr Alhindawi was cross examined on the issue of food being thrown around and he gave the following responses: "Q. Really it's something that hardly ever happens, just throwing food around? A. No, used to happen often. Q. Pardon? A. It used to happen often. Like I used to do it every now and then, muck around. Q. You used to do it? A. Yeah. Q. Every now and then? A. Yeah like I will do it and I'll stop and somebody else would do it to me, you know. Q. You were trying to advance your career as an employee of KFC? You were trying to impress KFC with your working ability? A. Yeah, yes sometimes. Q. You undertook courses with KFC? A. Well what do you mean? Q. The certificates I've shown you? A. They weren't courses, they were just the booklets, like no-one ever-- Q. You went to the trouble of getting them? A. Yeah, yeah. Q. To impress KFC? A. Yep. Q. I suggest it's highly unlikely that in those circumstances you would have actively thrown food around which would have put your job at complete risk wouldn't it? A. Yeah but like to be honest with you I really didn't care, like I was just doing it for fun, that's why I was working there. Like at the start I did care but then within the like first two or three weeks I seen everyone else doing it so I thought you know. Q. And did this happen during the hours the store was open? A. Yes. Q. So it didn't matter the customers might have seen it? A. Yeah maybe, sometimes customers would see it but it would mostly happen in the packing area and in the cool room where the grocery is. HIS HONOUR Q. In the cool room did you say? A. Yeah. BARKER Q. And it didn't matter how much people were outside looking in? A. No it didn't matter. Q. Did you throw food around in the view of customers so that people outside the store could see what was happening? A. No never in the, like front, never in the front, it would be always in the packing area or like where the cooks are or the cool room and stuff. Q. But you were mostly on the front counter weren't you? A. Yes sir." 193Mr Alhindawi observed the cooks using tongs and wearing gloves. 194Mr Alhindawi stated that he observed cooked chicken being removed from the cooker and being placed, in its cooking cage or basket, on the breading table. He stated that when the cage was opened some of the cooked chicken would fall onto the breading table. It would then be placed back into the henny penny. The witness stated that tongs were only used if the food was very hot. He also observed cooked chicken fall onto the floor, which was picked up and returned to the henny penny. Mr Alhindawi gave evidence that he would occasionally be asked to help pack cooked chicken, which he did with his hands, after he had been working at the front counter. 195Mr Alhindawi recalled that he was required to look through a number of folders on his first shift, presumably the C.H.A.M.P.S. Standards Library, and fill out a booklet. The witness described asking Mr Polman (an Assistant manager) for help with answering the questions, and his evidence is that Mr Polman directed him to the correct answer in the folders. In cross examination, the witness gave evidence that he copied the answers from another booklet that had already been completed. Mr Alhindawi was also given training related to KFC wraps.

Zainab Ruda 196Zainab Ruda worked at the store for about three or four years from the age of 15. She 'packed' the food, which meant that she would make up a product such as a burger from cooked items (rather than cooking the food). She would work weekends and weeknights. Ms Ruda worked one shift between the period 18 October 2005 and 31 October 2005. 197Ms Ruda observed that cooked chicken would sometimes be placed on the breading table, and would come into contact with the flour. During her time at KFC, Ms Ruda also saw chicken fall on to the floor. 198Ms Ruda received training as a packer and in customer service before commencing work at KFC. The witness recalled filling out a questionnaire about occupational health and safety when she first began. Ms Ruda's evidence was that she was never given any training about food service critical matters or infectious diseases, such as Salmonella. Rather, the witness was required to complete the booklet with a text provided for assistance, presumably the C.H.A.M.P.S. manual. Ms Ruda believed that she was aware of what cross contamination was as a result of her comprehension skills rather than training provided by KFC. The witness recalled that she filled in the Restaurant Basics form on more than one occasion, however she was unable to confirm if these questionnaires were filled out annually.

Marie Hatcher 199Marie Hatcher was employed by KFC as an Area Manager in South-West Sydney at the relevant time. Included in her zone was the Villawood store. The General Manager of the Villawood store reported directly to Ms Hatcher in 2005. 200Ms Hatcher denied that frozen chicken products were kept in the store to meet an unexpected surge in demand. Ms Hatcher may have seen food held beyond its holding time at KFC Villawood but she could not say with certainty whether this was in 2005 (transcript 3 August 2010, at 646).

Deirdre Rukavina 201Yum! employed Deirdre Rukavina as the C.H.A.M.P.S. Excellence Review Manager from June 2004 until February 2010. Ms Rukavina stated that she visited KFC Villawood four or five times over the course of her five years as C.H.A.M.P.S. Excellence Review Manager. Ms Rukavina's evidence was that during those visits she never saw misbehaviour, throwing of food, employees locking each other in the storeroom, or preparation of food with unwashed or bare hands (transcript 29 July 2010, at 422). On 10 August 2005, Ms Rukavina conducted a C.H.A.M.P.S. Excellence Review at KFC Villawood and awarded the store a total score of 82 percent (transcript 29 July 2010, at 415). 202In addition, Ms Rukavina noted that the C.H.A.M.P.S. Excellence Reviews from 2005, conducted by other managers, indicated that KFC Villawood was a "clean and well-maintained store with a friendly helpful team focused on great customer service" (transcript 30 July 2010, at 444). Ms Rukavina said that video cameras were spread throughout the store however she could not recall the precise location of the cameras. These video cameras would have recorded the activities in the kitchen and burger station (transcript 29 July 2010, at 422). The films from these cameras, as earlier explained, were not available to the parties. I draw no inference from their destruction as part of the regular culling of material.

Mergime Recaj 203Mergime Recaj was employed by KFC for almost 5 years. The majority of that time was spent in the KFC Villawood store, where Ms Recaj was a Customer Service Team Member ('CSTM'), a cook and from July 2005, Assistant Manager of the store. Ms Recaj may have been on duty on 24 October 2005 however she was unable to recall (transcript 5 August 2010 at 848). 204Ms Recaj gave evidence that she saw chicken fall from the clam, when open, and onto the floor. There was one specific occasion Ms Recaj recalled seeing chicken fall on the floor. She threw the chicken in the bin (transcript 5 August 2010, at 852). 205Ms Recaj stated that during the second half of 2005, KFC Villawood was a serious place to work, however the employees had fun and used to "throw the jokes around". Ms Recaj did not remember anyone being locked in the cool room, people throwing around chicken or any other skylarking (transcript 5 August 2010, at 863-4). 206In her evidence, Ms Recaj conceded that it was not easy to manage the store, as she was young and a similar age to the employees of whom she was in charge (transcript 5 August 2010, at 871). In particular, Ms Recaj noted that it was difficult to get the employees to do the right thing (transcript 5 August 2010, at 872). Having refreshed her memory, Ms Recaj agreed that following food safety procedures at KFC Villawood was a problem during the second half of 2005 (transcript 5 August 2010, at 879). 207During 2005, it was KFC policy that staff members receive training in relation to the area in which they worked (transcript 5 August 2010, at 850). It was Ms Recaj's evidence that KFC cooks were "advised in their training" about the dangers of cross contamination, however the witness was unable to recall whether this training had occurred in October 2005. During cross examination, Ms Recaj confirmed that during her food training she received information, for example, about the danger zone for Salmonella.

Harley Polman 208Harley Polman has been employed by KFC for over 9 years. During the relevant time, he was an Assistant Manager at KFC Villawood. During evidence, Mr Polman could not recall whether he was on duty on 24 October 2005 (transcript 5 August 2010, at 817). In December 2005, Mr Polman was reprimanded, and suspended immediately, during Ms Hayley Brown's review of the store because food was found that had been kept beyond the discard date (transcript 5 August 2010, at 820). 209Mr Polman recalled that he always wore gloves when making burgers (transcript 5 August 2010, at 821). He always saw other people at the burger station wearing two gloves (transcript 5 August 2010, at 838). The witness never took the clam out with flour and/or blood on his hands and he never saw anyone else do this (transcript 5 August 2010, at 839). The witness recalled that he saw chicken fall to the floor on occasion (transcript 5 August 2010, at 840). 210Mr Polman recalled that he sometimes saw counter staff making burgers if the burger station was too busy or if there was only one person rostered on to make burgers (transcript 5 August 2010, at 845). However, it was KFC policy that cooks were not allowed to handle food products at the burger station, as they had not received the appropriate training (transcript 5 August 2010, at 843). This policy was not applicable if the employee was an All-Star, as these individuals were trained in customer service as well as cooking (and thus would help if necessary). 211During cross examination, Mr Polman gave evidence that KFC employees were required to complete safety questionnaires every year (transcript 5 August 2010, at 836). Included in these questionnaires were issues surrounding bacteria in food. In his statement, Mr Polman recalled that KFC cooks were trained in procedures for handling raw and cooked chicken. The witness was questioned on whether flour was including in training on cross contamination at KFC. Mr Polman confirmed that flour was included in training, however this was absent from the witness' initial statement (transcript 5 August 2010, at 837). Moreover, Mr Polman conceded that warnings regarding flour transporting cross contamination from raw chicken to cooked chicken were not contained in the KFC Manual (transcript 5 August 2010, at 838).

Liliana Teixeira 212Liliana Teixeira was Restaurant General Manager at KFC Villawood in June 2005. In October 2005, she was General Manager of the store. Ms Teixeira had staffing problems relating to theft from time to time, as well as other forms of dishonesty, for example, handing out food for which there had been no payment, for example, to friends of staff. 213Ms Teixeira cleaned the store in the morning and evening and throughout the day as necessary. KFC Villawood did not have professional cleaners and so it was up to the staff to do their own cleaning, including the floor in the restaurant area (transcript 4 August 2010, at 735). Ms Teixeira also noted that occasionally she had behavioural problems with the staff, including locking each other in the cool room. 214The witness never saw staff throwing food at each other or the cooks lifting the lid off the cooked chicken without washing their hands. She never saw chicken fall and land on flour, yet from time to time she did see chicken fall out and land on the floor. This chicken was never put in the henny penny (transcript 5 August 2010, at 774). 215Ms Teixeira did note that there were problems keeping up the standards at the KFC Villawood store in the last 6 months of 2005. She did regularly see flour on the handle of the cool room door. In addition, the witness observed people at the burger station only wearing one glove between June and December 2005 (transcript 5 August 2010, at 765). In re-examination, it was clarified that in these circumstances, the ungloved hand was holding tongs (i.e. there was never a bare hand touching food at the burger station).

Travis Dobson 216Travis Dobson was employed as a cook, and then an All Star (meaning he was trained to perform all duties in a KFC store) at KFC Villawood. On 24 October 2005, Mr Dobson was on duty at KFC Villawood. Mr Dobson could not recall what his main duty would have been on that day (i.e. whether he was cooking, serving customers or on the burger station). 217Mr Dobson's personal hand washing practice was to wash his hands "every single time... no matter what" (transcript 5 August 2010, at 789). Mr Dobson saw other people doing the same. When working on the burger station, Mr Dobson recalled that everyone wore gloves. However, the witness noted that gloves were not worn when 'breading-up', a practice that was in accordance with KFC Health, Sanitation and Food Handling Procedures. 218Mr Dobson stated that the cooks would clean as they went as this was something on which Ms Teixeira was very strict. Mr Dobson never saw people entering the cool room with flour on their hands; chicken fall out of a clam after it had been cooked; chicken on the shelf after its tag time had expired; chicken that was cooked on its use by date rather than being discarded the day before; the clam taken out of the oil onto the breading table; flour on the cool room handle; or people being locked in the cool room as a joke (transcript 5 August 2010, at 803-4). Mr Dobson never saw chicken pieces fall on the floor, nor did he see employees throwing food around (transcript 5 August 2010, at 791-2). Indeed, Mr Dobson's evidence was that he never saw anyone depart from any KFC food safety rules during his shifts at the store (transcript 5 August 2010, at 803). 219Mr Dobson knew about cross contamination (transcript 5 August 2010, at 806), however his evidence does not definitively support a conclusion that this knowledge can be attributed to KFC training. Moreover, Mr Dobson's evidence was that he was never given information about the possibility of raw chicken having Salmonella (transcript 5 August 2010, at 815).

Staff behaviour at KFC Villawood - Conclusion 220Generally, the evidence was consistent that the standards set by KFC were not met during the latter half of 2005. I do not accept the evidence of Mr Dobson, at least insofar as it relates to other employees. His demeanour, and if it be different, his reaction to questioning, showed no basis upon which one would be confident of the truth or accuracy of his evidence. On the other hand, the demeanour of Ms Recaj, Ms Ruda, Ms Cabassi and, especially, Mr Alhindawi rendered their evidence completely believable. I would expect the skylarking of which they gave evidence to occur less in the presence of the manager, and not occur at all when the Area Managers, and others in the more senior hierarchy, were present. I also conclude that some of the witnesses were, consciously or otherwise, downplaying the level of misbehaviour until confronted by specific examples or independent evidence.

Mr Samaan's evidence as to the preparation of the Twister 221Mr Samaan's recollection of the purchase of the Twister is as follows (second further evidentiary statement of Amanwail Samaan, dated 22 June 2009): "9.I recall that there were a number of people waiting in the queue behind me at the time I ordered. I recall that the Arabic speaking girl who served me took a chicken burger and two packets of hot chips and put these into a bag. She did not however make the chicken Twister. 10.This was done by a young boy who came out from the kitchen behind the main service area specifically to make the Twister. I recall that this boy appeared very young, skinny and of white European appearance. 11.I observed him as he took out pieces of chicken from a holding area. He put these pieces in a tortilla with lettuce and wrapped it up in paper packaging using his hands. I do not recall whether he was wearing gloves and I do not recall seeing him put gloves on or take them off when he came out from the kitchen to make the Twister." 222The defendant submits this evidence is "manifestly false". The defendant submits that it was not possible for Mr Samaan to have observed the Twister being prepared because of the way KFC Villawood is physically set up. Mr Samaan described his recollection under cross examination (transcript 20 July 2010, from 187). I accept his evidence that the store appeared to be busy with school children. Given the foregoing findings, the evidence of how and where the Twister was prepared has no rational effect on the issue of food safety at KFC Villawood. Moreover, I do not consider (assuming Mr Samaan is wrong as to what he said) that this affects his 'truthfulness' but rather his recollection (otherwise excellent) of an event that was, at the time, unexceptional. Moreover, Mr Samaan may well have seen (despite the limited visibility from the front of the counter of the kitchen and preparation area) a person move from the cooking area to the preparation area and assumed (and generally believed) that was for the preparation of the Twister.

Conclusion 223The plaintiff has only faintly raised the possibility that the strips in the Twister could have been undercooked and while there is some evidence that standard procedures were not being followed at KFC Villawood around the time Mr Samaan purchased the Twister, there is nothing that would satisfy the Court the Twister that Monika ate could have been undercooked. The cooking time was automated. The chicken was not 'pink' and, unless the chicken were frozen (of which there is no evidence), it is most improbable that it was undercooked. 224The defendant has submitted that there is no evidence of where the relevant strain of cross infective Salmonella might have originated and if the chicken strip was free of Salmonella upon its supply to KFC, improper handling of the type described by the store employees before cooking could only infect the chicken with Salmonella if there were some other source of Salmonella in the store that would provide a means for cross infection. The logic in this submission is flawed in that the expert opinions from both sides agree that there is a 35 to 50 percent likelihood that the chicken supplied to KFC contains Salmonella. Further, the evidence is clear that there are readily available sources for cross contamination if food were mishandled or if KFC hygiene practices were not followed. 225The defendant submits that there is no evidence from which the Court can infer that the strip was exposed to a Salmonella source after deep-frying. If a piece of chicken were to fall onto the breading table or even the floor, it is submitted, it would have just come out of boiling oil in a metal container at 175ºC and would remain too hot at its surface for Salmonella bacteria to multiply for some appreciable time. If put in the henny penny (kept at 60ºC), it would become free from Salmonella (or certainly, any Salmonella cells would not grow), even if it had somehow picked up cells after cooking. The clams were too hot to handle with bare hands. 226If the Twister somehow were to come into contact with Salmonella bacteria during the assembly process, the defendant submits that the cell growth would need to reach an infective dose level distributed evenly across the two chicken strips within about 20 minutes of exposure at 37°C, as it is suggested that the plaintiff's evidence was that the Twister was eaten within approximately 15 minutes of purchase. In fact the plaintiff's evidence is again vague as to the approximate time the Twister was eaten (see for example transcripts 4 August 2009, at 75.5 -.11; 20 July 2010, at 182.5 -.37; 183.2 -.48; 158.45). Monika came home and looked at the new baby before she ate her meal. It is therefore likely the Twister was eaten about 20 to 30 minutes after it was purchased. The defendant suggests it is statistically improbable, within this time frame, for Salmonella to become distributed throughout the Twister with enough toxicity to cause four people (two adults and two children) to be ill from eating approximately 15 to 25 grams each of chicken meat. I accept the statistical improbability of such an occurrence. 227Further, the defendant appears to base this argument on Professor Fleet's estimations of the standard distribution of bacterial growth on a single piece of chicken. The defendant has not addressed the issue that the Twister (as the C.H.A.M.P.S. manual implies) tends to cool down more quickly than other KFC products, which presumably would be due, in part, to its other ingredients, including mayonnaise sauce, which could also facilitate the spread of bacteria throughout the product. This is a second issue only touched upon in the evidence and submissions of both parties. 228The question of distribution of Salmonella bacteria is a vexed one. In some senses it is a 'red herring' when it is considered in relation to the question of what possible dosage of bacteria each family member could have ingested. The only evidence that was presented in this regard was that some people may be more susceptible to Salmonella poisoning than others. Therefore there is a possibility that one person may ingest more Salmonella cells than another and either not become sick or be less ill than the person who ingested fewer, and vice versa. It is not possible to assume that Monika ingested more Salmonella bacteria than the rest of her family, from which premise the parties worked. It is possible that Monika did not ingest many, or any, more bacteria that the rest of her family, but that she was unlucky either in that the Salmonella poisoning she experienced was marred by other complications or that she may have been, either due to her size, or due to other physical reasons, more susceptible to the illness than the rest of her family. 229The defendant submits that the question of cross contamination can also be discounted for the reason that the burger station employee making the Twister would have also made the burger purchased by Mr Samaan for Monika's brother, Abanoub. Therefore, it is suggested that if the cook had dirty hands, or the Twister was placed on a contaminated preparation area after cooking, it would be expected that the burger would also have been infected. The defendant suggests that this is known not to be the case as the plaintiff claims the only common food eaten was the Twister. However, the defendant's submission in this regard defies logic. The plaintiff, Monika, brings this case, hence the plaintiff's concentration of its case on the Twister. It is impossible to draw the defendant's asserted conclusion on the basis that the plaintiff claims that the only common food eaten was the Twister, thus it was only the Twister that could possibly have been contaminated. Abanoub was also ill, whether or not this illness came from the Twister alone, or also from the burger, is not to be determined by the fact that the Twister was the only common food to the family. 230The defendant argues that any tendency evidence in relation to the sometimes lacklustre food handling procedures by KFC staff at Villawood must be weighed against the following evidence: (a)No other person complained of falling ill or at all about food supplied by the Villawood store on that date; (b)No records were produced by area health and food authorities of complaints, notifications, reports or investigations into any other incidences of Salmonella poisoning having any connection with the defendant's Villawood store for the period 1 October 2005 to 31 December 2005; (c)There were no penalties, warnings, improvement notices, prohibitions or other notices issued by or on behalf of the NSW Food Authority in respect of the KFC Villawood store during 2004 and 2005; (d)The defendant has no record of any other complaints or notifications relating to Salmonella poisoning made by customers of the KFC Villawood store during the years 2003, 2004 and 2005; and (e)The KFC employees called by the defendant had more experience in the Villawood store and generally presented more credibly than those called by the plaintiff. 231Evidence of underreporting of food borne illnesses has been presented to the Court, which I accept. The lack of documentary evidence in relation to any relevant complaints adds some weight to the defence, however, the real issues lie with the evidence of KFCs employees in relation to whether there is some possibility that the Twister Mr Samaan purchased for Monika could have become contaminated through errant food handling procedures between the time Crispy Strips had been cooked and the time the finished product was handed to Mr Samaan. 232It is accepted that if food preparation and food handling procedures are properly followed, the risk of infection is so low it is close to nil, that is, almost impossible. The evidence from KFC employees, from the expert evidence and from the KFC's food handling guides canvassed the following theoretically possible causes of contamination: (a)The Crispy Strips were not cooked for long enough. (b)The henny penny was at the wrong temperature. (c)The Crispy Strips were left in the henny penny for too long - i.e. they were no longer fresh. (d)Tongs were used to remove the Crispy Strips that may have been contaminated with flour or blood, which carried the Salmonella bacteria. (e)The Crispy Strips were dropped on the floor. (f)The Crispy Strips were placed on top of the breading table and came in to contact with flour. (g)The hands of the person who prepared the Twister, either gloved or ungloved, carried Salmonella bacteria, which was transferred to the Twister. 233The evidence of mishandling of the chicken provides enough weight, when combined with all of the other evidence, to enable the conclusion to be drawn that it is more likely than not Monika's Twister became contaminated while it was being handled or made up. The evidence, relating to infectious doses leads to the conclusion that it is not theoretically impossible for four people to become infected from one chicken Twister. From a careful process of reviewing, accepting, and at times excluding, the evidence given by both the food authorities and by the Samaan family as to the food eaten during the 72 hour incubation period, I conclude that realistically, the only, and at least the most probable, carrier of the Salmonella bacteria that caused the family's illness was the Twister that Mr Samaan purchased from KFC's Villawood store on 24 October 2005. 234This matter has caused some difficulty. While the primary facts were settled at a very early stage, including the attitude of the Court to the veracity and reliability of the oral evidence, the effect of that evidence on liability has caused some difficulty in resolution. 235As is clear from these reasons up to almost 50 percent of all farmed chicken has some Salmonella. KFC has implemented a process that, when followed, renders impossible the survival of Salmonella cells. That process is described in this judgment. Further, KFC has an audit system to ensure that the process is followed. The process includes: ensuring the raw chicken is cooked at temperatures and for a time that will ordinarily destroy Salmonella; cooked chicken is kept warm for no more than a maximum period, also at temperatures that would maintain the food at a temperature that would, itself, destroy Salmonella or at least prevent its growth; hand-washing regimes; and regimes for the use of cooking tools and equipment. The processes, as stated earlier, are summarised herein. 236In the ordinary course, again assuming compliance with KFC procedures, it is effectively impossible to contract Salmonellosis (Salmonella poisoning) from KFC. Moreover, as earlier stated, compliance with those procedures is strictly enforced by KFC and regular unannounced audits are conducted. 237The foregoing renders the likelihood of KFC being the cause of this injury remote and the occurrence generally highly improbable. The degree of improbability is also affected by the number of cells likely to cause illness to each of the affected members of the family and the sales records, which disclose no order that, as a whole, was the same as Mr Samaan's order (on his evidence). 238Against that improbability is the fact that each affected family member did contract Salmonellosis and, most probably, contracted it from chicken. The only chicken meal, according to the oral evidence, which I accept, common to each affected family member, was the Twister from KFC. The acceptance of the oral testimony of Mr Samaan, Mrs Shanoda and Mrs Dous necessarily leads to that conclusion. However, the systems in place at KFC warranted a reconsideration of the testimony of the witnesses. Truthful witnesses can be mistaken and their truthfulness must be re-assessed. 239The effect of the KFC system, rendering, as it does, the contracting of Salmonella poisoning impossible, must be qualified by the evidence of the aberrant behaviour at this store. First, there is the "breakdown" score on audits before and after the alleged purchase. Second, some of those breaches to the high standard set by KFC related to issues affecting (or that may affect) these issues, for example, the temperature of the warming tray and the longer than prescribed time before use. Third, there is the skylarking by employees at this store of which KFC central management (except vicariously) were unaware. Lastly, there is the lack of total accuracy in the cash register results and the capacity, in that area in particular, for human error. 240A Twister was purchased at 3.10pm. That was at or about the time Mr Samaan says he purchased a Twister. A difference of half an hour in the estimate of the time of purchase by the witnesses is unremarkable. The Twister was purchased after school and the "inconsistency" in the time makes no difference to the likelihood that the oral evidence is otherwise accurate and truthful. These were unusual days because of the birth of the baby and the unusual timings may not be probative. Further, the fact that KFC cash registers record a sale of a Twister without any other product does not detract from the evidence of Mr Samaan that he ordered another product. It is far more likely that Mr Samaan's order was split into the Twister and one or other orders. 241It is unnecessary for the Court to find the precise breach in the KFC procedures that has led to the Salmonella cells remaining or being transferred to the Twister. However, there is no suggestion that the Twister was not cooked properly. The timing and temperature of the cooking is automated. For the detailed reasons in the judgment it is unlikely that, if there were Salmonella cells on the pieces of raw chicken, they would have survived the cooking. The chicken, while being cooked, would reach well over 60°C, which would have destroyed the cells. 242On the other hand, given the evidence that I accept of the behaviour of the employees, it is likely, if Salmonellosis were contracted, there was cross contamination of the Twister pieces after cooking, most likely by contact with flour or other dipping material used previously on the raw chicken, or possibly by handling (manually or with cooking utensils). Moreover, it is more likely than not that the tray operated at a temperature that did not ensure the chicken (or, more relevantly, the Salmonella cells) remained at or above 50°C, which means that any Salmonella on a piece of chicken (probably on a clump of foreign material) in the warmer tray for any but a short moment, would have experienced an optimum reproduction environment, augmented by the effect of applying sauce and the delay between sale and consumption during which the temperature of the food would have fallen even further. The effect of that augmentation would have spread and multiplied the Salmonella. This is one of the reasons that KFC has placed such importance on processes that destroy Salmonella and prevent its reintroduction after cooking. 243I do not have to be convinced beyond reasonable doubt of the occurrence. However, I have to be satisfied on the balance of probability. Submissions (and evidence) showing a reasonably available hypothesis inconsistent with KFC having supplied the offending chicken are not strictly on point. 244Nevertheless, by the lower standard of balance of probabilities, I must be satisfied that the Salmonellosis was contracted from KFC. If there were another reasonable possibility, given the KFC procedures, I could not be convinced, even on the balance of probability, of the liability and responsibility of KFC. 245Ultimately, the existence of another reasonable possibility depends on the evidence that is otherwise accepted. I accept, without qualification, the evidence of Mrs Shanoda that she ate the hospital food and not the additional relevant food brought to the hospital by her family. 246I do not consider the evidence of the food inspectors as inconsistent with the evidence of Mrs Shanoda. I accept that their notes derive from statements at the hospital made by Mr Samaan, not Mrs Shanoda. Mr Samaan knew only what was brought to the hospital, not what was eaten. 247Further, the testing of the remaining raw chicken at the Samaan home gives added confidence to the foregoing view. However, that testing would not, by itself and without more, be sufficient to displace the possibility of other causes. 248Finally, for all of the foregoing reasons, I am satisfied, on the balance of probabilities, that: (i)Monika Samaan contracted Salmonellosis from ingesting Salmonella cells on chicken; (ii)The source of that chicken was a KFC Twister brought by Mr Samaan on the afternoon of 24 October 2005 and consumed predominately by Monika within an hour and in lesser quantities by her family (except Mrs Dous and the newborn); and (iii)Monika Samaan's Salmonellosis developed into Salmonella Encephalopathy. 249As a consequence of the foregoing, KFC is liable to Monika Samaan for damages arising from her injuries and I so determine. 250Given the nature of the KFC audits and procedures, real questions arise as to the extent to which vicarious liability ought to attach to the action of those departing from such procedures, in some cases deliberately. If this store were a franchise store, KFC would most likely not be liable, having taken all practical steps to ensure compliance with the procedures. However, this was not a franchise store. Further, given the improbability of an infective dose from KFC generally, if there were another possible source of infection on the evidence that I accept, liability could not be imposed on KFC. 251Ultimately, the law enforces a policy that employers are liable for the acts of their employees. This policy has been implemented at least since 1701: see Hern v Nichols (1701) 1 Salk 289 per Holt CJ and the modern approach is described recently in Hollis v Vabu (2001) 207 CLR 21. But the policy basis for such liability, particularly in circumstances where steps of the kind here have been taken, makes more obvious the call for no-fault liability insurance to cover disabilities. The determination of liability on a business for the aberrant and disapproved conduct of its employees is unfair. Ultimately, it is less unfair than the liability falling on the victim, who has, on the balance of probabilities, contracted a disease from goods purchased and on which she should be able to accept were edible.

Breach of duty of care 252As earlier stated, the plaintiff pleads its causes of action in negligence, contract and statutory causes of action under the Trade Practices Act, Fair Trading Act and Sale of Goods Act. 253An extensive exposition of the legal principles is unnecessary. As KFC have been found, as a matter of fact, to have produced product contaminated with Salmonella cells, the product is not of merchantable quality, not fit for its known intended use and otherwise not in conformity with the description. The provision of such product, intended as it was for human consumption is a breach of contract and a contravention of a number of warranties implied either by the common law or statute. 254Further, as the Court has stated elsewhere, the Court is of the view that the contamination occurred after cooking, by cross contamination with product (directly or indirectly) that was contaminated with the bacteria and, more probably than not, a clump of flour or other such material that was contaminated. That contact was a breach of the procedures mandated by KFC and was negligent, or the use of it after such contact (also a breach of KFC procedures) was negligent. 255These proceedings have been contested on a factual basis, not on the basis of an absence of liability if the facts were concluded against the defendants. This is an appropriate course to have been taken. 256Nevertheless, some adumbration of principle is appropriate. First, I deal with the alleged contravention of the Trade Practices Act. Clearly, KFC, in processing and selling chicken product is engaged in trade or commerce. I do not, for present purposes, distinguish between the duties under the Trade Practices Act and the Fair Trading Act, which are relevantly identical. Further, to the extent relevant, the terms of Schedule 2 to the Competition and Consumer Act 2010 are relevantly identical to ss 66, 70, 71, 74, 74B, 74D of the Trade Practices Act. 257The statutes impose on the provider of goods (or services) to a consumer a duty to guarantee that the goods are of acceptable quality, fit for purpose to be used (if known), and that the goods meet the description of the goods. As earlier stated, if the goods sold were contaminated with Salmonella, the goods were not of acceptable quality; not fit for the purpose for which they were sold (namely, to be eaten); nor does the item meet the description of the goods: see, inter alia, Ryan v Great Lakes Council [1999] FCA 177; (1999) 102 LEGRA 123. 258A later discovered defect, which the supplier (in this case KFC) does not prove did not exist at the time of supply, is a latent defect for which the supplier is responsible: Effem Foods Ltd v Nicholls [2004] NSWCA 332. If there were contamination in the chicken supplied, it could only be from a failure by KFC through its employees, to implement the procedures required by KFC and, therefore, impossibility of discovery does not arise: Graham Barclay Oysters v Ryan [2000] FCA 1099; 102 FCR 307. 259Further, the duties imposed by the common law of contract and/or the Sale of Goods Act are such that this later discovered defect, which existed at the time of sale, renders the goods unmerchantable and/or not reasonably fit for the purpose required. The contract (including statutory warranties) has been breached and damages must flow. To the extent that authority for the foregoing is required, there is abundant authority and I refer to Henry Kendell & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 particularly at 74, 75, 77 and 79, per Lord Reid and to Dixon J in Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 at 413. Reference should also be made to McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1988) ASC 55-695. 260Lastly, there is a cause of action in negligence, governed by the Civil Liability Act 2002, and of particular current relevance, ss 5B, 5C and 5D thereof. 261As these reasons and the evidence from KFC itself, and the experts, make clear, the risk of harm from Salmonella is foreseeable. Steps have been taken by KFC to ameliorate the risks. The risk is not insignificant and no reasonable person in the position of KFC would decline to take the ameliorating steps, particularly having regard to the possibility of harm and the burden in taking the steps, even bearing in mind the utility to the community of the supply of these products. 262In this case, the general requirements of KFC, if followed, eliminate the risk of contamination. The contamination has occurred because of the failure of one or more employees of KFC to adhere to that procedure. The failure to adhere to the procedure was negligent and, more probably than not, given the infective doses most likely to have been on the food, and the steps otherwise taken by KFC to avoid contamination, involved food coming in contact with flour (or some other substance) that was old (in the sense of hours) and significantly affected by Salmonella. I infer the employee 'dusted off' the chicken leaving small clumps of infected 'flour' on the chicken. The Salmonella cells continued to multiply before and after sale and were spread by the use of sauce and other such additives. 263Frankly, there is little any employer can do about behaviour of an employee inconsistent with the procedures mandated by the employer, other than better supervision or better training. There is some evidence, which I accept, that some employees were unaware of the full consequences of a breakdown in the system that was to be implemented. Such knowledge would no doubt impact on the conduct of employees. Nevertheless, the conduct of the employee was negligent and KFC, as the employer, is vicariously liable for the negligence: Hollis v Vabu, supra. 264The relationship between KFC, Mr Samaan and Monika created by the purchase and sale of the product and the consumption of the product as a result of the sale creates a duty of care in KFC to persons in the class of those intended to consume the product: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Adeels Palace v Moubarak (2009) 239 CLR 420; Donohue v Stevenson [1932] AC 562; [1932] All ER Rep 1. 265But for the negligence of the staff, the harm to Monika would not have occurred: Adeels Palace, supra. Liability for the damage to Monika arises in negligence as well. 266It is unnecessary, at this time, to deal with any difference in the calculation of damage in contract or in tort (or under statute). Those issues are matters for assessment of damage.

Which family member ate what meal at a particular time and date and the evidence considered in relation to those findings. This is a table of only the meals that are relevant to this matter. It is not intended to be a complete list of every food item consumed by the Samaan family. Wednesday, 19 October 2005 Dinner Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan BBQ chicken purchased on 19/10/05 from a shop in Smart Street Fairfield Mr Samaan: T 19/7/10 p 149.162 Not at issue Yes Possible Yes Yes Mr Campbell: T 2/8/10 p 542, T 3/8/10 p 548-552

Thursday, 20 October 2005 Dinner Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan BBQ chicken purchased on 19/10/05 from a shop in Smart Street Fairfield Mr Samaan: T 19/7/10 p 149, 161 to 162, 3/08/10 p 541 Not at issue Yes Possible Yes Yes Mr Campbell: T 3/8/10 p 548-552

---------------------------------------incubation period begins --------------------------- Friday, 21 October 2005 Dinner Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan BBQ chicken purchased at Fairfield No No No No No Mr Samaan: T 19/7/10 p 149; T 20/7/10 p 176 Ful (fava or broad beans), lebanese bread, falafel and cheese Not at issue Yes Yes Yes Yes Mr Samaan: T 19/7/10 pp 149; 164 - 165

Saturday, 22 October 2005 Breakfast Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Biftek prepared by Mr Samaan Mr Samaan: T 4/8/9 pp 63-65; 19/7/10 pp141, 154-155; 166-172 Mrs Dous: T 20/7/10 pp 208-209 Yes Yes No Yes Yes Mrs Shanoda: T 26/7/10 pp 271-272; 297; 303 Mr Crone: T 3/8/10 p 585, 614-619 Hospital food Mrs Shanoda: T 26/7/2 pp 271-272; 288; 305 No No Yes No No Dr Nhan's notes dated 28 October 2005 Ms Paterson: T 2/8/10 p 523 Lunch and dinner Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Biftek eaten at other times during the day Ms Paterson: T 2/8/10 pp 522-523; statement 53 No No No No No Mrs Shanoda T 26/7/10 pp 271-72 Mr Crone: T 3/8/10 pp 614-615 Fetta and ham and cheese sandwiches prepared by Mr Samaan Mrs Dous: T 20/7/10 pp 210 -212 Yes Yes No Yes Yes Mr Crone: T 3/8/10 p 581 Hospital food No No Yes No No (See above)

Sunday, 23 October 2005 Breakfast Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Breakfast of eggs, cheese and mortadella at the home of Mr Samaan's brother, Aziz Yes No No No No Mrs Dous: T 20/7/10 p 214 Chicken breast burger and salad presumably using the biftek prepared by Mr Samaan on Saturday Mr Samaan: T 19/7/10 pp 168-169, 154, 172 Mrs Dous T 20/7/10 p 227 Yes Yes No Yes Yes Mrs Shanoda T 26/7/10 pp 271-272 Ms Paterson: Statement 33; 53; T 2/8/10 pp 459, 496, 522-525 Mr Crone: T 3/8/10 pp 585-586 Biftek prepared by Mr Samaan on Sunday Mr Samaan: T 20/7/10 pp 178 Mrs Dous: T 20/7/10 p 210, No No No No No Ms Paterson: T 2/8/10 522-523; statement 53 Mr Crone: T 3/8/10 pp 585, 618-619 Hospital food No No Yes No No (See above) Lunch Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Fish, salad and cheese consumed at a party hosted at Aziz's house. Mr Samaan: Evidentiary Statement; T 4/8/9 T 4/8/9 pp 67-68; 167; 213; 227 Yes Yes No Yes Yes Mrs Dous: Evidentiary Statement Ms Paterson 2/8/10 p 496 Whole BBQ chicken purchased from Bankstown and taken to Mrs Shanoda in hospital Mr Samaan: T 4/8/9 pp 66; 168; T 19/7/10 pp170-173 Mrs Dous: 20/7/10 pp213-214; 227 Mrs Shanoda T 26/7/10 pp 271-272; 297 No No No No No Ms Paterson: statement at 53; T 2/8/10 pp 523; 525 Mr Samaan: T 19/7/10 pp170-173 Mr Crone: T 3/8/10 pp 584, 614 Hospital food No No Yes No No (See above) Dinner Fish, salad and cheese consumed Aziz's party - see above (Sunday lunch) Yes Yes No Yes Yes Hospital food No No Yes No No (See above) Other statements in relation to meals at unspecified times No chicken eaten on Sunday No No Possible No No Mr Samaan: T 19/7/10 pp 141; 166; 227 The family did not eat food they had cooked over the weekend. No No Yes No No Mrs Dous: T 20/7/10 p 214 "A home cooked chicken meal" served to family on 23 and 24 October - most likely the chicken burger Campbell: T 2/8/10 p 539 Yes Yes No Yes Yes Crone: T 3/8/10 p 586 Paterson: 2/8/10 Hospital food No No Yes No No (See above)

Monday, 24 October 2005 Breakfast Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Chicken and salad burger or biftek prepared by Mr Samaan on Sunday 23 October 2005 Mr Samaan: T 19/7/10 pp 167; 169 Mrs Dous: T 20/7/10 pp 214; 226; 240- 242 Ms Paterson: T 2/8/10 pp 491; 459 Possible Yes No Yes Yes Mr Samaan: T 19/7/10 pp 167; 178 Mrs Dous: T 20/7/10 p 214-215; 226; 240,-242 Mrs Shanoda 26/7/10 p 272 Cold meat sandwich No No No Yes Yes Mr Samaan: T 19/7/10 pp 168 Hospital food No No Yes No No (See above) Lunch Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Two chicken burgers purchased from KFC after 1pm, chips and orange juice Mr Samaan: T 4/8/9 pp 70-71; T 19/7/10 157-160; T 20/7/10 pp179-180; Mrs Dous: 20/7/10 pp 214, 227 Yes No Yes No No Mrs Shanoda: 27/6/10 pp 303-304 Ms Paterson: T 2/8/10 pp 522-523 Chicken 'Twister' meal purchased from KFC after 3.15pm, chips and orange juice Mr Samaan: T 4/8/9 pp 72-75; T 19/7/10 pp152, 157 -163; T 19/7/10 157-160; T 20/7/10 pp179-180; Mrs Shanoda: T 26/7/10 pp 283-285 No Yes Yes Yes Yes Ms Paterson: T 2/8/10 pp 522-523, 530 Mr Crone: T 3/8/10 pp 614-615 Chicken 'Zinger' burger purchased from KFC after 3.15pm, chips and orange juice Mr Samaan: T 4/8/9 pp 72-75; T 19/7/10 157-160; T 20/7/10 pp179-180; Mrs Shanoda: T 26/7/10 pp 283-285 No No No No Yes Ms Paterson: T 2/8/10 pp 522-523 Mr Crone: T 3/8/10 pp 614-615 Dinner Mrs Dous Mr Samaan Mrs Shanoda Monika Samaan Abanoub Samaan Bread, cheese, basturma, eggs and ham Yes No No No No Mrs Dous: T 20/7/10 pp 226 Sliced bread with ham or mortadella and cheese. Mrs Shanoda: T 26/7/10 pp 274; 286 No No Yes No No Mr Crone: T 3/8/10 p 601

------------------------------------incubation period ceases ------------------------

Amendments 23 April 2012 - A number of formatting errors and typographical were corrected. Amendmends made do not affect substance or effect of judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2012

Legal Principles 15The central issue in this matter is whether the plaintiff has established on the balance of probabilities, that the source of the Salmonella poisoning was a Twister purchased from KFC Villawood. It is therefore apposite to state the relevant legal principles. 16Section 140 of the Evidence Act 1995 provides: "140 Civil proceedings: standard of proof (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged." 17Section 140 reflects the common law position that the civil standard of proof allows for the co-existence of alternate possibilities as a consideration to be weighed in determining whether the standard has been reached: Murray v Kickmaier [1979] 1 NSWLR 414, per Reynolds JA. This standard is dependant on the facts and circumstances of a particular case. Thus, the onus is on a moving party to establish that it is 'more probable than not' that the necessary facts existed: Carney v Newton [2006] TASSC 4 at [52]. 18While it is trite law, it should be noted that essentially two elements are required for the balance of probabilities to be satisfied: a court is required not only to conclude that it is more likely than not that the version of the facts in issue existed; it is also required to conclude that the material before it is appropriate to make that finding of fact. The facts and circumstances of the case presented to the Court must provide an appropriate basis to persuade the Court that there was a reasonable likelihood of their existence. 19What this means is that a belief or disbelief in two probabilities 'exactly balanced' will not satisfy the test (Carney v Newton at [61]; Bell v Thompson (1934) 34 SR (NSW) 431). Likewise, disbelief in a moving party's version of facts does not mean that the opposing party's case has been established (Jackson v Lithgow City Council [2008] NSWCA 312 at [11] - [12]). Further, the inability of a court to make a finding either way will not discharge the burden of proof on the moving party: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at [60]. 20Section 140(2) requires the court to take into account "the gravity of the matters alleged". Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 stated: "[W]hen the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." 21In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; (1992) 110 ALR 449, Mason CJ, Brennan, Deane and Gaudron JJ suggested that the strength of the evidence necessary to establish a fact, on the balance of probabilities, may vary depending on what is sought to be proved. However that variability does not go to the standard of proof, rather it reflects conventional perceptions of the gravity of the allegations and the requisite conduct involved. 22The Court of Appeal in Morley v Australian Securities & Investments Commission [2010] NSWCA 331 discussed the applicability of the Briginshaw principles in civil penalty proceedings and also considered "the gravity of the consequences" in relation to the standard of proof required where there is an issue as to an exercise of the court's jurisdiction to make an order sought. Although civil penalties are not at issue in this matter, the findings this Court is required to make may require some discreet evaluation with grave consequences, depending on the ultimate conclusion, for the defendant possibly beyond the confines of this matter and important consequences for the plaintiff. Therefore the Court of Appeal's analysis of the considerations required under s 140(2) of the Evidence Act are helpful: "[737] It is pertinent to note that, while s 140(2) requires these three matters to be taken into account, it permits other matters relevant to the formulation of the state of satisfaction to be taken into account. ... [738] Dixon J's focus of attention in Briginshaw v Briginshaw was upon observations in certain authoritative legal texts which, with respect to the civil standard of proof, acknowledged that "the degree of satisfaction demanded may depend ... on the nature of the issue" (at 361). ... [739] Although it has not been cited frequently in subsequent authority, no doubt because of the exceptional respect with which Dixon J is treated, the equivalent reasoning of Rich J in Briginshaw v Briginshaw at 350 is also worthy of note- 'In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.' ... [741] In the present case, the allegation is essentially negligence with respect to the issue of a news release. In the ordinary case ... conduct of the nature alleged would not necessarily attract the "conventional perception" referred to in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd. [742] However, the allegation of negligent conduct is the foundation for declarations of contravention and the imposition of penalties and orders for disqualification. This falls within what Dixon J referred to in Briginshaw v Briginshaw as the "gravity of the consequences". We do not think that this means only the gravity of consequences that would have been understood as possible or likely to flow at the time that the conduct occurred, rather than at the time of trial. In our opinion the "gravity of the consequences" can be assessed at the time of trial, for two reasons. First, the kinds of orders a court may make in the proceedings falls naturally within s 140(2)(a) of the Evidence Act which refers to "the nature of the cause of action" as a matter that the court is obliged to take into account. Secondly, there is authority in Australia which supports that conclusion. [743] In R v Jenkins; Ex parte Morrison (1949) VLR 277 the Full Court of the Supreme Court of Victoria was concerned with a dispute as to the paternity of a child by reason of an alleged mix-up at the hospital. In the context of a statutory scheme which required the welfare of the child to be the paramount consideration, the court refused to order a change of custody. The principal judgment was given by Fullagar J, who expressly referred at 304 to the observations in Briginshaw v Briginshaw with respect, and only with respect, to "the gravity of the consequences", in the context of addressing the issue of the exercise of the discretion of the court to make the order sought. This was equivalent to the decision in the present case to impose a penalty or make a disqualification order. Fullagar J said (at 304-305) - The situation is not properly met by saying merely that a high standard of proof is required. It is no mere matter of finding a fact on adequate evidence. It is a matter of discretion, and therefore potentially taking risks, and there is one central fact, the parentage of Nola, with regard to which no risk - not even the slightest - should be taken ... If there is even the slightest room for doubt, no order, in my opinion, ought to be made. [744] On appeal, as Morrison v Jenkins (1949) 80 CLR 626, two members of the majority in the High Court expressly adopted Fullagar J's reasons. ... Webb J, although not in terms adopting Fullagar J's reasons, referred to submissions to the effect that a higher standard was appropriate and said (at 654) that "[t]he court cannot change the standard of proof, but it can and should insist on exact or cogent proofs on issues of grave importance like that of parentage." ... [746] We note that in Re Doherty (Secretary of State for Northern Ireland Intervening) [2008] UKHL 33 ; (2008) 1 WLR 1499 the House of Lords applied to both seriousness of the allegation and seriousness of the consequences the approach that, the more serious they were, the stronger should be the evidence before it was concluded that the allegation was established on the balance of probabilities. Lord Carswell gave an example at [28]: "If it is alleged that a bank manager has committed a minor peculation that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing". ... [748] Just before the frequently cited passage, Dixon J said that "[w]hen the law requires the proof of any fact, the tribunal must feel actual persuasion of its occurrence or existence before it can be found". ... [750] References in the authorities to "actual persuasion" should be understood as equivalent to the state of "satisfaction", as that word is used in s 140. It should not be understood as requiring a subjective "belief". ... "persuasion" is not equivalent to "belief". It was deployed by Dixon J as equivalent to "satisfaction", and in the latter form has been given statutory effect. ... [753] In order to be satisfied on the balance of probabilities, within the meaning of s 140, the tribunal of fact must reach an affirmative conclusion, or a definite conclusion, or an actual persuasion. This state of mind turns on the cogency of the evidence adduced before it. ... In Whitlam v Australian Securities and Investments Commission it was said that, absent diligence in calling available evidence, a court is left to rely on uncertain inferences. The case of the party in default suffers in its cogency, and it is made more difficult for the tribunal of fact to reach an affirmative conclusion, a definite conclusion or an actual persuasion: the more so if the Briginshaw principles involving the gravity of the consequences apply. In our opinion, that is the consequence of the breach of the obligation of fairness. [754] This is not a novel stance. In Ho v Powell Hodgson JA, with whom Beazley JA agreed, said at [14] that "in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision", and his Honour referred at [15] to the importance of having regard to "the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so" ..." 23In Asim v Penrose [2010] NSWCA 366, the Court of Appeal reiterated the principles exposed by Ipp JA in Palmer v Dolman [2005] NSWCA 361, stating at [142]: "35 The relevant principle in regard to civil cases was expressed by the High Court in the case of Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in a passage that has been repeated many times. The passage is: Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ... 36 This statement in Bradshaw was adopted in Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 480 to 481; Jones v Dunkel (1959) 101 CLR 298 at 304; and Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 and 168. 37 In Chamberlain vR (No 2) (1984) 153 CLR 521 Gibbs CJ and Mason J said at 536: When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged ... 38 In Doney v R (1990) 171 CLR 207 Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 211 that when a lesser standard of proof than beyond reasonable doubt will suffice, 'the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved. 39 On these authorities, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. ... 40 The standard of proof to be applied, together with a non-exhaustive list of "matters" to be taken into account, are now to be found in s 140 of the Evidence Act 1995 (NSW): ... 41 Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent: (a)The jury must consider "the weight which is to be given to the united force of all the circumstances put together" ... (b)The onus of proof is only to be applied at the final stage of the reasoning process: "[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case" ... (c)The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (d)Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw. 42 Mr Harrison placed considerable reliance on the approach expressed in Briginshaw v Briginshaw (1938) 60 CLR 336. Although Briginshaw has been quoted so many times, it is helpful to repeat Sir Owen Dixon's statement at 361 to 362: ... [extracted above] 43 The question arises as to the authoritative weight that, today, attaches to the observation that, where a serious allegation is made, "reasonable satisfaction" should not be produced by "inexact proofs, indefinite testimony, or indirect inferences". ... 45 It is worth repeating, I think, that in Chamberlain vR (No 2) at 536 Gibbs CJ and Mason J said that in a civil case 'the circumstances must raise a more probable inference in favour of what is alleged. ... 47 The more recent authorities to which I have referred, and s 140 of the Evidence Act (1995) (NSW) make it plain that there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities." (Emphases added) [143] Accepting, as did the primary judge, that the inquiry is as Ipp JA stated at [47] of his judgment in Palmer, nevertheless that part of the judgment in Neat Holdings recorded at [46] of Palmer and which I have emphasised, needs to be considered in conjunction with the passage from Bradshaw v McEwans Pty Ltd extracted by Ipp JA at [35] of Palmer. In particular, I would in a case such as the present emphasise the following passage from the joint judgment of Dixon, Fullagar and Kitto JJ in Luxton v Vines at 358: In questions of this sort, where direct proof is not available [the evidence being only circumstantial], it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture. This test has been repeatedly adopted in this court as well as in the High Court in cases too numerous to cite."

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