If I get food poisoning at a restaurant, can I claim?

Question

José Manuel Alburquerque · Accepted Answer

Yes. The restaurant is liable for the harm caused by the food it serves and, as you are a consumer, it is the restaurant that has to prove that it took all the care its business requires. What you have to prove is that the food poisoning came from that food. That depends very much on what you do in the first few hours. If the problem came from a food product that was already spoiled when the restaurant received it, you can also claim against whoever produced it. How to prove it See a doctor or go to accident and emergency as soon as the symptoms appear and explain what you ate and where. Ask for a stool test, known as a stool culture, to identify the bacterium or toxin. Keep the receipt or the invoice and, if you can, take photos of the food. Find out whether other diners fell ill. If several did, the evidence is much stronger. Ask for the official complaint form, which businesses in Catalonia are required to have. Also notify the health authority, which in Barcelona is the “Agència de Salut Pública”, the city's public health agency. Whatever its inspection finds may serve as evidence. Whom to claim against and how The restaurant and its liability insurer, against which you can claim directly. The producer of the food, if the problem originated with them. The “ley de consumidores”, Spain's consumer protection act, makes producers liable for the harm caused by defects in their products. Consumer arbitration, which resolves many disputes with businesses free of charge, is not an option here, because it does not accept disputes over food poisoning or injuries. Before suing, you must try to reach an agreement. As a consumer, it is usually enough to have first made a written claim to the restaurant and received no reply or a reply you are not satisfied with. With the insurer or the producer, with whom you had no contract, your letter should make a genuine offer to negotiate. If it happened in Catalonia, work on the basis of three years from when you suffered the harm. Against the restaurant, with which you had a contract, the time limit may be longer, but it is best not to cut it fine. Outside Catalonia, the prudent course is to claim within one year. A written claim interrupts the time limit. What you can claim You can claim for the days of illness and, if you are left with any, the after-effects, which are usually valued with the statutory compensation scale for road traffic accidents (the “baremo”) as a reference. You can also claim medical and pharmacy expenses and any loss of earnings. If the food poisoning ruined a trip or a celebration, that loss can be claimed too. Keep all the supporting documents.