Heimler v. Calvert Caterers Ltd. (1974), 4 O.R. (2d) 667 (H.C.J.), affirmed (1975), 8 O.R. (2d) 1 (C.A.)

The plaintiff contracted typhoid fever a week after eating food that he had consumed as a guest attending a wedding reception catered by the defendant. The source of the disease was a typhus-carrying employee of the defendant. The disease was transmitted to the food when the carrier failed to wash her hands after using the bathroom. In finding for the plaintiff, the trial judge made the following statements:

Is the defendant guilty of negligence? Generally, the law of negligence requires a restaurant operator to exercise a care proportionate to the serious consequences which may result from a lack of care. He is necessarily bound to ensure that the food prepared and served by him is fit for human consumption and may be eaten without causing sickness or endangering life by reason of its condition. The standard of care is to use the same degree of care in the preparation of food as would be exercised by a reasonably prudent person skilled in the art of preparing food. It has also been said that the standard of care would be the same as a person would use in preparing his own food ... A reasonably prudent restaurateur or caterer ought to anticipate the presence of foreign and potentially dangerous substances in his food ... The patron of a restaurant has the right to expect that all reasonable health precautionary measures are carried out and that the food served to him will be of high quality, well prepared, and free from any contaminating germs.

Questions (research and explain each answer):

1.What does the term 'Burden of Proof' mean and who is responsible for providing it in this case?

2.How did this restaurant breach its duty of care?

3.Does 'Res Ipsa Loquitur' apply in this case? Why or why not?

4.Was the defendant negligent and liable for damages to the plaintiff?

5.Should 'Absolute Liability' be applied in this case? If so, why?