Food Wastage: Good Samaritan Law

12 December 2008

By Kellie Tranter

According to Notebook Magazine Australians are “still wasting $6 billion of food each year - enough to feed the entire nation for three weeks.” 

Food wastage occurs in Australia for many reasons, but by how much could wastage be reduced if those in the New South Wales food industry, including wholesalers, distributors, retailers, restaurants, hospitals and hotels remembered the good samaritan provisions in the Civil Liability Act 2002?

Common sense often isn’t so common,  but in 2004 common sense led to NSW State Government law reform on food waste. 

Even though the reforms occurred several years ago many people may still be surprised to know that a person who donates food does not incur any civil liability in respect of any death or personal injury  (which includes pre-natal injury, impairment of a person’s physical or mental condition and disease) that results from the consumption of the food if the food donor donated the food in good faith for a charitable or benevolent purpose, with the intention that the consumer of the food would not have to pay for the food, and if the food was safe to consume at the time it left the possession or control of the food donor.

As long as the donated food is safe to consume at the time it left the possession or control of the donor, and the donor informs the recipient if food has to be handled in a particular way to stay safe to consume or if the food will only be safe to consume within a particular period of time, the Civil Liability Act makes it clear that there is no civil liability if someone has an adverse outcome from eating it.

The donor can protect itself from any residual risk by having an appropriate agreement to pass property in the food, and the risk, to the recipient at the time of collection.

An appropriate agreement would mean that the recipient has confirmed (and signed) that at the time they picked it up that the food was fit for consumption.

The recipient should also have its own insurance and the donor should ensure that they are noted as being covered in respect of donated food under that policy.

It would be prudent for the donor to ensure that staff training is carried out before any proposed donations, including but not limited to training about acceptable and prohibited food items.  

The donor (or its staff) should not advise the recipient what to do with or how to use the donated food products.

At a time when we are hearing about charity anxiety, social welfare disasters, anticipated unemployment increases and mortgage stress it is important not to be defeatist. We need to focus on what we can do right now. Not only does the redistribution of food that would otherwise be wasted benefit those in our community who are suffering and save scarce charity resources, but the International Waste Management Institute Saving Water: From Field to Fork 2008 report points out in graphic detail the enormous environmental benefits. 

So come on foodies,  flex a bit of your CSR muscle and show us this Christmas what Christmas is all about! 

The information contained herein is by way of summary only and does not purport to be legal advice.  Please contact me if any assistance is required. © Kellie Tranter Attorney 2008.