Sperm was found in a bottle of water.
A Perth woman who drank bottled water containing semen is suing the deli owner who sold the water and whose DNA matched the sperm.
Almost three years to the day since the water was purchased, consumed then tested, Alicia Cooper filed a writ of summons in the District Court of Western Australia against then deli owner Dahn Le and the business he operated at the time.
Mr Le has since sold the business and it is under new ownership.
The writ states Mr Le knowingly placed the sperm in the bottled water, knew the water was contaminated with sperm, had sold or allowed the sale of the water and failed to warn the public that sperm was in the water.
"Instantly I knew something was not right, I just knew," Mrs Cooper told Fairfax Media.
"I thought 'oh my gosh, there's something wrong with my water'."
In the writ the business is alleged to have failed to provide safe systems of inspection or quality control to detect sperm in the water, failed to provide adequate supervision, induction, instruction or training and it failed to detect the sperm in the water.
Mrs Cooper is seeking damages, economic loss, medical expenses, aggravated damages and exemplary damages as a result of the injuries, symptoms and stress experienced as a result of ingesting the water.
"I can't even make decisions on what to eat. It's really affected me so much," she said.
"You don't think anything like this would happen to you? It was just so hurtful. It's been so humiliating."
As a result, Mrs Cooper said she suffers a wide range of psychological and physical conditions including anxiety, depression, shock, partial post traumatic stress disorder and adjustment disorder.
Other symptoms and disabilities include workplace anxiety, particularly with the sale of water products, pre-occupation with the safety of bottled drinks, shingles, panic attacks and social withdrawal.
The writ, filed on Mrs Cooper's behalf by Slater and Gordon, states that on December 10, 2010, her husband Travis Cooper bought a bottle of Pump water, taking it from a Coca Cola drinks cabinet at the Dianella business.
The bottle was put in the fridge at the Cooper's home until it was consumed by Mrs Cooper "on or about" December 13 when she noted it "had a bad taste and smell".
Lawyer Jacinta O'Connor said the incident had a "devastating and lasting impact" on Mrs Connor's life.
"My client has suffered significant emotional harm and financial losses which we claim are the result of this man's disturbing actions," Ms O'Connor said.
"We all place our trust in the people who serve us food and drinks, and we don't expect them to deliberately contaminate the products we buy and consume.
"This kind of thing could happen to any one of us and my client was unfortunate enough to be a victim to this alleged disgraceful conduct.
"She feels humiliated and embarrassed by the incident, and utterly let down by the very system that is put there to protect us all."
After lodging a complaint about the bad-tasting water with the City of Stirling's health department, a sample was collected for testing and the results revealed the water contained spermatozoa.
A DNA sample was taken from Mr Le and testing confirmed his sample was a DNA profile match for the sperm detected in the bottled water.
The civil action was lodged by Mrs Cooper after no criminal charges were laid against Mr Le following three years of investigating by the City of Stirling and WA Police.
A WA Police spokesperson said the matter was reported to police in February 2011.
"Investigators subsequently referred the matter to the DPP for legal advice whereby after careful consideration, the state prosecutor was of the opinion that this incident, although serious, did not constitute a criminal offence; specifically an assault whereby there must be an 'application of force' (as defined under Section 222 of the Criminal Code)."
"The WA Police ultimately referred the complainant to the Department of Health and the local council for consideration of prosecution."
City of Stirling confirmed to Fairfax Media two sample tests of the water from the bottle were carried out by council in January and April in 2011.
"On both occasions human spermatozoa was identified in the bottled water," Stirling health and compliance manager said in a statement to Fairfax Media.
"The city initiated legal action against the business proprietor for suppling food, namely bottled water, by way of sale that was not of the nature or substance demanded by the purchaser which was withdrawn due to the below reasons."
"The investigation involved both the police and the city and dealt with potential breaches under the Food Act and the Criminal Code.
"The city's concern related to the adulteration of a food product whilst the police were involved with DNA analysis of the spermatozoa. The city understands that no charges were pursued by the police under the criminal code. In respect to the charges under the Food Act the city was unable to prove the offence beyond reasonable doubt for the following reasons: unable to prove that the water was for sale, how the spermatozoa got into the bottle of water, there were inconsistencies in regard to evidence from witnesses and the statute of limitations had been exceeded."
The city stated the issue would not be investigated further and it would not pursue further action against Mr Le.
The statute of limitations for an offence under the act is 12 months.
Mrs Cooper has stated in her writ that Mr Le was negligent, breached statutory duty of care to the customer, was misleading and deceptive and caused harm and injury as a result of ingesting the contaminated water.
The writ states that Mr Le:
- Matched the DNA profile of the sperm found in the water;
- Was aware the products in the drinks fridge would be purchased and consumed but he failed to remove the water containing sperm allowing it to be consumed by a member of the public
- Placed the water with sperm in the fridge with the intention it would be purchased and consumed by a member of the public; and
- Knew or acted with reckless disregard to the consequences of his actions of placing sperm in the water and someone would suffer harm and injury.
The claim also states Mr Le contravened several sections of the Fair Trading Act and Australian Consumer Law by knowing the water contained sperm and for failing to remove the contaminated water from the fridge.
"The wanton and cruel conduct of [Mr Le] by his actions as pleaded herein, carried out with conscious wrongdoing was so reprehensible and oppressive and undertaken with malevolence, spite and/or contumelious disregard of [Mrs Cooper's] rights, injured [Mrs Cooper's] proper feelings of dignity and pride such that [Mrs Cooper] is entitled to exemplary damages for punishment of [Mr Le] and for moral retribution."
"It's been three years and I'm trying to get my life back on track," Mrs Cooper said.
"I was such a confident, young woman... life was fantastic. Now my confidence is shattered, I'm struggling and I feel ashamed."
Fairfax Media is attempting to contact Mr Le for comment.