Bad news travels fast. Should a food poisoning claim arise, of paramount concern for restaurants, pubs or hotels will be the risk of adverse publicity. Where there is insufficient evidence to conclusively deny liability, an early resolution at a reduced financial settlement and with no formal admission of liability will often be considered a very satisfactory outcome.
Case study – limiting liability
In this case the claimant alleged that she had developed campylobacter gastroenteritis from a gastro-pub after consuming a small portion of liver.
The claimant had sent her meal back to the kitchen when she found some of the liver to be raw, along with the meals of two members of the party eating with the claimant, who had found them to be undercooked. The claimant maintained that her symptoms developed 31.5 hours after the consumption of her meal and that she had only eaten vegetarian meals prior to the episode.
Causation was raised upon careful consideration of the factual evidence. The defence pointed to the fact that the claimant’s symptoms had commenced some 31.5 hours after the meal – a period somewhat shorter than the 48-120 hour minimum incubation needed for campylobacter to develop. Although the Environmental Health Officer (EHO) in the case noted that larger doses of bacteria had been known to shorten this incubation time, it was argued in this instance that this was unlikely given the small amount of liver that would have been consumed before it was sent back. At our request, the EHO was also able to confirm that a successful inspection had taken place of the premises shortly before the incident and that there had been no other food poisoning complaints made that year.
The claimant’s account that she had only eaten vegetarian meals before the incident was also disputed. A questionnaire completed by the claimant at the time confirmed that the claimant had eaten steak, scampi and chicken two days prior to visiting the defendant’s premises and these meals that were in keeping with the 48-120 hour incubation period. Medical evidence also revealed that the claimant suffered from ehlers-danlos syndrome, a rare condition which has been known to cause abnormalities in the gastrointestinal tract.
Nevertheless the claimant was able to produce supportive medical evidence. In light of this, there were clear risks that her claim would be successful and causation made out. We also recognised the adverse publicity that would be generated if the claim had not been successfully defended. With this in mind we made a low settlement offer without any admission of liability and reinforced our causation arguments by sending detailed questions to the claimant’s medical expert looking for clarification. Upon receiving the answers to the questions, which caused further doubts over causation, the claimant decided to accept our significantly reduced offer with no admission of liability.
Dealing with a claim
Unfortunately situations like this do occur from time to time. To ensure you that you are able to take advantage of a possible defence it is important to follow best practice:
- Maintaining efficient food segregation processes, with separate refrigerators and individual work stations.
- Ensure that members of staff never work at more than one station at a time.
- Maintain records of regular checks and investigations of fridge temperature/probing checks in line with hygiene standards.
- Retain clear evidence that high risk food has been regularly probed and their readings recorded.
- Ensure that all staff undergo detailed health and safety training.
If you are faced with a formal claim, addition to ensuring you have all the regular health & safety documentation in place, we recommend that you:
- Keep any leftover food (if possible within the time span of the complaint).
- Keep a clear record of any complaints to indicate whether or not a large number of people have suffered.
- Make a note of any discussions that took place at the time of the incident.
- Ensure you have all the contact details of the staff working on the day/night in question.
- Contact your local Environmental Health Officer (EHO) for advice.
Insurance
When dealing with such a claim, it is important that you contact your insurers at your earliest convenience to ensure that cover under the insurance policy is not prejudiced. Failure to adhere to reporting requirements may lead to your insurers refusing to indemnify you in respect of the claim.
Our defendant personal injury team has significant experience of defending personal injury claims and has experience of claims of this nature. If you would like to discuss how to approach a claim you are facing, feel free to contact Paul Chadder who heads our defendant personal injury team.
Contact
Paul Chadder
01865 781006
