AWARE

Keoghs Insight

Author

Vickie Forsyth

Timing is everything

AWARE05/11/2018
At Your Leisure Autumn 2018

Defending a confirmed pathogen

The Claim

Having purchased and consumed a meal at our client’s restaurant, the claimant subsequently became ill with food poisoning. A stool sample confirmed she had campylobacter with the claimant alleging various breaches of the Sale of Goods Act 1979.

The Defence

Liability was denied on the basis that the food supplied was properly and safely prepared and safe for consumption. Our client was able to produce documentation in support, demonstrating good food safety practices and compliance with HCCAP.

The main crux of the defence was around the incubation period for campylobacter. The claimant stated that she had become ill within two hours of consuming the meal, with the onset of symptoms including vomiting and diarrhoea. Whilst most campylobacter infections in humans originate from consumption of contaminated foodstuffs, the typicalincubation period (between ingestion of the contaminated foodstuffs and the first onset of symptoms) is between 24-72 hours, the latter being most common.

The claimant’s onset of symptoms in just two hours meant she must have contracted the bacteria prior to visiting the restaurant. In addition, others would most certainly have experienced illness due to the way in which the food in question was supplied and prepared. Yet nothing was reported over the same period.

In terms of the medical evidence and given this was a fast track matter, the only evidence before the judge was that of the GP. Robust Part 35 questions were put to the expert and the responses contradicted
the initial report, supporting the defence.

Judgment

In delivering his judgment, the judge stated that he had been impressed by our client’s policies and procedures, with clear evidence that HACCP was in place and being adhered to.

In addition, he was not satisfied that the claimant had proved her case, with the incubation period falling outside of what was needed to establish liability. The claim was therefore dismissed.

Lesson

Claims with confirmed pathogens, such as campylobacter can be defended. This is not strict liability. However, it is imperative that businesses working with food in the leisure and hospitality sector have in place, and can evidence compliance with, a HACCP plan.

 

For more information, please contact Vickie Forsyth