Food poisoning claims
The problem
After recently opening a restaurant you receive a letter from a customer seeking compensation for food poisoning he claims to have suffered after eating your food.
The Law
If a customer has suffered food poisoning from eating a meal in the restaurant, he may be able to bring a claim for damages against you for any injury suffered and loss caused. But for such a claim to be successful, the customer must be able to demonstrate that he suffered food poisoning caused by the meal eaten, a very difficult hurdle to overcome.
In addition, the Food Safety Act 1990 governs this situation from a criminal and regulatory perspective. The act sets out basic standards with which all food must comply. The act is backed up by a number of regulations which contain much more prescriptive requirements. Breaches of the act or the regulations could lead to a criminal prosecution being brought by the local authority or to other enforcement action being taken. Offences under the Food Safety Act are subject to a due diligence defence, ie, that all reasonable steps had been taken to avoid the offence being committed.
Expert advice
You should treat the allegations seriously and carry out an investigation into the incident. You should also ask the customer to provide you with a copy of a doctor's report confirming the symptoms and indicate to him that an investigation is being carried out into the matter.
The investigation should consider whether any other complaints were received either generally or specifically in relation to the dishes that the customer ate. All kitchen records should be checked to ensure that food has been stored, handled and cooked properly.
Once the investigation has been carried out the customer should be advised of the findings and, if there's no evidence to support the allegations, liability should be denied. Sometimes commercially, however, it may also be appropriate to offer a free meal as a goodwill gesture.
If the complaint is justified then legal advice should be sought regarding the appropriate level of compensation. It may be possible to recover compensation from suppliers.
The Food Standards Agency states that at least half of all alleged food poisoning incidents aren't related to food but to some other cause. So unless an investigation indicates otherwise, it's unlikely that the customer's symptoms resulted from eating at your restaurant.
If the customer contacts the local authority then an environmental health officer may investigate the matter. This would involve a visit to the premises to look at the systems, procedures and training in place. Unless the customer kept a sample of the food, or there are lots of complaints with confirmed symptoms, it will be hard for the EHO to take any formal action. If an EHO becomes involved, professional advice should be sought.
Beware!
Customers may seek to publicise such incidents through the media, so it's important that all complaints are investigated and dealt with in a prompt and thorough way. You should have a procedure for responding to the media to protect the reputation of the business when allegations are made.
Members of staff who initially deal with complaints may try to be helpful and sympathetic to customers to resolve the complaint, but care needs to be taken to ensure that liability is not admitted before an investigation is carried out.
If an EHO visits the premises as a result of a complaint and wishes to interview members of staff, seek legal advice immediately.
Check List
- Ensure you have a documented HACCP system.
- Kitchen staff should be fully trained and hold appropriate food hygiene qualifications.
- Food and equipment suppliers should be audited.
- Keep temperature control records for storage, cooking and service of foods.
- Implement an audit system in respect of food safety, using consultants if necessary.
- Document everything you do and keep records.
Contacts
Jeremy Bark
Tel: 020 7760 1000
jeremy.bark@blplaw.com
www.foodstandardsagency.gov.uk
