FOOD LAW CASE UPDATE:
ALLERGEN MANAGEMENT
Mohammed Abdul Kuddus v The Queen
[2019]
Background
Mr Kuddus was the sole
director and owner of RS Takeaway Limited, a company that traded in
Oswaldtwistle, Lancashire and was known as “Royal
Spice”. He had bought the business
in November 2015, from Harun Rashid, who in turn had owned it since December
2014.
As at 30 December 2016,
Messrs Kuddus and Rashid worked at Royal Spice together. Mr Kuddus was the Head Chef, whilst Mr
Rashid’s role was unclear in that there was a dispute as to whether he was the
restaurant manager or a delivery driver.
Facts
On 30 December 2016, two
teenage friends Megan Lee and Katie Bracegirdle, ordered a takeaway from the
Royal Spice. Their order was placed
through the third party website, Just Eat.
That order included a Peshwari naan, an onion bhaji and a Seekh kebab.
The Just Eat platform
invited customers to leave a note for their chosen restaurant. In this case, Katie Bracegirdle entered “nuts, prawns”. This was done on behalf of Megan Lee, who had
what she thought was a mild allergy to a number of foods including peanuts.
The website would then have
presented a further link, which said “do
you have an allergy or other dietary requirements?”. Clicking on this link would have provided
further dietary and allergy advice and presented the customer with three
options, the first of which was “we
strongly advise you to contact the restaurant directly before you place the
order”. It is not known whether
Katie and Megan clicked on this link but no direct contact with Royal Spice was
made.
Royal Spice received a
print out of the order at its Just Eat terminal. The order, including the note about nuts and
prawns, was seen by Mr Rashid. There was
no evidence that Mr Kuddus who was working in the kitchen, ever saw it.
The food delivered to Katie
and Megan contained peanut protein despite the comment entered at the point of
order. Upon eating the kebab, Megan
suffered an allergic reaction that was initially mild. She took an antihistamine and, having begun
to feel better, continued to eat the meal albeit avoiding the kebab.
For a while Megan suffered
no further reaction and did not appear to be in any discomfort when collected
from Katie’s house by her Mother.
However, shortly afterwards, she became distressed, more severe allergic
symptoms became apparent and she was struggling to breathe. An ambulance was summonsed but despite the
best efforts of her Mother and the medical professionals, Megan suffered
irreversible brain damage and her life support was withdrawn a few days
later. The Post Mortem concluded that
the cause of death was a fatal asthma attack precipitated by an allergic
reaction to nuts.
Megan’s allergy
Megan was generally healthy
but suffered with asthma, which was described as “quite bad”. She had been
aware of her nut allergy for several years but having undergone testing and on
medical advice had thought it to be mild.
A doctor had advised she take antihistamines but she had never been
prescribed an EpiPen nor had she been referred to a specialist. She had never had a severe reaction before
and there was nothing in her medical history to suggest the advice given on
allergy management was wrong. Both she
and her parents understood her allergies to be mild and had never been aware
that they might lead to her death.
In evidence at the trial,
an expert witness confirmed that the tests Megan had undergone would not
actually diagnose allergies and laid bare the uncertainties that surround this
area of medical practice. In particular,
doctors still do not fully understand how the test results relate to the
severity of any likely reaction. In
short, a positive test result is a warning but it is difficult to predict how
each individual patient will react when presented with the problem allergen.
When ordering the takeaway
in December 2016, Katie Bracegirdle gave evidence that Megan had not initially
wanted to add any notes to the Royal Spice.
Katie gave evidence that Megan said, “it
doesn’t matter, it’s not a big deal, I don’t have an issue”. When pressed by Katie to enter a note on the
Just Eat system, Megan suggested adding “nuts
and prawns”, which her friend did.
Food safety management at the Royal Spice
The evidence showed that no
Hazard Analysis and Critical Control Point (HACCP) procedures were in place or implemented at the Royal
Spice. Whilst the restaurant had
implemented the “Safe Food, Better
Business” system, it had not done so fully.
There were no written procedures for allergen management and staff had a
limited understanding of the issue.
There appeared to be no understanding of the risks presented by
cross-contamination or by allergen warnings on pre-packaged ingredients.
The Local Authority had
previously written to all food businesses in the area advising of approaching
changes in the law and giving advice as to the need to communicate the presence
of allergens within dishes to customers.
Despite this the Royal Spice menu contained no information regarding
ingredients, simply stating “think
allergy” and “please ask a member of
staff”.
The criminal case
Following an extensive
investigation by the Police and Hyndburn Borough Council, charges were laid
against Royal Spice, Harun Rashid and Mohammed Abdul Kuddus:-
- Royal
Spice, Mr Rashid and Mr Kuddus were charged with breaches of the Health and
Safety at Work etc. Act 1974 and under the Food Safety and Hygiene (England)
Regulations 2013 (the Regulatory
Offences); and
- Messrs
Rashid and Kuddus were alleged to have committed gross negligence manslaughter.
Royal Spice and Mr Kuddus
pleaded guilty to the Regulatory Offences before trial, whilst the jury
convicted Mr Rashid in respect of those matters. Both men were convicted of manslaughter by a
jury at Manchester Crown Court and both received custodial sentences in relation
to their manslaughter convictions but also in respect of their part in the
Regulatory Offences. The Royal Spice was fined £550, which probably reflected
an inability to pay a higher financial penalty.
The appeal
Mr Kuddus launched an
appeal against his manslaughter conviction and sentence. He said that he had never seen the “nuts and prawns” note attached to the
order and that whilst he accepted he was ultimately responsible for ensuring
that the Royal Spice operated in accordance with food safety legislation, this
was not sufficient for a manslaughter conviction.
Gross negligence
manslaughter is committed when an individual negligently breaches an existing
duty of care in circumstances in which it was reasonably foreseeable that the
act or omission would give rise to a
serious and obvious risk of death.
The breach must cause the death and must be “truly exceptionally bad and so reprehensible” that it justifies
the conclusion of gross negligence
and the resulting criminal sanctions.
Counsel for Mr Kuddus
argued that whilst his client was responsible for food safety management at the
Royal Spice, inadequacies in that regard were not enough to convict him of the
more serious manslaughter offence.
Whilst limited companies such as Royal Spice are often considered to
have imputed knowledge in respect of regulatory matters, it would be wrong to
approach a manslaughter case against an individual in this way.
The Court of Appeal agreed,
noting that “the fact [Mr Kuddus] was the
sole director of [Royal Spice] placed on him the duty of ensuring that
appropriate systems were in place to avoid the risk that a customer with a
declared allergy was not served food which contained the allergen”. The risk was that a customer would place and
be served an order, which the system should have been designed to prevent. This is not the same as there being an
obvious and serious risk of death.
There was no evidence Mr
Kuddus had seen the note about nuts and prawns and so could not have foreseen
an obvious and serious risk of death might result from the food he
prepared. The Court of Appeal therefore
determined that the conviction for manslaughter could not stand.
Impact for the retail catering industry
In its judgment, the Court
of Appeal made a number of important points that should be considered by all
those in the sector:-
- The
breach of duty in this case was the service of food containing a specific
allergen to a customer who had flagged that allergen at the point of
ordering. Much was made of Megan’s
medical history and the apparent understanding that her allergies were “mild”.
However, the Court said that cases should be judged based on what was
known at the time of the breach. What Mr
Kuddus and his lawyers later understood about Megan’s medical history was
therefore not relevant. The duty was
owed to allergy sufferers as a class.
- A
possibility that a set of circumstances may
be life threatening is not the same as an obvious risk of death. An obvious risk is a clear and present
danger, which is unambiguous. The Court
concluded that Mr Kuddus could not have foreseen such a risk in this case as he
had not seen the note.
- The
requirements of general food law are material to the steps that a restaurant or
other food service provider could be expected to take in a given
situation. However, that alone does not
define the duty owed to each individual customer. That is determined by the circumstances of
each case.
- In
relation to allergens that might harm particular groups of customers, the scope
of the duty “may well extend to
identifying by warning in a menu or otherwise the presence of such allergens in
food, with the request that notice be given to the restaurant if, in a
particular case, such an allergen is likely to cause harm”.
- Whether
a business chooses to issue such a warning or not, if a customer tells a
restaurant about a harmful allergy, the scope of the duty may extend to
operating a system either to ensure that the identified allergens are not
provided or to warning the customer that food meeting their requirements cannot
be provided.
- Importantly,
if the customer does not alert the business to the harmful allergy, it is
difficult to see how the duty could be extended to require the exclusion of all
potential allergens in the food provided.
- Whilst
Mr Kuddus was acquitted of manslaughter, his convictions for the Regulatory
Offences remained. The Court was very
clear that the manslaughter acquittal did not mean that restauranteurs could
ignore their responsibilities simply by ensuring that they were not armed with
information regarding individual orders or customers with specific
allergies. Unless there is a system in
place, criminal convictions for regulatory offences can and will result.
- Equally,
the acquittal does not mean that individuals cannot be convicted for a failure
to introduce proper systems that protect customers. Mr Kuddus’ lack of knowledge in this
particular case cannot be used by those managing food service businesses to
avoid liability at the expense of customer facing employees.
The Court concluded by
noting the increased awareness around the potential risks to allergy sufferers
in the context of food service, saying, “it
should be understood that the courts will rigorously scrutinise the way in
which restaurants discharge the duty of care that they owe to such customers”.
Comment
This case is just the
latest in a line of sobering reminders of the importance of effectively
implemented controls for allergen management.
As we continue to learn more about the impact of such conditions,
regulatory scrutiny in this area will only increase. And whilst the Court was sympathetic to the
limits of Mr Kuddus as an individual given the particular facts of this case,
the judgment makes it clear that the manner in which food businesses manage
safety and hygiene will be closely scrutinised and that significant criminal
penalties can and will follow where regulatory failings are exposed.
The expert evidence at the
trial showed that teenagers and young adults predominate in studies of fatal allergic
reactions. The majority of severe
non-fatal allergic reactions also occur in this age group, perhaps because they
are young people transitioning to independent living and learning to manage
allergies without parental oversight.
Megan Lee was just 15 years old when she died. If your business typically targets or serves
people within this demographic, additional controls may be required.
Businesses
in the food service sector should regularly review their allergen management strategy
to ensure it remains current, both in respect of the organisation itself and
current guidance. Regular refresher
training for customer facing employees is vital as is ongoing due diligence in
respect of the supply chain. Remaining abreast of changes in the law and
available guidance is also key.
