FOOD LAW CASE UPDATE: ALLERGEN MANAGEMENT
Rhian Greaves
11/06/2019

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.

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