Inquest’s finding likely to lead to increased claims

28 Sep 2018

In 2016, 15-year-old Natasha Ednan-Laperouse died following an anaphylactic reaction, having eaten a sandwich bought from Pret A Manger containing sesame seed. Ms Ednan-Laperouse had a severe allergy to sesame and as the sandwich did not list the ingredient, the young woman believed the sandwich to be free of it. She suffered the reaction shortly after eating the sandwich while travelling on a flight to France with her father.

The Coroner, Dr Sean Cummings, found today at the inquest into Ms Ednan-Laperouse's death that Pret A Manger failed to include adequate allergy information on their food labelling.  He set out in his findings: “I was left with the impression that Pret had not addressed the fact that monitoring food allergy in a business selling more than 200 million items a year was something to be taken very seriously indeed”. 

This finding raises a number of important legal issues.  Firstly, it creates a serious question surrounding the adequacy of the Food Information Regulations 2014, which do not require food business operators to include, on packaging, the particulars of certain substances or products causing allergies or intolerances, as they may give that information orally (i.e. by asking a member of staff) or by any means they choose, such as signage on the premises, or as in the case of Pret A Manger a booklet behind the counter. To further compound the difficulty consumers face, businesses are not required under the 2014 Regulations to individually label ‘freshly handmade, non pre-packaged food’. The Coroner has indicated his intention to write to the government on the inadequacy of the Food Information Regulations 2014. During the inquest, Dr Cummings said that Pret A Manger were taking advantage of regulations which were intended to ‘deal with small independent premises that perhaps prepare food on site and put it into a bag for customers coming in’: he went on “It seems on the face of it a bit strange that a local sandwich shop can benefit from that regulation ... but that an organisation that sold ... 218 million items (a year) could also benefit from that regulation ... A cynic might think it was almost a device to get around regulation relating to information on food allergens.”

Pret A Manger’s position at the inquest was that they posted signs on fridges and at the counters of their stores, informing consumers with allergies to speak to a manager for advice or to ask to see its allergen guide. It seems that despite the criticisms of the coroner, Pret A Manger are not in breach of their obligations under the 2014 Regulations, although this may not save the 500-strong chain of coffee and sandwich shops from a finding of negligence.  Pret A Manger may be in breach of its duty under section 3 of the Health and Safety at Work Act 1974, which places general duties on employers and the self-employed to ensure, so far as is reasonably practicable, that persons other than themselves or their employees not be exposed to risks to their health or safety. The CPS may also explore the possibility of a corporate manslaughter charge given a breach of health a safety duties need not be the sole cause of death.

Notwithstanding the wording of the 2014 Regulations, a young woman has died from eating an allergen that could have been avoided. This is certainly a matter of public interest and a prosecution and large fine would be a huge incentive for other companies to ensure they treat allergen information seriously.

Pret A Manger has faced six such cases in the past year and Ms Ednan-Laperouse's death is bound to be a catalyst for greater awareness of the risks and almost inevitably claims against food business operators. Given the shift by claimant solicitors to pursue the growing numbers of claims for food poisoning and holiday sickness (which this year became subject to fixed costs due to the enormous number of claims), it is foreseeable that claimant firms will begin picking up cases for injury from consuming allergens.

The current figure for hospital admissions for food allergies is approximately 4500 per year. If these cases begin to result in claims, which is quite possible given the food poisoning claims boom since 2013, this is likely to represent a large area financial risk for those insuring eat in and takeaway restaurants and other food providers.

What this means for you

Whether or not the government acts to amend the law in this area, it is clear that the food industry must react to avoid what is clearly a growing risk.

Insurers and claims managers for restaurants and food chains may wish to revisit with their policyholders the policies they employ when listing allergens and the seriousness with which they treat food ingredients. 

The BLM guide on food poisoning available here provides helpful information as regards food poisoning and allergen claims and duties on those producing food.

If you have any questions on this or any related matter feel free to contact BLM.

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

Related contacts


Simon Morrow

Simon Morrow

Partner,
Manchester


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