Nut allergy conviction quashed
Posted: 21st May 2019
In what circumstances should company directors be held criminally responsible for the gross negligence of their subordinates? That was the burning issue addressed by the Court of Appeal in a case concerning a 15-year-old girl who suffered a fatal allergic reaction to a kebab ordered from a takeaway restaurant.
When ordering the meal through a website, the girl declared that she had an allergy to peanuts. The kebab with which she was supplied, however, contained peanut protein. Following her death, the restaurant’s sole director and owner pleaded guilty to a number of offences contrary to health and safety and food hygiene legislation. He denied gross negligence manslaughter but was convicted of that offence and received a two-year prison sentence.
In ruling on his appeal against conviction, the Court rejected arguments that the prosecution was required to establish that there was a serious and obvious risk of death to the girl, taking into account her particular characteristics. Such an approach would be over-personalised and the correct test was whether there had been a failure to take reasonable steps not to injure members of the class of nut allergy sufferers.
In upholding the appeal and quashing the conviction, however, the Court noted that, although the restaurant’s manager had been informed of the girl’s allergy by the website, there was no evidence that that information had been passed on to the director, who worked in the kitchen. Speaking little English, he had only recently taken over the business from the manager and the prosecution case was based solely on an allegation that he had failed to introduce appropriate systems to ensure that customers’ declared allergies were acted upon.
The Court emphasised that its ruling did not mean that restaurant owners could always escape criminal liability in such cases merely on the basis that they had no awareness of specific food orders or customers’ allergy requirements. Such ignorance could not be used unjustifiably to relieve those in charge of restaurants or other businesses from liability at the expense of those on the front line.