Anaphylaxis and the Law

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Contributing Authors: Marilene Antoni and Sarah Lucy Cooper (Thomas More Chambers) 

Correct as at October 2010

Fate has a curious way of bringing people together and for once anaphylaxis has been a positive force when it cemented the professional relationship between us – Marilene, a solicitor who is anaphylactic to foods which include lentils, peas, soya and peanuts and Sarah, a barrister whose son is anaphylactic to various things including eggs, dairy, soya, lentils, peas, nuts, sesame, celery and mustard. Both of us are experienced in personal injury litigation and have some criminal experience as well, so we well understand the legal side and the practical side of bringing a case on the basis of an allergic reaction.

Below we have tried to set out some helpful hints in relation to the law and anaphylaxis if you have a reaction which you believe someone else is responsible for. We should make it clear that we are only qualified in English and Welsh law and so this article does not cover Scotland and Northern Ireland although we understand they have similar legislation.

Proof

The most important issue for any type of proceedings is proof.

Firstly, proof of what was requested – was this in the form of a contract for catering for a wedding [Bhamra v Dubb 2010 EWCA Civ 13] or a barmitzvah [see Spencer v Page – Kemp & Kemp M1-057]. Obviously it is always easier if it is in writing – so please do try and keep as much in writing as possible. Was a written list given to the restaurant of food items to avoid? If not, do you have a witness who overheard the conversation when the request was made?

Make sure you take a contemporaneous signed statement from any witness.

Secondly, proof is needed that it was indeed a particular food that caused the reaction. A suggestion is to carry a small plastic bag with you in order to retain a sample of the foodstuff in case of reaction. The simplest way to have such a sample tested is to contact the local authority where the restaurant is located and find out whether Trading Standards or Environmental Health deals with criminal prosecutions of such cases. Section 28 of the Food Safety Act 1990 appoints specific people as “Public Analysts” ie accredited analysts who must be used by the authorities. Trading Standards or Environmental Health will then send the sample to the Public Analyst and the sample will effectively have been tested at no cost. It is, however, possible to pay for testing if for some reason the local authority are not involved [for example there is no prosecution being considered].

It is worth bearing in mind that the Food Safety Act 1990 also provides extensive powers to authorised officers [ie Trading Standards of Environmental Health Officers] to purchase and take samples of food and also gives them powers of entry to premises. When criminal proceedings are being brought in tandem or prior to civil proceedings, much more can therefore be done to collect evidence.

Thirdly, if possible, confirmation that the allergen caused the reaction should be sought. The Resuscitation Council UK which has published guidelines on dealing with anaphylaxis http://www.resus.org.uk/pages/reaction.pdf suggests at page 27 that blood samples are taken between 30 minutes and 2 hours after the reaction has commenced in order to measure the level of mast cell tryptase which confirms that there has indeed been an anaphylactic reaction. Obviously the taking of such a blood sample should not delay any initial treatment.

CIVIL CLAIMS

The claim would be for negligence or for breach of contract. Difficult legal issues can arise in relation to scenarios where a different person pays for the food to the person who suffers the reaction.

In terms of timing, please remember that for adults proceedings must be issued within 3 years and for children by the age of 21.

Compensation

The compensation for a one off anaphylactic reaction is likely to be low – in the case of Spencer v Page [Kemp M1-057] in which Sarah represented a child who had a reaction to peanuts, he received £1,000 for the reaction itself where he was admitted to hospital overnight and then discharged.

It is possible that there may be other losses such as loss of enjoyment of a particular contract, but this may be difficult to establish and specialist advice is needed. In cases where other people have been invited to a social gathering which is then ruined when one of the guests is hospitalised, it is always very difficult to claim for everyone’s loss of enjoyment.

In the case of a fatality, such as in the Bhamra case where Mr Bhamra died after eating eggs at a Sikh wedding, the compensation to his widow was £450,000. However, this did not represent the physical effects of the reaction itself, but rather the economic losses from the fact that Mrs Bhamra could not rely on her late husband’s income.

Claims have also been brought where a person has developed an allergy – see for example the case of Foxton v Wakefield West Primary Care NHS Trust [Kemp L20-003] where Ms Foxton developed an allergy to latex due to her employer’s negligence as a result of which she could no longer work as no suitable workplace could be found for her. Obviously the compensation was therefore substantial but was in relation to her loss of earnings, not the allergic reaction itself.

Contributory Negligence

Most people who know what their allergy is have been professionally diagnosed and prescribed adrenalin and perhaps other medications as well. If you do not carry your medication with you, it is arguable that you are contributory negligent and so any compensation would be reduced – perhaps be as much as 100% – so please do carry your medication at all times

CRIMINAL LAW

Individuals and businesses can be prosecuted in relation to their management of food allergy risks. The most important legislation is set out below:

1. Food Safety Act 1990

The Food Safety Act 1990 provides the framework for all food legislation in Great Britain.

Under this Act the main offences are:

Section 7 – makes it an offence to make food injurious to health by:
• adding an article or substance to the food
• using an article or substance as an ingredient in its preparation
• taking away any constituent from it
• subjecting to it any other process or treatment

Section 14 – makes it an offence for anyone to sell to a purchaser’s prejudice, any food which is not of the nature, substance or quality demanded by the purchaser. A ‘purchaser’ of food can range from a customer at a shop, to one company buying from another.

Section 15 – makes it an offence for anyone who labels or advertises food in a way that falsely describes it, or labels, advertises or presents food in a way which misleads as to its nature, substance or quality. The offence can occur when statements are untrue or pictures of food are presented in a misleading way.

An offence under the Food Safety Act 1990 can be dealt with in the Magistrates Court or the Crown Court and is punishable by a fine of up to £20,000 and 2 years prison.
Unusually there is a time limit of 1 year on bringing a prosecution [section 34 FSA].

A recent case at Chesterfield Magistrates Court involved a Chinese restaurant which pleaded guilty to a section 14 FSA offence of supplying unsafe food after failing to declare the presence of peanuts in spare ribs when they had been specifically requested not to supply a meal with peanuts. A fine of £2,660 was imposed with £1,000 legal costs, £15 victim surcharge and £200 compensation to the allergic customer. Many readers may consider this an insult to the victim given what could have been the consequences.

2. EC Regulation 178/2002 (General Food Law Regulation)

The General Food Law Regulation also sets out further possible offences:

Article 14 – prohibits unsafe food from being placed on the market. Food is deemed to be unsafe if it is considered to be injurious to health or unfit for human consumption. This Article contains provisions for determining whether food falls within this prohibition.

Article 16 – requires that labelling, advertising and presentation of food, including the information available, should not mislead purchasers.

The EC General Food Regulations 3279/2004 sets out the penalties for breach of the above articles which are the same as under the Food Safety Act 1990.

3. The Food Labelling (Declaration of Allergens) Regulations 1996 [No.1499] and amendments

The Food Labelling (Declaration of Allergens) Regulations 1996 provide further offences. These have been amended various times, most importantly by the 2008 Regulations [SI 2008/1188]. The Regulations ensure that consumers have clear information about allergens in food so that they can make fully informed choices.

Essentially the Regulations require labels for all pre-packed food, including alcoholic drinks, to show the consumer whether the product contains ingredients from a list of 14 potentially allergenic foods or any products derived therefrom.

The 2008 Regulations set out a list of 14 allergenic foods / products derived therefrom which must be shown in ingredients:

  1. Cereals containing gluten
  2. Crustaceans
  3. Eggs
  4. Fish
  5. Peanuts
  6. Soybeans
  7. Milk / lactose
  8. Nuts
  9. Celery
  10. Mustard
  11. Sesame seeds
  12. Sulphur dioxide and sulphites at concentrations of more than 10 mg/kg or 10 mg/litre expressed as SO2
  13. Lupin
  14. Molluscs

Under the Regulations all mandatory labelling information must appear on either the outermost packaging, a label attached to the outermost packaging, or be clearly visible through the outer packaging. A failure to label a product correctly would cause severe disruption to the producer. The Food Standards Agency would issue a food alert for information, and the producer would need to carry out a full product recall, which could include national press advertising and issuing a trade statement to its consumers. Given that the Foods Standards Agency is about to be abolished, it is unclear who would now carry out the alerts.

An exemption to labelling applies to products where, due to the level of processing, they no longer contain the allergenic component.

Products that are sold loose or ‘pre-packed for direct sale’ are exempt from the Food Labelling Regulations. ‘Pre-packed for direct sale’ is defined in the Regulations and refers to food that is produced and pre-packed by the business for sale on the premises or other premises conducted under the same name, for example in their in-store bakeries, which make foods such as breads, pastries, cakes. It also includes sandwiches packed and sold in sandwich shops.

An offence under these Regulations can only be dealt with in the Magistrates Court and is subject to a maximum fine of £5,000.

CONCLUSION

We both sincerely hope that you never need to consider any form of legal action, but if you do, we hope that this has given you some useful pointers.

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