Mohammed Kuddas [2019] EWCA Crim 837; [2019] 2 Cr App R 16

The appellant was the sole director of a food takeaway where he also worked as a chef, a co-accused (and former owner) worked in the restaurant. The deceased ordered food online via Just Eat and noted in the comment box “nuts and prawns”. The food provided contained a peanut protein and she suffered a severe allergic reaction and died.
He was convicted of manslaughter having pleaded guilty to failing to discharge a general duty of employers and contravention of Food Safety Regulations. The co-accused pleaded guilty to all 3 counts. The appellant appealed against his conviction for manslaughter.

The deceased was 15 years old and she and her parents believed her allergy to be mild. It is not known whether she clicked on the further link about having an allergy, that link presented a customer with a first option strongly advising them to contact the restaurant. There was evidence that the comment made in the box was seen by the co-accused but was not seen by the appellant.

The local trading standards officer had written to the takeaway about the need to communicate allergens to customers, but the menu uploaded onto the Just Eat website did not contain that detail but did refer to ‘Think Allergy” and to ask a member of staff.

It was agreed that “Hazard Analysis and Critical Control Point” procedures were not in place at the takeaway and they did not appear to acknowledge risks of cross contamination and samples taken from various items showed presence of peanut proteins.

The prosecution case was that the appellant owed a duty of care to the deceased and failed to take reasonable steps to provide food safe for consumption by a person with allergies, it was alleged the manner in which the business was operated demonstrated a lack of concern for the safety of customers and that there was an obvious and serious risk of death. Further, that his failure as a business owner to introduce systems of allergen control led to the negligent breach of his duty of care.

The co-accused accepted he saw the comment in the box but did not take it seriously as it did not refer to allergies, he passed on the order slip without pointing it out to anyone and that he knew the naan was made with almonds and coconut but did not know almond was a nut. He would have declined the order if it specifically mentioned allergies.

The appellant’s case was that he was the chef who part prepared the order but did not know about the comment on the order or the allergy and that he was in the same position as the other chef who part prepared the order but was not prosecuted. It was clear that he was not aware of the responsibilities of a restaurant in respect of allergen control.

The defence argued, as well as foreseeability and the risk that must be foreseen, that the jury should also consider whether a serious and obvious risk of death in fact existed. The judge rejected the submission and said the issue was one of reasonable foreseeability of the relevant risk. The first ground of appeal was that this was wrong and drew a distinction between the foreseeability of risk and the existence of risk.

The medical evidence was that the deceased reaction was a very rare occurrence and the consensus medical opinion before the incident was that she had a mild allergy with no suggestion that it might lead to her death.

The Court of Appeal held that to focus on the particular circumstances of the specific victim was to misunderstand what has to be established to prove gross negligence manslaughter. There is no requirement to prove a serious and obvious risk of death. The question to be answered is whether the defendant’s breach gave rise to a serious and obvious risk of death to the class of people to whom the defendant owed a duty. The submission advanced is mistaken as it over-personalises the question of fact that the defence submitted should be left to the jury. It was right for the trial judge to reject the submission.

The second ground of appeal was that the judge wrongly equated the knowledge of the business (or the co-accused) with that of the appellant, on the basis the appellant was responsible for the system in the restaurant. The defence contended that the appellant was treated as being subject to a duty of care as long as the allergy was declared to the business and even if the declaration was made without the knowledge of the appellant. Regardless of the propriety of imputing knowledge in the context of regulatory offences it was incorrect in the context of manslaughter. It was not alleged that negligence on the part of the appellant lay in a failure to ensure he was informed.

The prosecution submitted that as the declaration was made to the business and the duty was owed by the owner, no vicarious liability was entailed and contended that the duty owed was wider than only to those who declared allergies.

The Court of Appeal considered that the position of the appellant was different as it seems to have been common ground that he was not notified about the terms of the order. The fact that he was the sole director of the company placed upon 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. “If a reasonable person possessed of the knowledge available to the defendant would have foreseen only a chance that a risk of death might arise, that is not enough to justify a conviction for gross negligence manslaughter. … The difficulty with the approach in this case is that it was not suggested that the appellant was armed with notice that (the deceased) fell into the category of those in respect of whom a reasonable person in the position of the appellant could have foreseen an obvious and serious risk of death by serving the food that he did.” The conviction for gross negligence manslaughter cannot stand.

This is not to say that the responsibilities of an owner can be ignored simply by ensuring that he or she is unsighted on the specific orders and allergy requirements, in addition to liability in negligence they would be guilty of the other offences of which the appellant was convicted. The appellant spoke little English and took over from his co-accused the previous year in circumstances where the co-accused continued to manage it. The case was solely based on his failure to introduce appropriate systems at a time when he knew nothing of the allergy, the direction to the jury on attribution of knowledge renders his conviction unsafe.