Negligence in food safety

The modern law of negligence has its origin in a decision in food safety law emanating from the early 1930s- around about the time Kevin Heffernan and Eamon de Buitlear were born.

On a Sunday afternoon in Paisley, Scotland one Mrs Donoghue purchased a bottle of ginger beer in a small restaurant and suffered gastroenteritis and severe shock, having consumed a small quantity of the drink. It later transpired that the opaque bottle contained some decomposed snail.

Even if the pivotal decision in Donoghue and Stevenson established liability in favour of Mrs O'Donoghue against the manufacturer of the ginger beer (with whom she had no contractual relationship), very many developments - again of an external nature - have moulded the law to enhance consumers' rights in the purchase and consumption of food.

The European Union established the Products Liability Directive (85/ 374/ EEC) in 1985 and required our enactment of the Liability for Defective Products Act, 1991 which covered all food products, including primary agricultural products that were retailed in an unprocessed condition.

The 1991 Act excluded unprocessed agricultural produce but subsequent regulations - the European Communities (Liability for Defective Products) Regulations 2000 -included all primary agricultural produce.

The onus is on the consumer to show the damage, the defect and the causal relationship between the defect and damage. This is not an easy burden to discharge and can be difficult for an injured consumer. A variety of different food products may have been consumed at the same time and proving which food gave rise to the illness will not be easy. Where the injury can be linked to a particular cause, the Act assigns responsibility without proof of fault to the producer of the defective product. This is known as strict liability.

This strict liability is exceptional and distinguishes itself from the ordinary law under which a party can escape liability on the basis that it has not been guilty of any wrongful conduct, notwithstanding an injured party's establishing a cause or link.

There are some defences open to a food producer, two of the most important of which are:

• That the producer can establish that it did not put the product into circulation; or

• That the defect did not exist at the time when the product was put on the market, but came into being afterwards.

Showing a link between the product and the injury can be very difficult in very many cases of food illness.

Liability can attach to any of the following:

• The manufacturer or producer of the finished product

• The manufacturer or producer of any raw material of the product

• Any person who carried out initial processing on the product

• Any person who, by putting his name or mark on the product, has held himself out to be the producer of the product

• Any person who has imported the product from outside the European Union

• Where the producer can not be identified, the supplier of the product.

Liability is shared where two or more persons are liable for the same damage.

Producers need to have adequate insurance against litigation that may ensue where produce is responsible for food-generated illness.

Apart from liability to the victims, a producer found to be lax in its controls in respect of consumer safety can suffer reputational damage, if not destruction for brand names, which can have quite significant commercial consequences.

Authorities such as the Food Safety Authority of Ireland monitor compliance with food law and animal welfare rules. The Authority can prosecute producers who supply contaminated food. A food business operator may be guilty of an offence if it places unsafe food on the market. It may be guilty of an offence if it fails to withdraw foods where there is reason to believe that it is not in compliance with all relevant food safety requirements. A person who is guilty of an offence under the Regulations is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding three months or both and on conviction on indictment to a fine not exceeding €500,000 or imprisonment for a term not exceeding three years or both. The graver the facts the more likely there may be a prosecution on indictment.

Where a person is convicted, they may be ordered to pay the Food Safety Authority of Ireland the costs and expenses it has incurred in the investigation and prosecution of the offence.

Consumers are properly guarded and require the protection of the law where unsafe food in any form enters the market. Because of the sensitivity, if not delicacy of the subject, there will be undoubted and continuing vigilance in this area.

Joseph B. Mannix is a partner in the firm of Mannix & Company, Solicitors, 12 Castle Street, Tralee. Phone 066 7125011. Email Web


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