Contract Law & Food Poisoning Cases
Added on 2020-05-08
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Case 6Wood v First Choice1Background This case was related to a claim in industry which surrounded food poisoning while the plaintiff was on holiday. The issue in this case was whether the property in the drink or food which was consumed when the plaintiff was on an all inclusive holiday passed to the consumer, in such a way that the contract was one of sale of goods, based on section 4(2) of the Supply of Goods andServices Act, 1982. This would mean that a term had been implied regarding the food and the drink to be of a satisfactory quality. And this very verdict was upheld by the Court of Appeal2. Had the contract only been for one provision of services, i.e., the holiday provision, then the maximum which could be interpreted from the implied term was that the service had to be provided with skill and reasonable case, based on section 13 of the quoted act. It was a big possibility that the food could induce food poisoning even when the reasonable care and skill hadbeen exercised by the tour operator while selecting the restaurants and hotels. However, where a term with regards to the satisfactory quality of the goods implied themselves the possibility falls away. None of the views can be stated that the food which induced food poisoning had been one of satisfactory quality, even when the fault was that of the hotel and there was no reason to blame the tour operator. And yet, this ruling resulted in the tour operator being liable in an ordinary manner3. 1 [2017] EWCA Civ 112St John’s Chambers, Contract Law Case Law Update (January – March 2017) <http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Case-Citator-20-April-2017-Nick-Pointon-and-Natasha-Dzameh.pdf>3 Ibid
The defendant presented their case in a very attractive manner. It was argued by them that all thatwas done by the defendant was merely providing a license to all inclusive customers for consuming the drinks and food where no question was raised on them forever becoming the owners of what went on the glasses or plates. Upon being consumed, the goods were destroyed. However, the Court of Appeal made reference to the case of Lockett v A&M Charles4 and distinguished from the recent ruling of the Supreme Court in PST Energy 7 Shipping v OW Bunker Malta5, holding that where the customer took the food from buffet, the property included in the fare, became his, i.e., the defendant’s. Sir Brian Levenson P, with regards to the floodgate concerns of the defendant, was of the opinion that there would always be a difficulty in establishing that the illness resulted from the drink or the food which was not satisfactory in quality till the time there was a cogent evidence regarding other people to have been affected in asimilar manner and the other explanations would be required to be excluded. However, this was to be done on the basis of balance of probabilities and this claim opens upon a plethora of new claims6. Question 1Whether a claim of negligence can be made against the defendant?Answer 1Negligence can be defined as a breach of duty of care, in which the defendant owed a duty of care to the plaintiff owing to the actions being undertaken by the defendant, which had the capacity of injuring or harming the defendant7. In this regard, the case of Donoghue v Stevenson84 [1938] 4 All ER 1705 [2016] UKSC 236 Ibid7 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)8 [1932] AC 562
is of assistance. In this case, the plaintiff consumed the ginger beer bottle manufactured by the manufacturer which contained a dead snail. As a resulting of consuming this drink, the plaintiff fell sick and sued for negligence. The defendant claimed that a duty of care was not owed to the plaintiff as the friend of plaintiff had purchased the ginger beer bottle. However, owing to the reasonable foreseeability of a contaminated drink resulting in harm and the proximity between a manufacturer and consumer, made the defendant liable9. In the given case, the negligence of the defendant can be established as there was a reasonable foreseeability of food poisoning and even proximity between the plaintiff and the defendant since there was a consumer and service provider relationship. Also, unlike the quoted case, the plaintiff had purchased the ticket directly, which further makes the defendant liable. Question 2Would this condition change, where a holiday maker takes food from the buffet, touches with bare hand, and then keeping it back in the buffet?Answer 2In this case, the defendant can show that the food was adulterated owing to the interference of the holiday maker and can apply for the damages to be reduced, on the basis of the same not being a reasonable foreseeable issue. The lack of reasonable foreseeability of the holiday makers doing so would discharge the liability of the defendant in this case, as the case of Wyong Shire Council v Shirt10 dictates that for foreseeability, the view of a reasonable person is to be undertaken.9 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)10 (1980) 146 CLR 40
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