Gross Negligence Manslaughter, Restaurant Owners and the Duty of Care
| Author | Tony Storey |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/0022018318779488 |
| Subject Matter | Case Notes |
The Journal of Criminal Law
2018, Vol. 82(3) 201–205
Gross Negligence
ª The Author(s) 2018
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DOI: 10.1177/0022018318779488
Owners and the Duty of Care
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R v Zaman [2017] EWCA Crim 1783
Keywords
Homicide, gross negligence manslaughter, food allergy, duty of care, breach of duty, causation
Mohammed Zaman (Z) was a ‘highly experienced restaurateur’. He ran the Indian Garden restaurant in
Easingwold, North Yorkshire, along with four other restaurants in the county. In January 2014, Paul
Wilson (W) had visited the restaurant and ordered a chicken tikka masala takeaway. W, who had been
diagnosed as suffering from a severe peanut allergy since he was a seven-year-old, had told staff that his
meal must not contain nuts and had been assured by a waiter that his meal would not contain any.
However, this was not, in fact, the case and, after returning home and eating his takeaway, W suffered a
severe, and fatal, anaphylactic shock.
Z was charged with gross negligence manslaughter (along with six counts of contravening food safety
regulations) and appeared before HHJ Bourne-Arton QC and a jury at Teesside Crown Court in May 2016.
The Crown case was that at the start of 2013, Z’s business had debts of £200,000 (increasing to nearly
£300,000 by the year’s end). In June 2013, in an attempt to save money, Z had switched from using
almond powder to mixed-nut powder as an ingredient in various dishes. Mixed-nut powder, comprising
wholly or mainly peanuts, was around 50% cheaper than almond powder. A sales representative from the
ingredients suppliers (Fakir Chilwan) said that he had met with Z and told him that this change in the
ingredients would have to be indicated on the menus; Z had assured Chilwan that this had already been
done.
However, a week before W’s death, an officer from North Yorkshire Trading Standards Department
had tested a chicken korma meal at another of Z’s restaurants, the Jaipur Spice in Easingwold, and found
that it contained 5–10% peanuts, despite having been given an assurance that the meal was peanut free.
This followed an incident three weeks’ earlier whereby a different customer, 17-year-old Ruby Scott,
had suffered a violent allergic reaction that required hospital treatment, after eating a takeaway chicken
korma meal containing peanuts that she had bought from the Jaipur Spice. Like W, she had sought and
been given (inaccurate) reassurances that her meal did not contain peanuts. The officer visited the
restaurant’s kitchen and found, among other things, a tub marked ‘coconut’ that was contaminated with
peanut, at a level sufficient to trigger a reaction in a person with peanut allergy. On a subsequent visit by
trading standards officers, an ‘unmarked tub containing sugar [with] significant peanut contaminant,
sufficient to cause a severe allergic reaction in an individual with an allergy to peanuts’ was discovered.
One officer ‘saw the chef using the same spoon to take ingredients from different containers, which
could and would have resulted in mutual contamination’ (at [19]).
During the trial, the defence denied, in particular, that Z had breached his duty of care to W. Z
claimed that he ‘had acted as a reasonable person would do in his position, in that the staff had sufficient
training and knowledge to deal with the customer’s order’ (at [27]). Z conceded that in his restaurants
there were:
202
The Journal of Criminal Law 82(3)
no relevant written procedures or policies (and, in particular, in respect of allergens), no written recipes, no
labelling of containers, and no system for recording the fact that each member of staff understood the
procedure and policy in relation to allergens.
However, he claimed that he had discharged his duty of care because such procedures existed and that
appropriate training had been provided and instructions given, albeit verbally (at [28]). Z sought to
blame his staff ‘who had repeatedly failed to comply with their training and his clear and strict instruc-
tions’ (at [31]). For the...
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