Stories of unusual objects found in food or drinks abound, with high potential for injury if the object is not spotted before consumption. Should this result in an injury, defending the claim can be challenging due to the evidence that is likely to be available.
Having purchased a cheesecake dessert, the claimant alleged that as he started to eat it, he bit down on a lump and on spitting it out found it to be a piece of glass. He said that it was not from the container of the cheesecake as that was still intact. He fractured his second molar on the upper right hand side of his mouth and subsequently claimed compensation for his injury alleging that the product was defective.
Defending product liability claims such as this are tricky, the main difficulty generally being the lack of evidence due to the fact that in the majority of cases the claimant will be the only witness. The main risk is the potential for adverse publicity if the case is not successfully defended, coupled with a liability for potentially significant costs.
In this particular claim there were further challenges in maintaining a complete denial because:
- the defendant manufacturer had received other complaints which made it difficult to rule out entirely the possibility of the claimant being credible
- the claimant had called the customer care line relatively promptly on the day after the accident, supporting his credibility
- photographs of the lump of glass were provided, although the actual piece of glass was not.
For tactical purposes a denial of liability was maintained but it was acknowledged that there were risks in maintaining this position. The claimant was put to strict proof:
- that he was eating a dessert manufactured by the defendant when the injury occurred
- the injury was in fact caused by a piece of glass and if so;
- the piece of glass was present before the opening of the dessert.
It was maintained that by having not preserved the piece of glass, the defendant’s position had been seriously prejudiced.
Taking account of the potential risks and evidence available we were able to successfully negotiate an early and reduced settlement for both damages and costs with no admission of liability.
Launching a defence
Ultimately, a Court is likely to accept that on some occasions foreign objects can and do find their way into consumable products. To ensure that you are able to take advantage of a possible defence we would recommend the following:
- Maintain records of regular checks and investigations of production areas and machinery
- Keep a detailed record of any initial complaints received. Any subsequent deviation from this can be particularly harmful to a Claimant’s credibility
- Request that the product and foreign object are preserved at the outset when the complaint is first made
- Request that the product and foreign object is provided for inspection as soon as possible to enable independent tests to be carried out.
It is clearly of paramount concern for food and drink manufacturers to minimise the risk of adverse publicity. Where the evidence is insufficient to maintain a full denial of liability, an early resolution with no formal admission of liability will often be considered a very satisfactory outcome.
It is important to remember that if you are faced with a formal claim, in addition to the above you should always inform your insurers at the earliest opportunity to ensure that cover under the Insurance policy is not prejudiced. Failure to adhere to reporting requirements may lead to your insurers refusing to indemnify you in respect of the claim.