When we think about accidents in restaurants, as Defendant Claims Handlers, we typically know what to expect. We are all too familiar with reports of customers or employees slipping as a result of a spillage, or allegations of food poisoning after a meal. As digital converges with bricks and mortar as well as a growing diverse population, we are starting to see a change in both the sort of claims that are starting to be made, as well as the ways in which our clients want to see these claims dealt with.
So what do we mean by this? In most accidents the injury is very physical in nature, a broken bone, or a sprained ankle. But what about customers who are of a certain religious denomination and cannot consume certain meats like beef or pork, and are accidentally served meals containing these ingredients?
In a situation like this, where the injuries are more psychological in nature, we would investigate the matter the same as any other; has a breach of the duty of care occurred? And, can causation be established?
That is not to say that the conventional slip and trip cases are a thing of the past, and in most circumstances, the Food Business Operator (FBO) will want to defend these matters wherever they can. However, we are seeing a significant rise in FBOs looking to resolve the matter directly with the Claimant, often as an extension of good customer service.
Interestingly, the reason for this is often less about the commercial balance between the cost to settle and the cost and uncertainty of defending litigated claims, but more about the indirect cost of the reputational damage of adverse reviews on social media or review sites. This is of course a legitimate concern and it is natural for any business to want to protect its brand, however, an unintended consequence of this can be that it sets a precedent where possibly spurious claims go un- challenged and allows low level dubious claims or even fraud to grow unfettered.
This leads to a more prosaic problem. In this conflict between brand protection and insurance indemnity who will prevail? Who should prevail?
We, together with our specialist products liability and regulatory lawyers, are here to support our FBOs through these muddied waters. We must guide them through this changing environment and seek to uphold the values of law and evidence, and strike the right balance between brand protection and commercial expediency.