Rev'd Dr Helen Hall, Associate Professor NLS https://www.ntu.ac.uk/staff-profiles/law/helen-hall
Mid-winter festivities have long been associated with overindulgence in food and drink, with all of the accompanying bodily consequences. The division between enthusiastic celebration and unrestrained gluttony can be a hazy one, and many people have strayed a few mince pies over the line at some stage. However, in addition to the expected hazards of overeating or taking one sherry too many, there is the danger of presented by contaminated or incorrectly prepared food. The increased demand for luxury items in the run up to holidays, combined with large social gatherings, puts increased pressure on factories, transport comings, retailers, and restaurants. The frantic pace of working inevitably raises the risk of mishaps. For example, last week Tesco found itself in the embarrassing position of having to recall a batch of its “Finest Apple and Cranberry Stuffing Mix”, because it potentially contained moths.
Clearly, any moths actually present in the mix would have been every bit as capable of triggering a negligence action as infamous snail in Mrs Donoghue’s ginger beer, as well as violating various provisions of food safety and consumer protection legislation. However, what about non-edible items deliberately included in festive dishes? A London restaurant hit the headlines in 2012 by asking diners to sign a legal waiver before consuming their Christmas pudding, which had traditional silver charms hidden inside. Putting coins, tokens, or even hard beans into seasonal puddings and cakes is common to many cultures, as part of the fun and ritual of celebratory meals. There are often customs associated with the person who finds them, but inevitably there a degree of risk in the practice. The restaurant wanted to ward off any potential claims for chipped teeth, or even worse, choking.
Just how effective could this type of waiver hope to be? Generally speaking, it is not possible to exclude liability for death or personal injury caused by negligence: Consumer Rights Act 2015 s65(1) and Unfair Contract Terms Act 1977 s2(1). Yet in this particular case, it might be argued that the injury is not down to any negligence on the part of the restaurant. There is an inherent and inevitable danger in eating food with something hard potentially lurking inside, especially if the material in question is not suitable for human consumption. It isn’t possible to play the game of hiding charms in a Christmas pudding with a complete guarantee of safety, any more than it is possible to play football or rugby in their current forms without the chance of players getting hurt. If everyone eating in the pudding is aware of the risk and has chosen to accept this as part and parcel of the activity, then there is no reason why consent should not be operative.
Obviously, consent must be free and informed, and will not be boundless in its scope. Agreeing to hazard a dental injury or a remote chance of choking (which should be highly unlikely for anyone using a spoon and chewing the normal way) will not give chefs complete carte blanche to sneak absolutely whatever they like into dessert. Some nightmare cross between Willy Wonka and Heston Blumenthal, who decided to stir in mini landmines with raisins, could not hope to escape liability. Yet subject to these caveats, there appears to be no overwhelming public policy reason to supress this longstanding Christmas tradition.
Consent is key however, even in a non-commercial setting. Very few people would ask their nearest and dearest to sign a written agreement before sharing a festive meal, but if anyone is planning to play the game of hiding non-edible objects in the pudding, it would be advisable to make sure that everyone eating it is well aware beforehand!
On that cheerful note, the editorial team at the blog would like to wish everyone a very happy holiday season. A huge thank you to all of our readers and contributors during 2023. May you survive any pudding related adventures, and get the winning end of any crackers that you happen to pull!
Related Articles
Tesco Recalls Christmas Stuffing Mix Because It May Contain Moths, BBC News (14/12/2023) https://www.bbc.co.uk/news/business-67710700
Pudding is Served With a Legal Waiver, London Standard (12/4/2023) https://www.standard.co.uk/hp/front/pudding-is-served-with-a-legal-waiver-6707208.html
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