The start of 2016 saw anticipated revised guidelines in environmental health. For the first time, courts in England and Wales have comprehensive sentencing guidelines covering the most commonly sentenced health and safety offences and food safety offences. Nobody enjoys the dire effects of food poisoning and the mere thought of consuming contaminated food, rings several bells with health officials; as a consequence, this can result in a far more complex legal segment in which expert witnesses, such as our next guest, are challenged to investigate in the most intricate of scenarios.
Here Lawyer Monthly hears from Dr Belinda Stuart-Moonlight, Managing Director at Moonlight Environmental Ltd, a UK-based firm providing expert witness services, as well as consultancy, auditing and training services in food safety and workplace safety.
Can you detail what are the most common types of environmental or food safety cases in which you serve as an expert witness?
There is no typical case for which I receive instructions, although the majority concern some form of contamination, be it microbiological, physical or chemical. I work in the criminal and civil arenas (holding the CUBS Cardiff University Expert Witness Certificate in both) and have a roughly 50/50 split of claimant prosecution/defence cases. Examples of my expert health/hygiene reports include:
- Outbreaks of gastric illness in holiday resorts such as in the Dominican Republic, Egypt, etc. (civil);
- Norovirus outbreaks on cruise ships, in holiday camps, in hotels, etc. (civil);
- Food poisoning and due diligence in a fatal Clostridium perfringens outbreak (criminal case with landmark £1.5m fine);
- E coli O157 infection contracted from a water fountain (civil);
- Fatality resulting from the service of a curry containing peanut to a declared food allergy sufferer (criminal);
- Employer’s reasonable controls to prevent the risk of Leptospirosis alleged to have been contracted at work by a wastewater handler (civil);
- Due diligence in the case of mouldy cakes (criminal);
- Broken teeth from a stone in Feta cheese (civil).
What are the primary steps and obstacles in obtaining evidence and facts in order to provide a thorough analysis in these cases?
I would normally receive instructions and a bundle of evidence at the beginning of a working case. The bundle might be a modest few pages or several boxes. Every document is logged as I work with my PA to start a case file. This logging process is very helpful because it gives me the opportunity to understand what evidence is available whilst I create a ‘shopping list’ for my instructing solicitor. This is the list of questions, evidence and requests that would enable clarification of my opinion.
I find that in criminal cases my shopping list is often much shorter than in civil cases, as I am usually provided with much of what I need at the start. Additionally, with tighter timeframes, progress is quicker. In civil matters, it can take years to resolve the issues in my shopping list and obtain the requested evidence.
If it is necessary for me to visit a site, for instance, to look at a kitchen, a resort layout or a hygiene system (such as laundry or swimming pool/spa plant), the sooner the better. This is because the closer to trial it takes place, the more time and money is wasted on ifs and buts. Site visits are extremely helpful. A picture may paint a thousand words but a site visit trumps that every time. It also enables me to speak more convincingly in the witness box with the benefit of first hand experience.
There are a number of obstacles in obtaining evidence in a form that helps me analyse a situation. Sometimes, evidence is simply not available or does not arrive until the very last minute. Sometimes it is illegible, but what I have most difficulty with is when it appears fabricated. This can be difficult to challenge in the absence of other smoking guns.
Are there particular challenges involved in these analyses?
In larger outbreak cases, I am often appointed as a breach expert. I complement medics and microbiologists whose evidence primarily concerns causation. It can be tricky to coordinate our opinions; it’s a bit of a chicken and egg dilemma. I am needed to look at what has gone wrong in hygiene control systems, whilst the medics/microbiologists work out what bug(s) caused illness. It’s not difficult if there are clinical specimens confirming the culprit, but where there are only symptoms of illness and no bug, a range of possibilities arise. Failures in hygiene control can tell a story and narrow down the likely possibilities. Case conferences at an early stage are invaluable in exploring the evidence and leading us in the right direction.
In the more extensive civil cases involving, for instance, catering on an industrial scale, there can be large volumes of records to be analysed. This is not difficult, but just time consuming to set up spreadsheets and cross reference hundreds of documents. Norovirus cases can be particularly difficult because the virus is spread environmentally as well as through food. This means that general cleaning and hygiene records need to be analysed in addition to food control records.
Can you detail the ins and outs of two specific cases you have been instructed on and the complexities therein?
Case 1 (Criminal)
A recent case involved a food poisoning outbreak amongst a gathering of members of a charitable organisation. Within a few hours of eating a three-course supper, many members suffered diarrhoea and vomiting. The EHO was called and visited the caterer, procuring several food samples from the previous evening’s dinner. These were duly analysed and a pathogen (Clostridium perfringens) matching the sufferers’ symptoms was identified.
A criminal case was instigated citing the placing on the market of unsafe food (Article 14 EC178 2002). The EHO and the Health Protection Agency (as it was then – now Public Health England), invested considerable resources on the investigation. What they hadn’t realised (or failed to take notice of) was that the sampling protocols that should have been followed had been compromised and the integrity of the samples, upon which the case was based, was flawed. A detailed analysis of the continuity of evidence and the data logger temperature graphs revealed samples had been kept in a warm staff fridge. Additionally, custard and soup samples were muddled in the laboratory. With such evidence, the impact of my report enabled the Defendant to avoid prosecution for the unsafe food offence.
Case 2 (Civil)
‘Mr Eric Swift and 15 Others v Fred Olsen Cruise Lines’ – this case was originally heard in Birmingham County Court and was then subject to appeal. It concerned a claim for damages following Norovirus outbreaks on successive cruises on MV Boudicca. I was instructed by the Claimants’ solicitors to provide a health and hygiene report looking at the control of Norovirus on the ship. This was in terms of both the quality of the control plan/policies, as well as the records of implementation at the relevant times.
I looked at how public areas, cabins and back of house areas were cleaned and disinfected. Additionally, I looked at how much time and what resources had been employed to enable effective decontamination during cruises and between cruises. The questions of parity with industry standards and compliance with international public health requirements were also reviewed. I was able to show that if early warning alarms had been better acted upon and complacency dispelled, subsequent outbreaks would probably not have occurred.
The original trial found in favour of the Claimants and the appeal by Fred Olsen Cruise Lines was unsuccessful.
What do you believe makes you the go-to expert for food safety and infectious ingested diseases?
- Has worked on landmark cases
- Holds Cardiff University CUBS certificate
- Every action instigated as an EHO successful in Court
- Excellent academic credentials
- Daily experience of industry practice through consultancy, auditing and training work
- Advisor to Association of British Travel Agents (ABTA) and Chartered Institute of Environmental Health (CIEH)
