Review of liability in aircraft food poisoning claims

In recent years, we have seen a significant increase in the number of food poisoning claims being presented by passengers who have allegedly consumed contaminated food during their flights. Foodborne pathogens can cause serious illness to both passengers and crew alike and therefore presents a risk to flight safety. Whilst food handling on the ground is well regulated, there is little regulatory oversight in respect of food safety standards and practices on board the aircraft. With the increasing number of passengers carried, year on year, air travel is more accessible than ever and if only a very small percentage of these passengers experience food poisoning, this equates to a significant number of claims being presented in respect of food poisoning in any given policy year.

Although the risk of food poisoning can be attributed to the food itself, more often than not, transmission of food related illnesses occurs due to mishandling of the foods at the food preparation stage, unsatisfactory packaging and storage, or poor food hygiene standards. Hygiene and cleanliness on the aircraft also presents a significant risk factor in the transmission of pathogens, as many pathogens can survive for months on the different surface types within an aircraft and can be spread by direct or indirect contact with the surface. The most common areas for transmission of pathogens include the worktops and utensils within the galley, sinks and taps, door handles and locks (particularly for the bathroom facilities) and of course, tray tables and armrests. There are three main hazards in the food processing and packaging process; microbiological (which is most commonly the cause of food poisoning), chemical contamination, and physical contamination.   

Operational Effect of Food Poisoning

In the event that a passenger becomes unwell on board, the crew are trained and prepared to care for the affected passenger.  But what if the crew or the pilots become sick? Pilot incapacitation, even minor incapacitation, can present a significant risk to aircraft. Furthermore, flight safety is paramount and this issue can, in some circumstances, lead to the rerouting of the aircraft. This was demonstrated recently when a Delta Airlines Flight was forced to turn back two hours into a flight from Atlanta to Barcelona due to passenger diarrhoea. This causes unexpected cost to the airline, who will not only be required to pay the costs of the medical diversion but may also trigger payment to the passengers for the inconvenience, such as under Regulation 261/2004.   

Whilst medical emergency is usually considered an “extraordinary circumstance”, offering an airline a  potential defence to avoid paying compensation, passengers remain entitled to claim their right to care, which includes the provision of food; drinks; accommodation if delayed overnight; travel to and from the airport to the accommodation; two free of charge telephone calls or emails; and reimbursement for any necessary expenses incurred as a result of a diversion, pursuant to Article 9 of Regulation 261/2004.  On a commercial aircraft full of passengers, the costs of diversion could result in considerable adverse financial consequences.  

Transmission of Pathogens

When a passenger becomes sick, whilst the crew are able and trained to provide care during the flight, it is important that the crew are vigilant in ensuring the effective cleaning of the aircraft, as pathogens are easily spread and can exist for a number of months on the surfaces of an aircraft. A simple instance of a crew member coming into contact with a passenger who has a transmissible illness could lead to the infection of a number of passengers on all subsequent sectors, particularly if the infected crew member has been in contact with food or drinks which have been consumed. It is not possible to eliminate all risk of cross contamination, however according to the WHO, thorough handwashing with soap and water can reduce the spread of infection.

Following the Covid-19 pandemic, the use of hand sanitisers and gloves has become the norm for a number of cabin crew members, however, hand sanitisers are not effective against all known pathogens, and should not be considered a substitute for appropriate handwashing.  Similarly, the use of gloves can lead to unsafe practices, particularly in the preparation of in-flight catering where it has been documented that employees have touched the food cart and have then returned to the preparation of raw foods with the same gloves. The WHO, IFSA and IATA all provide best-practice guides in respect of on-board food safety and hygiene.  

Microbiological Pathogens 

The most common cause of food poisoning is bacterial or microbiological pathogen infection. There are a number of common pathogens which are easily transmissible including salmonella, E.coli, and listeria. Incubation periods can range from a few hours to a number of days and recovery times can last from a number of days to a number of months depending on the pathogen.  

In the vast majority of claims, passengers do not provide any medical diagnosis. Instead, they will often describe symptoms of vomiting and diarrhoea, abdomen cramping and loss of appetite. However, we are increasingly receiving claims where the passenger has provided a confirmed diagnosis of food poisoning. The only way to test for food poisoning is via stool sampling and in the majority of cases, their sample confirms the presence of the campylobacter pathogen.  

Campylobacter is easily transmitted, and symptoms can be severe, ordinarily lasting up to ten days. The most common causes of infection are cross contamination, contact with an infected person, and contact with unclean food or water. The incubation period for this pathogen can range between two to five days and therefore when there is a confirmed diagnosis of this pathogen, careful consideration must be given to the symptoms described and the time of their onset and duration.  

Consideration must also be given to the type of food consumed, as not all food types carry all microbiological pathogens. Fish, for instance, does not carry the campylobacter pathogen and so claims in respect of a confirmed diagnosis of campylobacter following consumption of a tuna sandwich, for example, could be denied if an airline or its insurer is able to rule out the possibility of cross contamination during handling, transport or service.  

By way of example, if the passenger raises a claim with an airline providing positive confirmation of the campylobacter pathogen, and alleging that symptoms developed during or a few hours following consumption of a tuna sandwich on the flight, it is reasonable to assume that the passenger became unwell as a result of actions taken prior to their flight. As tuna does not carry the campylobacter pathogen, it is reasonable to assume that the in-flight food was not the cause of infection. Additionally, the typical incubation period for campylobacter is two to five days, and so we can conclude that the transmission of the pathogen occurred prior to the flight. This does not mean, however, that investigations do not need to be undertaken. The typical incubation period is a minimum of two days, whilst the tuna may not carry the pathogen thorough investigations are required to ensure that all processes and procedures have been complied with by the caterers and manufacturers of the in-flight food, as well as the cabin crew to rule out the possibility of any cross contamination with other products.  

Catering and Manufacturer’s Due Diligence Reports

As previously stated, food handling is the most common cause of contamination. For this reason, upon presentation of a claim, catering due diligence records must be obtained to ensure food safety practices are being adhered to. 

Caterers and food manufacturers are required to implement and abide by a Hazard Analysis and Critical Control Point (HACCP) plan, as recommended by the Food Standards Agency. HACCP principles involve the identification of any risks to food safety within the business; the identification of any critical control points to ensure those risks are removed or reduced to safe levels; ensuring a plan is in place to enable action in the event something goes wrong; ensuring these standards are followed; and ensuring adequate recording of those processes. Further, information regarding the food handling processes should be provided.  Specific data must be obtained in respect of use by dates for each ingredient, temperature logs for the handling and storage of the food items, and details regarding the date that the items were frozen or packaged should be provided.  As the HACCP plan requires the recording of safe standards, these records should be readily available for disclosure at the airline’s request. Any deviation from the company’s HACCP plan can represent a liability risk to the airline.  

As previously detailed, a number of passengers are now presenting a positive medical diagnosis with their claims. Food manufacturers are required to conduct microbiological sampling of each of the batches of food produced by them and then store these sample batches for future testing. Assuming the claim is raised within a reasonable period of time, specific microbiological tests can be undertaken by the food manufacturer to rule out the presence of a proven pathogen. The results of microbiological sampling is key to assessing the liability risk and defending (where appropriate) a claim made against an airline.  

Cross contamination of food can not only occur during the food manufacturing process, but can also occur during delivery, storage and on board the aircraft. Delivery and storage records should also be obtained to ensure that products have been stored and delivered at appropriate temperatures and in such a way as to avoid any possibility of cross contamination.  

Cross contamination on board the aircraft is common. Where the foods are in hot hold, or being served to passengers in sealed packaging, cross contamination is most commonly caused by the usage of the temperature probe. In claims where the food is served to passengers in open containers, cross contamination can arise from the crew members preparing and serving the food, the ovens and the temperature probe.  

Temperature of products

The Food Standards Agency recommends that food should be cooked to a high enough temperature to ensure food is thoroughly cooked or reheated.  In order to achieve this, the cabin crew must utilise a properly calibrated probe to test the centre of the product which must demonstrate an internal temperature for a minimum time.  By way of example, at the top end of the scale the internal temperature of food must reach 80°C when tested for at least six seconds, and at the bottom end of the scale the internal temperature of the food must read at 60°C for a minimum of 45 minutes.  During the process of hot holding, the cabin crew must periodically check the hot food with a temperature probe to ensure that the minimum temperature of the centre of the dish reads 63°C.  If the food drops below this temperature, it must be used within two hours, or discarded to avoid infection by bacterial pathogens. 

The use of the temperature probe can be problematic if the cabin crew and airline are not vigilant with the disinfection and maintenance of the probe. The requirement to maintain the probe and how often this should be undertaken will be provided in the manufacturer’s instructions, however the cleaning and disinfection of the probe should be undertaken after every use. It is not sufficient to wipe the probe between individual meal or hot holding tests; the probe must be cleaned properly to avoid transmission of bacteria and cross contamination from one meal to another. This should form part of the Standard Operating Procedures for preparing and handling hot food on board the aircraft, and confirmation of compliance with those procedures should be recorded in the flight report. The recording of this information is particularly important as there has been a noticeable rise in allergen related claims over the past couple of years from cross contamination of gluten or other food related allergens.

Illustrative Examples

By way of example, let us consider that a claim is received from a passenger alleging a flare up of coeliac symptoms experienced during the flight, and food poisoning symptoms following consumption of a gluten free chicken pasta meal. The passenger provides a confirmed diagnosis of campylobacter which onset two days following the flight, and evidence in the form of medical notes to confirm a flare up of coeliac symptoms.  Upon receipt of this claim, a full investigation must be undertaken.  

Upon receipt of the full catering due diligence records, we will be able to confirm that all ingredients were within their use by dates, stored and manufactured within normal temperature limits, and away from gluten or surfaces where gluten is handled.  We will further be able to evidence that appropriate HACCP plans were in place and followed during the manufacture of the gluten free chicken pasta meal. This documentation should also show that during delivery to the caterers and/or the airline, the meal was packaged and stored away from meals containing gluten, and delivered at appropriate temperatures. Details of microbiological sampling are provided which confirm there is no presence of any campylobacter in the test sample. At the point of delivery to the airline, we can rule out any liability risk as a result of the manufacturer or caterer’s actions.   

Upon delivery to the airline, the meal is again stored separately to the meals containing gluten and stored at correct temperatures. The meals are then loaded to the aircraft correctly. During flight, all Standard Operating Procedures are followed, and the crew test the temperature of the meal during hot hold and during the reheating process to ensure minimum temperatures are reached and maintained. These temperature recordings are detailed within the flight report and confirmation is received that the probe utilised was kept separate from the other probes to ensure no cross contamination and was washed in between each instance of testing.  

In the above scenario, liability for this claim can be denied. Reliance on the catering due diligence reports, microbiological sampling and the flight report detailing the handling of the food would be sufficient evidence to prove that the airline took all action to mitigate the risk, and the possibility of cross contamination is minimal.  

In the same scenario, but where the catering due diligence logs are incomplete, or where the microbiological sample has failed to test for campylobacter, there is a liability risk and in these circumstances a recommendation may be made to settle the claim. Similarly, if the flight report does not provide details regarding the safe usage of the temperature probe, or the cleaning of the same between each usage, there is a risk that there may have been cross contamination and/or the formation of bacteria as a result of there being insufficient sanitisation of utensils and accordingly a recommendation to settle would likely be forthcoming.  

Conclusion 

Whilst settlement sums for these types of claims are usually low value, with the increasing number of claims being received, in part, due to  the increasing number of passengers travelling, these low value claims start to add up and can cost airlines and their insurers a significant sum, especially if a medical diversion is required as a result of a passenger or crew member becoming ill or suffering an allergic reaction due to a contaminated food product.  

With the pressures on cabin crew to comply with safety processes as well as service processes, an airline cannot eliminate risk all together. However, reviewing standard operating procedures relating to handling and preparation of food on board the aircraft and ensuring the adherence to food safety regulations and best practice guides will ensure mitigation of risk factors to the airline as a result of cabin crew actions.  

Taking steps to ensure that food manufacturers and catering sub-contractors have effective food handling standards and HACCP plans in place will further mitigate this risk, and expectations to receive complete records and due diligence logs should be communicated to food manufacturers and caterers at the outset of the relationship.