Chief Justice Bell's 800 page judgement was handed down on Thursday 19th June 1997 after his presentation of the Summary - the whole judgement is presented here for your enjoyment.
9. Food poisoning.
"MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals' tissues and can further damage the health of people on a meat-based diet."
I have already said that the part of the leaflet which relates to advertising aimed at children contains the statement that "the [McDonald's] food they're seduced into eating is....... at worst poisonous". In my view those words are a clear reference to what is to come in the "What's your poison?" box, and not to anything else said in the leaflet.
The Plaintiffs complained and pleaded that the description of McDonald's food as "at worst poisonous", the headline "What's your poison?" and the text beneath it in the box together amounted to the defamatory charges that they each promote the consumption of meals at McDonald's when they know full well that the contents could poison the children who eat them, and that they each sell hamburgers which are very likely to cause food poisoning.
The Defendants pleaded that the relevant parts of the leaflet meant no more than that: "Meat is responsible for the majority of cases of food poisoning and chicken and mince-meat are particularly bad". In argument at the close of the evidence, they contended that the leaflet was only pointing out the additional risk of food poisoning inherent in a meat-based diet.
Ms Steel, speaking for herself and Mr Morris, argued that the ordinary, reasonable reader would understand the words "at worst poisonous" to mean poisonous in a worst case scenario. I agree that the words "at worst poisonous" might well indicate the mere possibility of poisoning if taken on their own. But long before reaching those words any reader of the leaflet must have appreciated that the leaflet was a very strong attack on McDonald's with the object of stating facts which should deter him from eating not just food with meat in it but McDonald's food in particular, and there would in my view be little point in telling the ordinary reader who had probably eaten meat with impunity all his life, or for a considerable part of it even if he was by now vegetarian, that McDonald's food was at worst poisonous, unless the message was that the risk of poisoning was very real, serious and substantial.
The impression of a serious risk of poisoning is confirmed by the headline in the box, "What's your poison?", in my view.
The text in the box, taken literally and on its own without any regard to its context, is certainly capable of bearing the inoffensive meaning pleaded by the Defendants, although the statement that chicken and minced beef, two of the main ingredients in McDonald's food products, are responsible for the worst part of 70% of all food poisoning incidents makes matters sound pretty serious. But however this may be, the text in the box must be taken with the description "at worst poisonous" and the headline "What's your poison?" to get their combined message, and in my judgment the message and meaning of the leaflet is that the First and Second Plaintiffs sell meat products which,as they must know, expose their customers including children, to whom they promote their meals, to a serious risk of food poisoning and of poisoning by the residues of antibiotic drugs, growth-promoting hormone drugs and pesticides.
No other kind of poisoning is referred to in the leaflet.
McDonald's could hardly have sold as many meat products as the ordinary reader of the leaflet must know that they have, without being well aware of any serious risk of food poisoning or residue poisoning that existed.
McDonald's obviously promote the consumption of their meals, and the leaflet makes much of McDonald's promotion of its food to children.
As with other allegations in the leaflet, the ordinary reader in this country would in my view take what was said to refer to whoever was responsible for McDonald's generally and in this country in particular, namely the First and Second Plaintiffs.
The meaning which I have found and the meaning pleaded by the Plaintiffs are both clearly defamatory of the Plaintiffs, damaging their trading reputation and making people reluctant to deal with them. They go well beyond mere disparagement of their food products to allege that they know the harm that they are doing. The message is clearly an allegation of fact. There is no comment.
The meaning which I have found is more serious than the meaning pleaded by the Plaintiffs in certain respects. The Plaintiffs' pleaded meaning of likely food poisoning does not specifically refer to products other than hamburgers, and it does not refer to poisoning by drug and pesticide residues. Although the pleaded meaning alleges a meaning that the contents of McDonald's meals could poison the children who eat them, which I would take to include both food poisoning and poisoning by drug and pesticide residues which appear in the same box to which the phrase "at worst poisonous" clearly refers, counsel for the Plaintiffs did not argue that the pleaded meaning took exception to any charge of poisoning by drug or pesticide residues. In fact he rather suggested that it did not, and it is not for me to bring the allegation in for his clients if they have chosen not to rely on it in support of their claim for damages.
In my view, however, the Defendants can rely upon any serious risk to the health of McDonald's customers, which they can prove to arise from drug or pesticide residues in McDonald's food as well as from food poisoning as normally understood, i.e. any gastro-intestinal infection by food-borne organisms, in justification or part justification of the charges relied upon by the Plaintiffs, because in my view it is unrealistic to separate the allegation of risk of food poisoning from the risk of poisoning by drug and pesticide residues when they both come under the heading of poison in the same box. I do not see the allegation of risk of food poisoning and the allegation of risk of poisoning by ingestion of drug and pesticide residues as so separate and distinct that the Plaintiffs are entitled to select one allegation for complaint and the Defendants are not entitled to assert the truth of the other by way of justification.
I can understand why the Plaintiffs should want to concentrate on the allegation of risk of food poisoning as all ordinary readers would understand it. They might see it as a more real deterrent to the ordinary McDonald's customer than the possibility of drug or pesticide residues. But in my view the allegation of both risks amounts to a common sting of serious risk of poisoning by McDonald's food as alleged in the text in the box to which the description "at worst poisonous" and the headline "What's your poison?" refer.
There were other matters, however, which were not in my view relevant to the allegation of risk of poisoning as expressed in the leaflet.
I do not consider that the words complained of in this part of the case can be taken to refer to any risk of degenerative disease. No ordinary reader of the leaflet, in my view, would think of the high fat or high sodium or low fibre content, for instance, of food as "poisonous", even if it led to a risk of degenerative disease.
On 7th February,1995, I ruled that there was nothing in the leaflet which could be sensibly taken as a reference to bovine spongiform encephalopathy (BSE), however interesting it may have become since the leaflet was written. I will not repeat my reasons here.
The Defendants pleaded that McDonald's food products contained specified additives which were known to have specified, undesirable side-effects, and they called Dr Erik Millstone in an attempt to support this contention. Prof. Wheelock gave some evidence on the need for some of the specified additives for food safety, and the Plaintiffs also called Prof. Ronald Walker, Professor of Food Science at the University of Surrey, and a very considerable expert in the safety or otherwise of food additives.
Dr Millstone's evidence concentrated on the inadequacy, as he saw it, of safety testing of various additives, with some reference to animal studies which had shown adverse effects at doses well above those which occur in food products. His standpoint seemed to be that if an additive could not be proved to be safe at any dose, however high, it should not be used in food. He was "dose blind". There are compounds which are genotoxic, or may be, and for which there is therefore no safe threshold, but I accept Prof. Walker's evidence that these are not used as food additives.
Dr Millstone's evidence did not really set out to establish that any of the pleaded additives caused any of the pleaded side effects at the levels at which they appear in food. I pointed this out and after leaving the witness box Dr Millstone produced an additional report which referred to a variety of investigations, surveys and research reports dealing with adverse reactions generally to food additives. It did not give any further information on the incidence of the pleaded reactions to the pleaded additives, so I did not think that it would help to recall Dr Millstone to give further evidence.
No doubt there are people with particular allergies or idiosyncratic reactions to some of the specified compounds, but they normally know what to avoid. There was some anecdotal evidence that some of the additives might be involved in the intractable, overactive behaviour of some children, but the limited information which I was given came nowhere near establishing this.
If it was necessary to decide the point I would unhesitatingly find in the Plaintiffs' favour on the issues relating to additives, but I do not consider that additives have any relevance to any issue in the case. There is no mention of them in the box which deals with food poisoning and drug and pesticide residues. The only part of the leaflet which could be taken to be a reference to food additives is the reference to McDonald's alleged use of chemicals to achieve conformity of product, and this does not suggest any risk to health as a result.
The Defendants called Mr Brian Lipsett who gave evidence that styrene could be leeched from polystyrene foam packaging or cups into the food or drink which they contained, and then pass into human tissue where its metabolites could be carcinogenic. But Prof. Walker gave evidence which I accept, that there is a lack of evidence that styrene is carcinogenic in humans and that the maximum contamination from food containers would lead to mean intakes which were hundreds of thousands of times lower than some industrial exposures which have not caused a demonstrable increase in cancer incidence.
Again, however, I do not consider that styrene has any part in the case so far as health is concerned. The leaflet does not raise it as a possible cause of cancer, although it deals with certain cancers, and it does not raise it as a cause of poisoning.
As I said on 7th February,1995, when ruling on the question of BSE, the trial was not a public enquiry into the safety or otherwise of McDonald's food or of meat eating generally. It was a trial of claim and counterclaim relating to the contents of the leaflet.
The Defendants introduced evidence that from time to time foreign bodies, in which they included small bits of bone, were found in McDonald's food products, but there was no evidence that anyone had been poisoned or harmed at all by these, although they might in theory cause cooler spots in meat products when they were cooked, with a theoretical risk of insufficient heat to kill food-poisoning organisms near them in the product.
It follows from all this that the one real issue in this part of the case is whether it has been shown that eating McDonald's food involves a serious risk of food poisoning or poisoning by residues of antibiotic drugs, growth promoting drugs or pesticides.
The alleged risk of food poisoning from eating McDonald's food attracted the greater part of the evidence. Residues played a lesser part. So I will turn to food poisoning first.
The undisputed essential background is that meat for human consumption is prone to carry organisms which are or may be pathogenic (causing disease) when consumed by humans. They are all responsible for food-borne disease from time to time.
Two particular well known pathogens (agents causing disease) are organisms of the salmonella group, which are particularly common in the gut of chickens as well as being found in the gut of other animals and of man, and Escherichia coli (E. coli) 0157 which is sometimes found in the intestinal tracts of animals, particularly cattle; but there are many others which were mentioned during the evidence, including campylobacter, enterococci, staphylococci, listeria and clostridium perfringens and clostridium botulinum. E. coli is a natural inhabitant of human and animal intestinal tracts and it will often cause no symptoms whatsoever. Only certain strains, like E. coli 0157 (of which there are, in turn, various types) are enteropathic from time to time. Some of the organisms, like salmonellae, staphylococci and clostridium perfingens, cause food poisoning properly so called if they are allowed to proliferate to sufficiently high levels. Other organisms, like E. coli 0157 and campylobacter, cause food-borne disease. A limited number of those organisms in one's food can cause illness by producing toxins. In practice even the experts referred to disease caused by any of these food-borne pathogens as "food poisoning".
The organisms may be widespread, like salmonella, or have a tendency to be more dangerous, like E. coli 0157, on the less common occasions when they do cause food poisoning, although even then the symptoms can be mild or severe.
Poor slaughterhouse and boning room practices increase the risk of even healthy meat being contaminated with food poisoning organisms in gut contents and faeces, and of contamination being passed from one carcase or cut of meat to another.
Lack of hygienic practices and lack of human hygiene at any stage in the processing, storage, transport, handling, cooking and serving of food products, including meat products, can result in contamination including cross-contamination.
Processing which involves the grinding or mincing and churning of meat for products like burgers has a tendency to spread food poisoning organisms on the surface of a cut of meat throughout a batch of ground meat. The same process will spread the organisms more thinly, of course, which may mean that they will have less effect where the numbers of the organisms ingested are important, as with salmonella, but may mean that they infect more consumers where comparatively small numbers of ingested organisms can have a disastrous effect on the consumer, as with E. coli 0157.
The organisms are sensitive to temperature in two important respects.
Firstly, proliferation of the organisms depends on a certain minimum temperature below which they will not breed or multiply. They grow best at blood temperature of 37C ,and increasingly less as the temperature falls until they grow hardly if at all at 5C. So it is important to store and transport meat and meat products at an appropriately low temperature.
Secondly, sufficient heat over a sufficient period kills the organisms. So good cooking is essential and the last point of defence. Cooking through and through is particularly important where a product is made of ground meat and a contaminated meat surface has been turned into the middle of the finished product. Organisms on the outside of a steak or joint will be immediately exposed to intense heat when cooking begins, but organisms in the middle of a burger or Chicken McNuggett, for instance, will not. So one's rare steak may be good news, but a burger or Chicken McNuggett which has not been thoroughly cooked will not.
Happily the constitution of most people copes well with most organisms which have a potential for food poisoning. We ingest billions of them without ill effect.
However, when food poisoning does occur, the onset of symptoms will probably come many hours or even days after the ingestion of the offending food product. This can lead to great difficulty in identifying the culprit. Only a small proportion of incidents of food poisoning warrant medical attention and even those which do may well not be traced to their source. Such tracing may require detailed and expensive scientific and lay investigations.
The Defendants were able to establish some incidents of food poisoning attributable to eating McDonald's food, but they were very few indeed when compared with the vast number of meals which the First and Second Plaintiffs have sold over the years. The Defendants sought to attribute this to low reporting and difficulty in identifying the cause of food poisoning, and they set out to establish a real risk of food poisoning by pointing at alleged failures in McDonald's practices and those of their suppliers and sub-suppliers.
They contended that the evidence showed that the intensive methods of rearing animals for slaughter for McDonald's products led to "production diseases" which required the routine use of antibiotics and vaccines but which still left a heavy load of organisms, particularly salmonella; that contamination of meat by food-poisoning organisms occurred in the process of slaughter, storage and processing; that as result there was a risk of food-poisoning, the last defence against which was proper cooking; and that there was a potential for undercooking in McDonald's systems, particularly because of the zeal for fast service which, so the Defendants alleged, was put ahead of customer safety in the search for profit.
The Defendants said that all this left great potential for food poisoning of McDonald's customers or even a guarantee of it occurring.
The Plaintiffs defended their own practices and those of their suppliers. They also argued that, say what one would about the difficulty of establishing that food poisoning incidents were attributable to a particular food supplier, the minimal number of incidents attributed to McDonald's food showed how safe it was. The Plaintiffs said that this was in large part due to the rigorously monitored, standard practices of the Plaintiffs' immediate suppliers and particularly of the Plaintiffs themselves in their restaurants: standard practices which do not apply in many restaurants or homes. Nothing would hurt the Plaintiffs more than to give their customers food poisoning, so they took every reasonable step to avoid that happening.
The evidence in this part of the case ranged widely over the practices of the Plaintiffs and their suppliers and sub-suppliers at various stages: the state of the live animals, abattoir practices, storage and transport, testing and processing, and store hygiene and cooking. Nearly all the evidence related to states of affairs well after the period of relevant publication of the leaflet complained of, but insofar as the evidence showed faults in the systems then prevailing, the Defendants were entitled in my view to say that it was unlikely that things were any better at the relevant time because hygiene standards have risen generally with the passage of time. In so far as standards appeared to be good, the Plaintiffs were entitled to say that it was for the Defendants to show that they were worse at any material time.
It was relevant to investigate the various practices which might leave room for a risk of food poisoning, and both sides called a number of witnesses with this in mind. I propose to start with the evidence of the Defendants' main witness, Dr Richard A.E. North.
Dr North is a qualified environmental health officer specialising in food hygiene and safety, with a recent doctorate based on the study of aspects of food poisoning. Since 1992 he has been an Associate to Vernon Wheelock Associates and his curriculum vitae declares that since 1993 he has been food and farming correspondent to Private Eye under the title of "New Muckspreader".
The essence of Dr North's views, as expressed in his July,1993, witness statement, was that the consumption of meat is associated with about 70% of food poisoning outbreaks in which the vehicle of infection (the food consumed) is identified. However, in the majority of incidents the food vehicle involved is not reported. He said that in 1984, 11,000 incidents and 639 outbreaks were reported and the food vehicle was identified in only 198 of the outbreaks.
When animals are slaughtered, meat can become contaminated with gut contents, faeces and urine, eventually leading to bacterial infection. It is the mishandling of meat and meat products which is responsible for outbreaks of food poisoning.
Dr North thought that it was fair to say that chicken and minced meat, as used in burgers, are the worst offenders. He said that it was well recognised that chicken is the main meat product associated with food poisoning and minced meat is a particularly sensitive product. The reason for this was that, on whole jointed meat, food poisoning bacteria tend to be a surface phenomenon. They are readily destroyed by even mild cooking, as with steak. In the minced products, however, the surface area is multiplied, and the surfaces of the meat are mixed into the body of the product, so that contamination is uniformly spread. A more severe cooking process is therefore required to destroy pathogens and the end product is potentially more harmful as a result.
Dr North's July,1993, statement ended with the him saying that the number of irregularities in the procedures of McDonald's and its suppliers, as disclosed by the evidence presented to him, did not suggest that McDonald's was a company which could entirely claim to take its health and safety duties seriously as would be expected of a U.K. based company, although he did not specify the irregularities which he had in mind.
Thereafter, in August,1994, Dr North visited the poultry plant of Sun Valley in Hereford where chicken products were produced for McDonald's. He also visited the burger production facility of McKey Food Service Ltd in Milton Keynes where patties were produced for McDonald's. He visited a McDonald's restaurant in Leeds. At each site every facility was afforded to him.
Dr North's subsequent report of January,1995, was very complimentary about the standard of cleanliness and equipment at Sun Valley; but he was told that the incidence of salmonella in live birds was 1% which grew to an "average salmonella burden in the finished processed meat...in the order of 25 percent."
Dr North's January,1995, report was equally complimentary about the cleanliness, staffing and equipment at McKey.
Dr North's January,1995, report on the McDonald's restaurant which he visited in Leeds read:
"This unit was a large city centre site, offered as a typical city centre development. The unit throughout was spacious, well finished, clean and brightly lit. Equipment and fittings were in good condition and layout presented no serious operational problems. Staff were well-dressed, tidy and clean.
Cooking and food handing was conducted speedily and appeared well organised and I was shown the routine checks carried out to ensure that cooking temperatures were sufficient."
However, Dr North's report went on to say that although the three sites which he visited all demonstrated high standards of what might be called "visual hygiene", it had been well demonstrated that there was not necessarily any correlation between visual standards and microbiological standards. Indeed there could be an inverse correlation between high visual standards and microbiological standards of the food produced. This was demonstrated by the salmonella burden at Sun Valley. The high turnover of produce in McDonald's operation, with high volume production and batching and blending of meat in the Sun Valley and McKey operations, meant that they were intrinsically unhygienic.
Dr North reported that the restaurant products presented little risk. Most food poisoning from salmonella involved the multiplication of a small dose of salmonella in the product to the very large numbers typically required to cause illness in the cooked product. This generally required survival of salmonella through inadequate cooking, or post-cooking contamination from raw food to cooked, and the keeping of that food warm for a period of some hours. There was no evidence from observations of the operation in the single restaurant which Dr North visited that such conditions could arise; but Dr North went on to say that with the large number of sites operated by McDonald's the risk of system failure was magnified. So Dr North concluded: "Having regard to the full nature of the McDonald's operation, therefore, it is hard to describe the systems as inherently hygienic. The high operational standards are necessary and implemented not only to maintain "hygiene" but to overcome defects in an inherently unhygienic and fragile business."
When Dr North came to give oral evidence in chief in March, 1995, he confirmed the parts of his July,1993, witness statement, which I have just summarised.
He gave some general evidence about food poisoning, the importance of avoiding cross-contamination of meat products during meat processing, the importance of control to low temperatures before the product came to be cooked, and the importance of cooking the meat product so that any pathogenic organisms were taken above their "thermal death point" which rose as the number of organisms rose.
He criticised the washing of carcases in abattoirs on the ground that it took focal points of faecal contamination and spread them. He said that it also affected keeping quality adversely by giving a damp environment for the rapid growth of spoilage organisms, although it was arguable that they reduced the number of pathogenic organisms by competition.
Dr North was not asked to confirm his January,1995, report of his findings at Sun Valley, McKeys and the Leeds restaurant. He made some criticism of Sun Valley's buildings and layout, which did not appear in this report. He made some criticisms of McKey's procedures, particularly their large "combo bins" for the transport of meat, which did not appear in his report.
Dr North did, shortly, make the points about high turnover and high volume production, and the difference between apparent and real hygiene, which he made in his January,1995, report, but the whole tenor of what he found at Sun Valley and McKey was different to the impression given by his written report: it was much more critical.
Having seen some of McKey's microbiological test reports, Dr North criticised McKey's microbiological sampling, saying that a limited number of samples were taken in testing for pathogens like salmonella and E. coli. Although this was satisfactory when testing for total viable counts (TVCs) of organisms generally, it was meaningless when testing for specific pathogenic organisms which might well be there, untraced by limited testing.
Dr North cast doubt on the accuracy of testing the temperature inside a burger by inserting a probe. He said that slight variations of the depth to which a probe was inserted could have a considerable effect on the temperature actually measured as it reduced towards the centre of the pattie, although I had difficulty following his point when a McDonald's pattie is so thin. He said that if there was an error it was likely to be on the high side. But internal temperature checks had "some validity". One could not dismiss them altogether, unlike the microbiological testing.
Towards the end of his evidence in chief in March,1995, Mr North made it clear that, by his definition, anything which produced a case of food poisoning was unhygienic. So putting aside the difficulties of reporting, if you served a million meals and had twenty case of food poisoning, to take a hypothetical case, in Dr North's view that would be "a very, very, poor performance.... an unacceptable level of failure....not a hygienic operation." When I pointed out that, eating three meals a day, someone would have to live for a thousand years to suffer food poisoning those twelve times (it is the equivalent of once in a long life of 83 years), Dr North still insisted that a system which produced that result was unhygienic. He said that a one in a million chance of failure was an unacceptable failure rate. A system which produced one case of food poisoning in a million meals, or even ten million meals, was unhygienic in Dr North's view. Even one case of food poisoning in a thousand million meals could not be forgiven by Dr North because "food poisoning is so easy to prevent; fast food organisms (sic) normally are so easy to kill, are so sensitive, so vulnerable...." I could not reduce his view on this matter to absurdity, whatever figures I chose.
Dr North did volunteer, in another part of his evidence, that he sometimes held extreme views.
At the very beginning of his cross-examination by the Plaintiffs' counsel on his first visit to the witness box in March,1995, Dr North said, without any real prodding: "In my experience, you have to work very hard to get food poisoning."
Dr North said that the single defence to food poisoning was cooking, which would often be very much longer than was strictly and technically necessary. Dr North ate meat including undercooked steak, although never intentionally an undercooked hamburger. He frequently ate soft-boiled eggs even though it was common ground that they might contain salmonella. He had never suffered food poisoning, so far as he knew.
Dr North said that there were now 30,000 plus reported cases of salmonella a year. He said that about 40,000 cases a year of campylobacter poisoning were reported; slightly more than salmonella. (He went on to surmise that these figures might be only one in ten or one in a hundred of actual cases, but this was pure guesswork.) That was a large number in itself, but taking all due account of unreported cases it was very small in proportion to the 600 million chicken a year eaten by the 57 million people in this country.
In a paper on the risk of food poisoning from eggs and egg products, which he wrote in 1989, Dr North said: "That millions of meals are prepared and served daily, suggests that millions of cooks, daily, are able to prevent salmonella food poisoning." I note that earlier in the paper he had said that "salmonella has two characteristics which assist control. Firstly, it is relatively easy to kill....Core temperatures of 70C are recommended to ensure salmonella destruction. Secondly, low doses will not normally cause disease.... Raw foods, even if they are contaminated, will tend to have very low numbers of salmonella in them. Such foods will rarely cause disease...."
Dr North agreed that salmonella food poisoning was a small problem in human health terms, although it was a major public health problem in absolute terms.
He said that wherever we went, whatever we touched, the world was absolutely heaving with bacteria to which we had built up many varied defences.
The sort of dosages of salmonella which were necessary to produce a case of food poisoning in the ordinary healthy person, were in order of 100,000 to a hundred million.
He said that within the gut of man and chickens, salmonella, listeria and campylobacter lived happily and harmoniously under firm biological control. It was only when we ate food on which bacteria had multiplied dramatically that we were likely to be made ill.
Thus, in Dr North's opinion, if a chicken McNuggett should leave Sun Valley or its sister company in France, or a hamburger should leave McKey's in circumstances where the bacterial population had not been given the chance to multiply dramatically, there was no serious risk of food poisoning at all, so long as it was not abused between that stage and consumption.
Dr North was not being asked about campylobacter or E. coli 0157 at that stage, and he later said that the dosage of campylobacter or E. coli 0157 organisms required to cause illness might be quite low, by which he meant that reports had been made of 100 to 1,000 organisms ingested causing overt signs of disease. These were, relatively speaking, very small doses.
He said that campylobacter enteritis was a poorly understood disease and it was not even certain that the bulk of cases were food-borne. Campylobacter was all around us. His report made in January,1996, before this return to the witness box, contained a "Note on Campylobacter" as follows:
"From my knowledge of the meat and poultry industries, I am aware that the causal agent of campylobacter enteritis is commonly found in poultry and red meat, to the same or higher levels than salmonella spp. The organisms in question are not heat resistant and any heat profile intended to destroy salmonella will also despatch campylobacter spp. Moreover, there is no evidence that campylobacter spp can multiply in foods.
However, unlike salmonella, campylobacter spp are known to cause illness at very low dose rates, similar to those attributable to E. coli. On this basis, it has been common in the past to consider campylobacter enteritis a food-borne disease rather than the classical food-poisoning. This means that, unlike salmonella, which is typically transmitted by high numbers of bacteria and thus usually requires an element of temperature abuse in foods for multiplication to occur, no such abuse is necessary for transmission of campylobacter enteritis. Should the organism be present in small number in a meat burger, which is very possible, and sufficient core temperature not achieved, disease transmission is possible."
Nevertheless, speaking of food poisoning generally, Dr North said that the number of food poisoning cases as a percentage of the number of meals eaten was so small, both in 1989 and 1995, as to be statistically insignificant. That applied to salmonellosis especially and to food poisoning cases generally.
Speaking in March,1995, Dr North said that the number of confirmed cases of E. coli 0157 food poisoning in this country were in the low hundreds each year although there might be many more low level infections which might not be identified as caused by that organism. I do not know whether the recent E. coli 0157 outbreaks have increased this figure significantly. While they have rightly caused concern I do not know whether the number of sufferers will take the 1996 and 1997 figures above the low hundreds, because from what I have read the concern has understandably been related to the severity of symptoms, on occasions fatal, in the recent outbreaks, as much as the overall numbers of sufferers. [Since writing this part of the judgment, I have read that last year's outbreak in central Scotland affected 500 people of whom 19 died; that excluding outbreaks there were about 250 isolated cases last year, and that this year such "background" cases are running at about one a day.]
Dr North said that E. coli 0157 was not particularly heat resistant. It was easily killed. It was quite difficult to keep it alive in laboratory conditions. Even a relatively benign or relatively non-rigorous cooking should be more than adequate to destroy E. coli 0157. Probably anything from about 60C was sufficient, depending upon time. A core temperature of 70C would kill salmonella and E. coli was slightly more fragile than salmonella. The closer the product was heated to the point of consumption the less the risk of some intervening contamination.
On his return to the witness box in May,1996, Dr North repeated his view that McDonald's daily grill calibration checks were not a reliable assurance of the minimum temperature of burgers, required to kill pathogens, and that checking internal temperatures with probes was difficult and very unreliable so that McDonald's procedures and equipment would not guarantee the persistent attainment of target temperatures.
At no stage did Dr North actually criticise the times or temperatures at which McDonald's food products would be cooked if its systems were adhered to, although Mr Morris tried hard to lead him into doing so on his return to the witness box in May,1996. In my view, obtaining the witness's impromptu approval of cooking times and temperatures, in excess of those applied by McDonald's, recommended in a report put to Dr North on his recall without prior notice of the particular point to be made, as Mr Morris did, was unimpressive, especially since Dr North said that he did not wish to change any of the evidence which he gave in March,1995, on the generalities of food hygiene and cooking etc., which included no criticism of McDonald's cooking times and temperatures.
Dr North realised as well as anyone, in my view, that proper cooking is the last and most real line of defence against food poisoning or food-borne disease. He knew the essential practices of McDonald's and their suppliers, and their cooking times and temperatures. It would have been easy for him to say that they were inadequate if that was what he thought.
Although Dr North criticised some of McDonald's practices, he did not suggest that what he had said generally about the low risk of food poisoning did not apply to McDonald's food. Indeed he said that he did not think that salmonella food poisoning from McDonald's was a major risk.
He would be content to say that he would not waste a lot of time on it or all food poisoning, save for food poisoning by E. coli 0157. He would not say that of E. coli 0157, but in March,1995, he did not really explain why his view of the risk of E. coli 0157 was any different. He said that it seemed to be rarely found. He recalled an American survey where they tested 600 cattle and found four that were affected.
Dr North accepted that anaerobic pathogens such as clostridium botulinum and clostridium perfringens were unlikely to have a bearing on McDonald's operation.
When Dr North returned to the witness box in May,1996, he referred to a Government advisory committee report which said that E. coli 0157 was isolated from 84 out of 2103 cattle (about 4%) presented for slaughter at an abattoir in Sheffield during July and August,1992. E. coli 0157 was isolated from about 30% of the carcases of animals in whose rectal contents it had been isolated and from 8% of animals adjacent on the production line, from which the organism had not previously been isolated.
The most serious outbreak or incident of food poisoning involving McDonald's in this country occurred in Preston in 1991. The Second Plaintiff admitted that a number of people suffered food poisoning after eating burgers at its Friargate restaurant. A public Health Laboratory Service report concluded that the problem may not have been completely restricted to that single branch or to a single hamburger chain. The cause of the food poisoning outbreak was under-cooking of hamburgers contaminated by E. coli 0157 bacteria.
Dr North commented on this outbreak, saying that it showed that although the store in question presented the same clean, "hygienic" appearance as other McDonald's stores, it was not in fact hygienic because it had failed to prevent a food-borne disease. It represented a lack of hygiene which should have been avoided in the light of the lessons to be learned from two E. coli 0157 outbreaks in Oregon and Michigan in 1982.
Dr North pointed out that after the 1991 outbreak McDonald's demanded and their pattie producer, McKey, gave assurance that their patties were E. coli 0157 free, but an evaluation of McKey's sampling protocol showed that the frequency of sampling was so low, in comparison to the vast amount of meat handled, that the exercise had no realistic chance of finding E. coli 0157 even if it was present in quite large numbers.
The scale of McDonald's operation in the U.K., taken with the youth of its employees, working pressures and equipment problems meant that "the system - taken as a whole - might be regarded as flawed, containing in-built inadequacies and systematic fragility to the extent that under cooked burgers may be sold from time to time."
However, Dr North did not conclude that there was a very real risk of E. coli 0157 poisoning from McDonald's burgers. He concluded that his view was that "the destruction of potentially pathogenic organisms in all their products cannot be guaranteed"; that "potentially harmful micro-organisms were capable of being transmitted through the "hygienic" production system, and finally that "the McDonald's chain in the U.K.... is apparently willing to convey the impression of being hygienic without the substantive controls necessary to ensure that state".
Dr North accepted that to cause food poisoning in its customers tended to be commercial suicide for a food caterer.
Dr North was an unsatisfactory witness in a number of respects.
He made a severe criticism of McDonald's in the last paragraph of his July,1993, statement without giving the basis for it.
The tenor of this oral evidence in March,1995, on conditions at McKey and Sun Valley differed in real respects from his January,1995, report. He showed a similar variability or lability of view when he came to residues with which I have yet to deal.
He seemed to be trying to turn high standards of visual hygiene against McDonald's or at least discount them, when I would have thought that they were a good start, albeit only a part of the picture.
His evidence that a system was unhygienic if it produced any incidents of food poisoning, however many meals it produced overall, set totally unreal standards of hygiene, in my view. It was one of Dr North's extreme views. Extreme views from an expert witness are unsettling.
I understand Dr North's criticism of high volume production with its speed of slaughter and its batching and blending of meat, but I could not understand Dr North's critical view that the large number of sites operated by McDonald's magnified the risk of system failure, unless he meant that one would have more incidents of system failure for the same statistical risk with a larger operation. I understand that the more mouths you feed the more actual incidents of food poisoning there will be for the same statistical risk, but I do not see how it increases the risk itself, to the customer. Dr North did not explain how it does so.
When reporting on the spreading of organisms in the meat grinding process, Dr North did not volunteer the compensating factor that those food poisoning organisms like salmonella which need large numbers in small quantities of meat in order to have ill effect, are diluted throughout the minced meat product.
He made no express criticism of McDonald's pre-cooking food storage or handling or temperature control or cooking procedures although the Plaintiffs' evidence on those matters had been given before he completed his oral evidence. Yet these are particularly important matters in assessing the risk of food poisoning, since food storage and temperature control systems are important to the question of proliferation of organisms, food handling systems are important to the question of cross-contamination and cooking is the most important risk reducing factor or all.
With those matters in mind, I would have looked very critically at any view expressed by Dr North that there was a very real or serious risk of food poisoning in consuming McDonald's food; but he never expressed any such view.
He thought that you had to work very hard to get food poisoning. He said that the number of food poisoning cases as a percentage of the number of meals eaten was so small as to be statistically insignificant. Although Dr North distinguished between the risk of salmonella infection and infection by E. coli 0157, those two comments were applied to food poisoning generally, which includes poisoning by all food-borne organisms. Dr North did not say that his general comments did not apply to McDonald's. He specifically said that salmonellosis was not a major risk at McDonald's. He was critical of McDonald's over the 1991 Preston E, coli 0157 outbreak, but in my judgment his view that the outbreak showed that McDonald's system was not hygienic can carry little weight in the light of his extreme view that any system which allowed any incident of food poisoning was not hygienic however vast the number of meals which it supplied.
Dr North's ultimate conclusion was that McDonald's could give no guarantee, which must obviously be true of any food supplier. He passed up the opportunity of saying that the outbreak showed that there was a very real risk of food poisoning from consuming McDonald's food.
In my judgment even Dr North, predisposed as I believe he was to criticise McDonald's, and coming out more strongly against them in his oral evidence than he had done in his written statement and reports, could not bring himself to give evidence which amounted to saying that there was a very real risk of food poisoning from McDonald's food, let alone that McDonald's hamburgers were very likely to cause food poisoning. It is true that I had not found the meaning of the leaflet in this respect at the time when Dr North gave evidence, but it must have been obvious to everyone that the Defendants would win on this aspect of the case if they could call convincing evidence of a very real risk of food poisoning from eating McDonald's food and that, subject to the argument on meaning, they would lose if they could not; and Dr North was their principal witness, available to give the necessary evidence if he honestly could.
If Dr North could not give evidence that there was a very real risk of food poisoning from eating McDonald's food, was there any other convincing evidence to this effect?
I think not, but I will refer to some of the evidence which was called, following the chain of supply.
Before I do so it may be helpful to say something about testing for organisms since a sizeable amount of the evidence in this part of the case related to the extent to which McDonald's sub-suppliers and suppliers, particularly abattoirs and meat processors, test for micro-organisms. It appeared to be the Defendants' case that testing at various points in the supply chain was not adequate to isolate pathogenic organisms or was inadequate generally and that this led to a risk of food poisoning.
It is important to remember that no meat or other food is completely free of contamination by bacteria. We do not live in a sterile world.
Most testing for microbiological organisms is of total colony counts (TCCs) or total viable counts (TVCs) of organisms, whether pathogenic or not. But most bacteria are spoilage bacteria and Prof. Michael Jackson of the Division of Environmental Health at the University of Strathclyde said that microbiological tests for TCCs did not tell you the number of pathogenic micro-organisms. While no meat could be free of contamination by bacteria, TCCs gave an indication of the level of contamination. So they were of some value so far as human safety was concerned, although the numbers were enormous in quite normal circumstances: hundreds of thousands or millions per gram or square centimetre.
Mr Donald Bennett, a self-employed environmental health consultant, appeared to think that TCCs were no help so far as food safety, as opposed to food keeping quality (shelf life), was concerned. He said that spoilage bacteria were more vigorous than pathogenic bacteria, to the extent that the more spoilage bacteria there were, the more likely they were to kill pathogenic bacteria which did not survive particularly well in the presence of spoilage bacteria.
Mr Bennett said that it was not standard practice in the meat industry to carry out testing for pathogens. The protection was to cook the meat properly.
Ms Marja-Liisa Hovi, a veterinary surgeon with further qualifications in red meat hygiene, said that measuring the TVCs served the purpose of monitoring the biological situation but it was misleading to use it as a proof of the safety of meat or of surfaces upon which meat was placed. In her view it had to be done fairly regularly, that is weekly, if it was to be effective. Random testing once a month was not really useful because it told you about the particular rather than the general state of affairs. But Ms Hovi said that she was not even saying that it should be done at all. It was just a method which you used on a practical basis to monitor and supervise the cleaning. If you took readings and they were poor, that meant poor hygiene and poor hygiene meant poor public health.
Dr North said that TVCs were so notoriously unreliable and variable that they had very limited use. That is why the HACCP (Hazard Analysis Critical Control Point) system had come in, in an attempt to keep levels of organisms within tolerable limits. The best use of TVCs was to see trends over a period of time. High TVCs were a good trigger for the examination of systems.
My conclusion on the evidence which I heard is that TVCs and TCCs are only indirectly useful as indicators of food safety or lack of it in that they are indicators of the general level of hygiene standards in a plant. They are no indication of the actual pathogenic loading or level, but there are practical difficulties with testing for pathogenic organisms. Unless the testing is extensive to an impracticable degree the tests will only tell one that the sample itself is free of a particular pathogenic organism, which might give an impression of safety which is not there, taking one's eye off the need for appropriate cooking. Tests for an organism like salmonella in chicken would reveal many positive readings. So one would then have to ignore them or destroy a lot of meat which would be quite safe to eat provided it was cooked properly.
I would not fault McDonald's suppliers for not carrying out frequent testing for pathogens, and I would not see any risk in occasional high readings of TVCs or TCCs. If they persist, that might be another matter.
No statutory limits for TVCs or the pathogenic organisms mentioned here were in force at the time when the relevant witnesses gave evidence.
The other general form of monitoring, which affects the risk of food poisoning apart from testing for organisms, relates to the temperature of meat, and a considerable part of the evidence in this part of the case related to the temperature of the meat products at various stages, because the Defendants hoped to demonstrate a risk of food poisoning if the temperature of meat for McDonald's could be shown to be awry, i.e. too high at any stage before cooking or too low after cooking.
Ms Hovi thought that 7C was a sensible limit for boning, storing and transporting meat: a good balance between absolute safety and economic practicality. E.coli 0157 would not proliferate below that temperature. Some organisms including salmonella grew below 7C, but very slowly, and salmonella would not generally grow below 6C.
The first stage in the supply chain of meat products is, of course, the live animal, but save in respect of chickens at Sun Valley and pigs at G.D. Bowes, I heard little evidence of the condition of animals before they arrived at abattoirs. This probably mattered little from the point of view of food safety because salmonella and E. coli, for instance, including E. coli 0157, are found in the gut of healthy animals. The real risk, if there is a risk at all, arises from contamination at and after the point of slaughter.
There was considerable investigation of the slaughter procedures at Sun Valley Poultry Ltd, G.D. Bowes & Sons Ltd, Midland Meat Packers, and Alec Jarrett Limited. Sun Valley accounted for chicken meat products and G.D. Bowes for most pig meat products, but Midland Meat Packers (MMP) and Jarrett were only two of a number of abattoirs which have supplied boned beef to McKey Food Service Ltd for processing into beef patties for McDonald's burgers.
I have already said that contamination of meat at abattoirs by gut contents or faeces contamination, with pathogenic organisms, is a matter of considerable concern.
An animal may come into the slaughterhouse with faeces on its hide which may be transferred to the carcase in one way or another. Even though the oesophagus and the rectum are normally tied before evisceration, from time to time they burst open or the guts may inadvertently be cut causing faecal contamination.
The question is the extent to which abattoir practices lead to levels of contamination which are sufficient to present a risk to human health and which remain undetected. The better the separation of the "clean" side from the "dirty" side of an abattoir, the cleaner the slaughtermen and their clothes and the more often their implements are sterilised or, more accurately, sanitised, the less the risk.
Save for the visit by Dr North to Sun Valley, the Defendants were not given facilities to inspect slaughterhouses which have supplied meat to those who process it into food products for supply on to McDonald's.
They were, however able to call Ms Marja-Liisa Hovi, who worked as an official Veterinary Surgeon at the abattoir owned and operated by Alec Jarrett Limited in Bristol for fourteen and a half days spread over three calendar weeks in April, 1994. She was employed by a private veterinary practice which had a contract with the Local Authority which was responsible for meat inspection, to provide official veterinary services at Jarretts, to be responsible for the relevant regulations and what came out of the abattoir from a public health point of view, and to supervise hygiene standards and the full-time meat inspectors who worked there. She had previous experience in E.C. approved abattoirs which helped her to obtain the job. Jarrett is a medium to large through-put, E.C approved abattoir and cutting plant. It supplies beef to McKey Food Services Ltd which processes it into patties for the Second Plaintiff.
When Ms Hovi worked at Jarretts it was supplying McKey's Milton Keynes plant with about 20,000lbs of beef cuttings a week.
The Plaintiffs called Mr Donald Bennett, who challenged many of her allegations. Mr Bennett was not employed by Jarretts. He is a self-employed consultant, well qualified and very experienced in environmental health, particularly hygiene controls and legislation in the meat industry. He had carried out advisory work for Jarretts since August,1993, visiting their premises on occasions including a visit or visits in March,1994, just before Ms Hovi's work at Jarretts, and carrying out a hazard analysis exercise and the identification of critical control points (HACCP) which was finally put in place after Ms Hovi left. HACCP is not a statutory requirement in abattoirs.
The Plaintiffs produced what were said to be plans of Jarretts premises and a number of documents.
I had the opportunity to observe Ms Hovi giving evidence for some time. She impressed me as an honest witness who gave credible detail to support her account of matters, although I think she was mistaken in her recollection or drew the wrong conclusions from what she observed, from time to time. She obviously had cause to remember events at Jarrett's better than she might otherwise have done because of the circumstances in which her employment came to an end which I see no need to rehearse. She was at Jarretts for a limited period, but she was able to observe what happened at Jarretts when there could be no possibility of performance being improved for the benefit of a visiting expert witness, so I will describe her most significant criticisms.
The slaughtermen got changed in a Portacabin outside the abattoir building. There were no boot washes at the entrance to the abattoir building.
A slaughterman used a pithing rod to put through the hole in the stunned animal's head and destroy its brain stem and spinal cord. There was no steriliser for the pithing rod when Ms Hovi was there. Between uses it was stuck between water pipes on the wall.
The pithing rod went into the spinal cavity and, when the carcase was later split by the carcase saw, any dirt inside it could spread over the carcase.
The man who bled the slaughtered cattle often failed to sterilise his knife or wash his hands between carcases.
There was no steriliser for the hide puller chains which were used on animal after animal, touching each carcase.
Ms Hovi said that there was a shortage of facilities for disinfection of hand tools and knives generally, leading to contamination of the carcases and the meat. Moreover even when washing and sterilising facilities existed, the slaughtermen tended not to use them.
A bin trolley containing front feet and hooves was wheeled to and fro across the line from the clean side to a room on the dirty side. The bins were not cleaned. Attempts were made to wheel the bins across the line during breaks but it was often done before the line had been cleared of carcases which were close together, so the trolley bins might touch carcases.
All carcases were washed by a man with a water hose about twice the pressure of a garden hose, before inspection by a Meat Inspector. This could lead to Inspectors missing pathological changes. It led to airborne contamination. It did not wash contamination off. It spread and pushed it into crevices in the meat whereas it should have been trimmed off leaving a clean carcase.
I have already given Dr North's view of carcase washing. Mr Bennett's view of carcase washing conflicted with Ms Hovi's and Dr North's. He said that carcase washing by high pressure spray was common practice in the industry. Washing before inspection was not forbidden and he was not aware of any pathological conditions which were likely to be missed by inspectors because of carcase washing. He did not believe that it led to airborne contamination. He saw some advantage in washing the carcase and thus completing the production process before final inspection.
Mr Timothy Chambers, the impressive young Quality Assurance of Midland Meat Packers, said that they tried not to use water to wash carcases because there was an argument that a pressurised spray could make an aerosol of bacteria.
Prof. Jackson said that carcase washing would remove surface contamination. If there was gross contamination the carcase should be trimmed. But later he said that water sprays should be avoided if possible because contamination could splash off onto something else. He did not think there was a risk of contamination being embedded in a carcase by the force of the spray.
In the light of Mr Chamber's and Prof. Jackson's evidence, taken with Ms Hovi's, I consider that carcase washing might spread bacteria in one way or another.
Ms Hovi said that there was no separate, chilled detention room for condemned or detained carcases. This often led to a situation where detained carcasses were kept in the same chiller with carcases that had passed inspection. This in turn could easily lead to contamination by contact or to airborne contamination. Because of fast through-put at the abattoir, chillers were over-filled leading to contact contamination, especially when carcases were wet. Over-filling of chillers also led to insufficient chilling. The walls and ceilings of the chilling rooms were in poor condition.
Mr Bennett's view was that "contact contamination" was unlikely from clean carcases which had just been inspected and health marked. He agreed that it was essential for proper cooling for air to circulate in the chillers, but the rails were sufficiently far apart for air to circulate between the lines.
Ms Hovi said that the speed of the slaughterline at Jarrett's was significantly higher than MAFF recommendations. This meant that things could not be done as they should have been. On occasions she slowed it down by delaying the stunning of the next animal.
Ms Hovi said that although there were facilities for sterilising smaller knives in the boning hall, there were no facilities for sterilising larger implements like the bigger knives, metal gloves and axes which were used.
Ms Hovi spoke of lack of microbiological testing at Jarrett's. She said that to her knowledge Jarretts had no laboratory at its plant, nor did it use the services of any outside laboratory as required by McKey, to her knowledge.
She said that she was told this by Mr Bob Jarrett and a Mr David White but I think that she must have been confused about what she was told, because I have seen standard written reports by British Food Laboratories (an independent laboratory outside Jarretts) on regular microbiological swabs or samples done before, during and after Ms Hovi's time at Jarrett's. It may be that Ms Hovi asked if laboratory tests were done on the premises, that she was told that there was only a room where fat analyses were done and that she assumed that no microbiological tests were being done at all. She agreed that it made no sense that they should say no tests were being done when they were being done. The samples were taken and the tests were done once in or about the third week of each month.
The test analyses were done on swabs or samples taken from walls, cutting blocks, tables, equipment and meat in chillers and water from various sources at 0545 before the day's work started; and the total viable counts (TVC) of bacteria were graded from A down to E. The Es generally related to cutting blocks and trim tables.
Ms Hovi said that the cutting surfaces in the boning hall were polyvinyl. They were cut and worn and very difficult to clean. She said that she would accept that A,B and C grades were all right, but looking at the counts with E grades, they would prompt her into action. To her, they would mean that cleaning was not done in the way that it should have been done. In her view the trim table swab analyses were very high. Ms Hovi thought that the surface swab analyses in the boning hall were very poor and she did not see any improvement over the period of the reports disclosed in 1994.
Mr Bennett disagreed. He thought that the counts with E grades were still acceptable but not quite as good as Bs and Cs. He thought that the counts indicated that the plant was perfectly satisfactory from the point of view of handling fresh meat. The Es would draw attention to themselves. The TVCs over 10 million would concern him as a manager but not for public health. You would always get microbial load on a cutting table. You must refer to the microbial load on the meat and those TVCs were everyday. Above a certain level they might be unacceptable to a customer but in practice the sort of figures shown in the Jarrett results were not anything to get excited about.
So there was conflict between Ms Hovi and Mr Bennett as to the possible significance of the TVCs at Jarretts. Ms Hovi did say that there were no fixed limits on TVC counts and that she was not a specialist in food hygiene, whereas Mr Bennett clearly was.
I have already said that TVC counts are no indication of pathogenic levels of bacteria and that the bacteria are mostly spoilage bacteria, and I am not satisfied that the TVCs at Jarretts were cause for concern so far as food safety was concerned.
Mr Bennett said that Jarretts did not test for E. coli 0157. It was not standard practice in the meat industry to test for pathogens. Ms Hovi also said that Jarretts did not test for E. coli 0157. This did not concern her, however, as such tests are not widely done, although the test was required by an addendum to McKey's specification.
In fact both Mr Bennett and Ms Hovi were wrong in their recollections. I was shown written reports of monthly tests for E.coli 0157 done by Bristol Food Laboratories with nothing detected in any of them. After seeing the Bristol Food Laboratories Report, Ms Hovi accepted that she was wrong to say that there was no sampling for E.coli 0157. But she said that all that the monthly tests would establish was that there were no E.coli 0157 organisms in the particular piece of meat which was tested.
This comment is clearly well founded in my view, but it is clearly impracticable to test every piece of meat for E. coli.
Ms Hovi said that on a number of occasions during her second and third weeks at Jarretts, she took the temperatures of meat in the boning hall and that as a rule they were well above 7C, contrary to E.C. regulations and to McKey's specification that cutting and boning must not take place at higher than 7C, although there was no statutory maximum temperature. She said that the slaughterhouse and cutting premises operated with a considerable overcapacity, and the boning hall was far too small and overcrowded, causing the meat to be cut and despatched at temperatures higher than 7C, leading to an added risk of contamination and bacterial growth. Ms Hovi measured the temperature in the boning room herself several times a day.
The statutory temperature limit is 7C at loading (not boning), but according to Mr Bennett individual customer requirements vary between 4 and 6C to ensure the keeping life of the meat.
The McKey specification was that fresh meat stored in its octobins (eight sided containers) awaiting transportation, should be less than 4C.
Ms Hovi was shown what appeared to be records of on line half hourly quality control checks of meat temperatures taken in the boning room daily, including days when she was working at Jarretts. The temperatures were generally between 1C and 4C and not above 7C. She said that she never saw such documents when she was at Jarretts. She said that she measured muscle temperature when the carcase was cut with a bone saw. She discussed the temperature with a supervisor and he did not offer to show her documents like those shown to her in Court. Mr Stewart Jarrett and Mr Robert Jarrett came over and discussed her findings. She was shown Boning Room Controls which recorded meat temperatures taken on the same three days as the meat came out of the chillers and into the boning room. The temperatures corresponded to those on the Quantity Control checks.
Ms Hovi was shown Process Control Sheets, Dispatch and Box Chill, with McKey marked as the Customer/Destination. The temperatures were recorded on the sheets which were dated with several dates between February and December,1994. She accepted that it was likely that the meat was in McKey octobins. The temperatures recorded were generally between 1C and 4C although there were some at or about 5C and one at 6C.
Again she had no knowledge of such documents and they did not cause her to modify her evidence. She said that she made her measurements every day from her second week, and she recorded them, although she accepted that she did not measure meat going to McKey because she did not have the instrument which was required to take core temperatures of meat in large bins.
Although no evidence was called to prove the making of the entries in the Jarrett documents I see no good reason to doubt that they are genuine and I can only conclude that it was the practice of the boning room supervisor to take the temperature of meat at the door from Chill Room No.1 to the boning room every half hour throughout the day, and to record the temperature on sheets in the form which I have seen, and that it was the practice to take the temperature of meat in McKey octobins before it was despatched to McKey and to record those temperatures on forms which I have seen. None of the temperatures recorded were as high as 7C although some were over the McKey standard of 4C.
On the other hand I accept Ms Hovi's evidence that on a number of occasions she took the temperature of meat going into the boning room. It was over 7C and on occasion as high as 14C.
I do not consider that the form of the Jarrett documents need be inconsistent with Ms Hovi's evidence.
In my judgment the meat which she tested probably consisted of quarters which had been cut from half carcasses in the area between Chill Room No.1 and Chill Room No.4 and then taken directly into the boning room - the rear quarters then being despatched to French customers who did not want fore quarters. Those half carcasses had not been in a chiller for 48 hours before the further division into fore and hind quarters so the fore quarters were over 7C when they went into the boning hall.
However, I believe that the meat which went through the boning hall en route to McKey's octobins had been chilled for 48 hours previously as had the meat tested by the supervisors at the door from Chiller Room No.1 to the boning room, and it would be under 7C as it went through the boning room. Ms Hovi accepted that this was possible.
McKey's meat was transported on a refrigerated lorry. Ms Hovi imagined that McKey would use a boring machine to take the temperature of the meat. She would imagine that they would reject it if it was significantly above the specified temperature. Mr Bennett said that McKey carried out their own intake temperature checks and where the temperature of meat was adrift, in his experience they rejected the meat. I accept that it is possible that some meat may have been at temperatures higher than McKey's meat at various stages including occasions when it left the plant after being chilled for twenty four rather than forty eight hours, but I am concerned with McKey's meat because that is what was destined for McDonald's. In my view there was no cogent evidence that the meat despatched for McKey was over 7C as it came out of Chiller Room No.1 and went through the boning room and was stored in McKey's octobins, and there was certainly no cogent evidence that it was not brought down to under 7C if not always 4C in McKey's octobins.
Ms Hovi said that meat was minced in a room off the main boning hall at Jarrett's. She said that remnants of the mince were left in the machine which was not properly cleaned before re-use on the next mincing shift. This cannot possibly have affected the safety of McDonald's products since no minced meat went from Jarretts to McKey.
At the end of the day what matters are Jarretts' practices as they affect the safety of McKey's food products for McDonald's.
Despite her criticisms of Jarretts, Ms Hovi was, like Dr North, rather restrained in her conclusions, saying that she had public health concerns so far as Jarretts was concerned; that it was not a well-run abattoir so far as hygiene was concerned; that the possibility of cross-contamination and growth of bacteria on the carcases was increased; so she could not say with full confidence that the procedures were the best possible.
She never actually said that meat leaving Jarrett's was unfit for human consumption or unsafe. If it was unfit or unsafe Ms Hovi surely would have stopped it as she said she stopped a lorry into which meat at a temperature of 10C had been loaded, but not for McKey's.
Mr Bennett expressed the view that the hygiene practices and procedures at Jarretts accorded with good industry practice and were typical of an EC licensed abattoir. He said that meat leaving Jarretts was perfectly sound and perfectly fit for human consumption. Mr Bennett thought it important to distinguish between theoretical hazards and a degree of risk. A theoretical hazard might involve an extremely low risk in fact.
He made the point that an Official Veterinary Surgeon like Ms Hovi had the responsibility for ante mortem inspections of the animals, post mortem inspection, and the supervision of hygiene requirements as laid down in the regulations. The OVS has considerable powers to secure compliance with public health requirements and hygiene procedures, by suspending operations or ordering production to slow down. I could understand an OVS like Ms Hovi on a short contract being reluctant to suspend operations just because she was uneasy about some practices, but Ms Hovi was clearly a determined woman, and I do not think she would have hesitated to take the necessary action, however drastic, if she thought that Jarrett's was sending out meat which presented a real health hazard.
Mr Bennett said that there were very few E. coli 0157 outbreaks when one considered the population of the country and that red meat was involved in a miniscule number of salmonella cases. He gave this evidence before the recent outbreaks of E. coli 0157 poisoning, but no doubt Ms Hovi was able to keep a sense of proportion, weighing what she said against a small risk overall.
The other abattoir supplying deboned beef to McKey Food Service for processing into McDonald's beef patties, about which I heard evidence, was Midland Meat Packers.
Prof. Jackson visited the abattoir of Midland Meat Packers at Crick on 12th January,1994. He worked as an Environmental Health Officer before going into academic life and he had many years experience of abattoirs. His particular experience is in food premises and the way in which diseases are transmitted, rather than food microbiology itself, although he has a biology degree. MMP's Quality Assurance manager, Mr Timothy Chambers, accompanied him. The company appeared to be complying with all the hygiene and safety requirements for a modern slaughtering plant. There were daily hygiene checks and daily microbiological monitoring of the premises. He rated the plant highly satisfactory for the point of view of the end product for human consumption.
Mr Chambers gave evidence about MMP's procedures so far as they relate to food safety as well as animal welfare. I thought that he was well aware of the risk areas so far as possible contamination in the plant was concerned.
Mr Chambers said that among other tests deboned meat was tested for TVCs mostly, but also for specific organisms including salmonella and E.coli 0157. They had been testing for E.coli 0157 since McKey insisted on it, but they had never isolated it. They found salmonella on occasions. He said that MMP's other customers had similar TVC standards to McKeys.
The acceptable temperature of the meat for deboning was 4 to 7C. It could climb above 5 or 6 or even 7C at the deboning stage but it then went straight into a chiller and meat for McKey left MMP's plant in MMP's refrigerated vehicles at under 4C with the container set at zero for a chilled load. The temperature was checked at despatch and monitored during the journey to McKey's plant at Milton Keynes and Scunthorpe. They would not send meat chilled to 4.5C to McKey because it would be rejected when it got there. This appeared to be so even though the temperature might fall further on the journey.
Every MMP employee had an environmental health officer's certificate in food hygiene won by examination, and geared specifically to MMP's operation.
MMP had no say in whether a carcase or part of it was condemned by a Meat Inspector working on their line.
Mr Chambers accepted that there could be failures in hygiene procedures such as a failure to sterilise knives between carcases, but it seemed to me that MMP's standard hygiene procedures were beyond reproach.
It is important to remember that large concerns like MMP and McKey are not just supplying meat or meat products for McDonald's. They supply large supermarket chains and other customers, often in retail packs which go straight to the individual shopper. So any problem which McDonald's had might well show elsewhere, subject to failures in McDonald's own restaurants or by their distributors, Golden West Foods.
A number of other abattoirs supply beef to McKey for processing into McDonald's beef patties, but I heard no evidence of their practices and I am not going to speculate about them.
I have already referred to Dr North's report on Sun Valley's facilities. Its Primary Processing Plant at Hereford, where chickens were slaughtered, plucked and deboned, was inspected on 10th January,1994, by Prof. Jackson.
Prof. Jackson said that he was told that about 1_% of the birds at the plant were rejected as unfit for human consumption for reasons of being dead on arrival, diseased or damaged during processing.
Prof. Jackson's overall impression was of a modern, well run slaughter operation. Quality control procedures were in place throughout the operation to ensure a quality product free from contamination. There were laboratory facilities. He rated Sun Valley highly satisfactory from the point of view of food safety of the end product for human consumption.
On the 11th January,1994, Prof. Jackson visited the pig abattoir of G.D. Bowes & Sons Ltd, which he found to comply with all hygiene and safety requirements. He rated it highly satisfactory from the point of view of safety of the end product for human consumption.
Turning to the processing of the deboned meat, Prof. Jackson also inspected Sun Valley's Deboned Meat Processing Plant on 10th January,1994, where he was impressed by the standard of equipment and hygiene and records. He rated the plant highly satisfactory from the point of view of safety of the end product for human consumption.
The principal food poisoning organisms carried by chickens are salmonella and campylobacter.
Dr Mark Pattison of Sun Valley Poultry Ltd said that Sun Valley tested for various organisms. It did not test for salmonella because they knew that it could be found. It was present in the intestines of 1% of their chickens and 25% of the pieces of deboned meat in the plant, but they could not quantify the number of organisms. Salmonella flourished best in moist conditions between about 37C and 41C, 41C being the bird's body temperature, and proliferation was very unlikely in the processing factory where the maximum ambient temperature was 15C. Meat went into the chiller at 18C and came out at about 4C.
Dr Pattison said that campylobacter was quite a common organism in chickens. It was found as a normal contaminant of their intestinal tracts. A 70% isolation rate would be typical on raw poultry and Sun Valley chickens would be no different.
Prof. Jackson inspected G.D. Bowes' processing plant on 10th January,1994. Like the slaughter plant it complied with all hygiene and safety requirements, and he rated it highly satisfactory for the point of view of food safety of the end product for human consumption.
McKey Food Service attracted the most attention among the meat producers which supplied the Second Plaintiff's restaurants.
Prof. Jackson inspected its meat processing operation in Milton Keynes on 12th January,1994. I have no reason to believe that its plant at Scunthorpe was significantly different. It appeared to him to comply with all the hygiene and safety requirements for a modern meat processing plant. He thought that the premises and operations were of the highest standards of such plants. There were well equipped laboratory facilities to carry out physical, chemical and microbiological analyses. He rated the plant highly satisfactory from the point of view of food safety of the end product for human consumption.
Prof. Jackson returned to the plant on 19th August,1994, to accompany Dr North on his inspection. There was no significant difference between what he was shown and saw in January and what he and Dr North were shown and saw in August.
Prof. Jackson said that he thought McKey's microbiological guidelines, employed in the microbiological evaluation of McDonald's hamburger patties were sensible, bearing in mind that they applied to tests on raw meat. The guidelines were that a TCC of less than 500,000 per gram of raw meat was satisfactory; a TCC of 500,000 to 5 million was "passable" and a TCC greater than 5 million was "unsatisfactory". The guidelines for specific organisms quoted standards laid down by the EEC Minced Meat Directive,1988, which was yet to come into effect and in fact had the bacteriological requirement removed. In relation to E. coli McKey guidelines had the figure of 50 per gram as the count below which the sample was considered to be unsatisfactory, and Prof. Jackson considered this sensible since cooking would kill the organisms. However, I do not believe that E. coli could have meant E. coli 0157 specifically since two out of the five required samples per lot were allowed to fail, and this would not make sense with E. coli 0157.
One of the problems in the early part of the trial when Prof. Jackson gave evidence was that the vital distinction between E. coli organisms generally and E. coli 0157 in particular, was not always in the questioner's mind; nor in mine for that matter.
For salmonella the guideline was total absence in 25 grams. This related to cattle and pigs. Salmonella was more common in poultry and I inferred from Prof. Jackson's answers that it would be unrealistic at present to demand that salmonella be totally absent from raw, as yet uncooked, meat. It was the cooking to destruction which was important.
Prof. Jackson was shown a typical day's results of microbiological testing at McKey's, during his visit.
Mr David Walker gave evidence of hygiene procedures at McKeys which he ran. He was subjected to protracted cross-examination by the Defendants, much of it relating to testing for organisms.
The main areas in which it was suggested that McKey's practices presented a food poisoning risk despite Prof. Jackson's report and the numerous quality checks of which Mr Walker gave evidence were as follows.
By McKey's standards meat was unsatisfactory if it had a TCC of more than 5 million per gram. At one stage Mr Walker said it was unsatisfactory at more than 10 million but I believe there was confusion there.
Mr Walker said that a core sample from a combo of beef could on analysis prove to be "unsatisfactory" yet by the time the bacteriological analysis came through the beef would have been processed into patties which had left the plant and in due course went to McDonald's stores. However, I have already explained the limited function of TCC counts so far as food poisoning is concerned and the categorisation of "unsatisfactory" did not mean that the beef was "off" or condemnable or unfit to eat. It was merely unsatisfactory by McKey's standards and a matter to be taken up with the beef supplier if it sent enough unsatisfactory batches. High TCCs were a way of embarrassing a supplier into improving general standards of hygiene. The test of whether a batch of beef was unfit for processing was visual and by touch and smell, not by bacteriological analysis.
McKey tested for E. coli in 1990 but must have failed to pick up the E. coli 0157 which caused the Preston outbreak. After Preston McKey tested every consignment of meat for E. coli 0157. It had found it on two occasions, but this did not ensure that all its meat was E. coli free. Mr Walker accepted that it was not infallible. I have already said that in my view it is impracticable to test every cut of deboned meat for E. coli 0157 and in my view McKey's practices so far as E. coli testing was concerned were neutral. They did not guarantee safety, nor did they present a particular risk.
The procedure for microbiological testing allowed production machinery to be used for fresh consignments of meat before testing results were known so that if E. coli 0157 was found following batches might have been contaminated. Test results took twenty-four hours to come through. If E. coli was found as it had been on two occasions at McKeys all the patties from the relevant batch of meat were destroyed. But machinery was only cleaned every eight hours. So the Defendants argued that subsequent batches might be contaminated by E. coli 0157 organisms on the machinery.
However, Mr Walker said that one pattie from each box of 303 normal patties and 106 quarter-pounders was tested after processing. He was accused of lying about this but I saw no reason to doubt what he said, and his system seemed to me to be a sensible combination of reasonable safety and the practicality of processing food products which the public can afford. Having considered all the evidence relating to McKey, I thought that they were striking the balance well.
I thought that Mr Walker was a genuine, well-meaning man; but quite apart from this he was a good businessman, well aware of the importance of food safety.
At first Mr Walker said that meat arriving at McKey at a temperature above 4C was rejected. But McKey forms showed acceptance of beef arriving at over 4C. Mr Walker said that this would be the Quality Control Officer's management decision. He was running a practical business. In fact none of the temperatures at which meat was accepted were temperatures at which there would have been any real proliferation of organisms, so no doubt a sensible, practical decision was made.
There was evidence that McKey continued to take meat from one particular abattoir which McKey staff visited five times in twelve months for irregularities in the boning room. Yet McKey continued to take its meat for twelve months. But Mr Walker said that the abattoir in question only supplied McKey periodically. On one occasion it was found to have a soft drink bottle in the boning room. A knife was stuck in the dado walling in the boning room and sterilisers were not working to a high enough temperature which sounds rather more serious. Eventually Mr Walker visited, did not like the state of the cloakroom, the changing room and the overalls and took the abattoir off his supply list.
I had no reliable evidence of unhygienic practices in U.S. slaughter and processing plants. Some evidence was introduced under the Civil Evidence Act, particularly in relation to a large plant of one of the First Plaintiff's major pattie suppliers, but it largely relied upon quotes in magazines and I could really have no confidence in the accuracy of the quotes or their reliability if the statements were made. I ruled other evidence inadmissible under the statute which prevailed at the time of my ruling, but even if it had been admissible it would have carried no more weight than the limited evidence which was admitted.
There was abundant evidence, which I accept, that the First Plaintiff and its national operating subsidiaries like the Second Plaintiff go to a great deal of trouble in choosing their processors and suppliers of food products and training them up with a view to achieving universally high standards.
There was no evidence of hygiene failures by McDonald's distributors, Golden West Foods.
I heard a considerable amount of evidence concerning food safety procedures within the Second Plaintiff's stores. I heard little or none about equivalent procedures in U.S. stores or elsewhere in the world, but McDonald's store procedures appear to follow the same general pattern and I have no reason to suppose that essential procedures worldwide were markedly different to those in the U.K.
The overall picture of procedures was given by Mr John Atherton who had worked for the Second Plaintiff since 1982 as a Trainee Manager, Store Manager, Supervisor Operations Manager. In 1994 he became Head of Training with responsibility for the Corporate Training Department, the Health and Safety Department, the Customer Services Department and the Operations Development Department. He still visited restaurants about five or six times a month. Some of his visits were announced and some were not.
New crew members should not be allowed near food products until they have received their initial training. Priority is given to the responsibility to serve food safely and hygienically. There was some very limited evidence that the full orientation was not gone through on occasions, but I was not persuaded by it. The standard Crew Handbook which should be given to and read by each crew member stresses hygiene matters.
There is a system of practical training, task by task, with what should be regular "OCLs" (Occupation Check Lists). It was clear that, on some occasions at some restaurants, these tests fell into arrears, but there was no evidence that this adversely affected hygiene. There was some evidence of isolated occasions when new crew members were put to work with minimum training, but again the complaint made of this did not relate to hygiene.
Meat food products are delivered to McDonald's restaurants in a deeply frozen state and then put into large walk-in freezers at a temperature which should not rise above minus 18C. They are rotated on a "first in, first out" basis, and products which are most susceptible to temperature abuse are stored in the coldest part of the freezer, normally furthest from the doors
Some restaurants have an additional holding freezer where a shift's worth of product can be stored, again at no higher than minus 18C.
Shortly before use meat products are transferred to a grill-side or vat-side freezer which is again kept at a maximum temperature of minus 18C. They should not be kept there for more than two hours, after which they should be removed from the freezer and discarded.
Early management training includes basic food hygiene training.
Franchisees go through careful selection and training, and may have previously worked for the Plaintiffs in management capacities previously.
There is a system of close supervision of restaurants with unannounced as well as anticipated visits. There was cogent evidence of special attention being paid to cleaning before announced visits and no doubt staff were careful to follow set procedures when supervisory operations staff were in their restaurants, but the overall impression made on me was that supervisory regimes were generally designed to keep up operational standards including hygiene standards.
So far as cooking procedures are concerned I am not going to go through the various times and temperatures which the Second Plaintiff has from time to time laid down for its various products, whether deep fried or grilled. It appeared that the grilling times were increased not long before the Preston E. coli 0157 outbreak and increased again not long afterwards, but this was no proof that they were inadequate before. It merely means that a greater margin of safety was thought advisable. The Defendants did not call any witness to say that the cooking times and temperatures were inadequate for food safety if they were properly observed. There have been increases in cooking times in the U.S. particularly after highly publicised outbreaks of food poisoning at McDonald's or competitors, but the same comments apply.
The method of checking that food would be properly cooked was originally by regular heat calibration of cooking equipment which had automatic timers, relying on an assumption that if the product was cooked for long enough in or on equipment which was hot enough, the product would be properly cooked. In other words matters were not just left to the judgment of the chef or cook as happens in most commercial and domestic kitchens.
Early in 1992 an instrument called a pyrometer was introduced, a digital thermometer which was used to check the internal temperature of sample products after cooking. Mr Atherton had confidence in it and in its use.
In any human operation there will be poor individual performance from time to time. Moreover equipment will malfunction from time to time. It is inevitable that both will occur from time to time in McDonald's restaurants and there was positive evidence that they did.
I have no doubt that on occasions too many patties have been placed on the grills under the pressure of fast service at busy times or when a restaurant has been short-staffed. However, I have no reason to believe that this was common practice. Indeed the incidents of which evidence was given related to very few restaurants on limited occasions.
From time to time, for whatever reason, McDonald's customers have been served undercooked meat products. The Second Plaintiff has been prosecuted as a result. There was evidence that the Second Plaintiff pleaded guilty in August,1990, to selling an undercooked chicken sandwich at Sutton. There was no defence available then that the company had shown due diligence to avoid the undercooking. In April,1991, it was again fined for serving an undercooked 'McChicken Sandwich'. Mr Keith Kenny, a Quality Assurance Supervisor employed by the Second Plaintiff, said that the company was convicted at Wells Street Magistrates Court in 1992 for selling an undercooked burger but the conviction was quashed on appeal on the grounds that the company had taken due diligence to avoid this happening, a defence which by then was available. He recollected a prosecution in Burnley for selling undercooked Chicken McNuggetts. A crew member had taken the second of two baskets out of the cooking vat instead of the first, so its contents were undercooked. He thought that happened at lunchtime when the restaurant would be busy. The prosecution failed because the company had shown due diligence. The company was convicted in Shrewsbury of selling uncooked Chicken McNuggetts which contained salmonella.
In fact the prosecutions and convictions are by the way because I have no doubt that there must be many more incidents of undercooking than prosecutions or convictions reveal, because most customers will be satisfied with a replacement meal and will not even think of reporting the matter. Of course a complaint that a product is not hot enough does not mean that it is undercooked, but if a customer justifiably complains of an undercooked product an incident report form should be completed in the restaurant and sent to head office. Mr Atherton said that a handful of such reports were received at head office each month. I am prepared to accept that it is the way of the world that a proportion of complaints of undercooked food get no further than the person to whom the complaint is made or the manager responsible for the restaurant in question, especially since it is company policy to try to resolve customers' complaints at the counter. Mr Kenny and other witnesses said as much.
The store manager clearly has a lot of actual discretion so far as reports of undercooking are concerned.
Mr Ian Whittle who worked at the Sutton restaurant between 1983 and 1986 and who gave evidence making wide-ranging criticisms of repeated unhygienic practices in company procedures, said that it was quite normal for customers to bring back half-eaten, raw burgers. He said that this happened three or four times a week on his shift alone. I will return to Mr Whittle on the subject of the Second Plaintiff's employment practices. I thought that he exaggerated the general dreadfulness of working for McDonald's and he probably, therefore, exaggerated the regularity of raw burgers, but other present or past employees spoke of occasions when meat products were found to be undercooked.
Both Mr Simon Gibney and Mr Siamak Alimi who worked at the Colchester restaurant in the 1980s said that patties, especially thick quarterpounders, were frequently undercooked during busy periods, if they were not properly pressed down and seared.
Mr Michael Logan who worked at the Bath restaurant between 1990 and 1994 said that beef and chicken products were regularly undercooked, particularly on Saturdays which were very busy.
Mr Kevin Perrett who has worked for the Second Plaintiff since 1987 and has been a Breakfast Manager at Bath since 1990 said that meat products were occasionally undercooked, but if a customer returned an undercooked product the manager should be told and would check procedures. On occasions when the internal temperature of a product was too low the whole run was thrown away. It sounded as if undercooking was an occasional event.
Mr Alan Beech who was employed at a "drive thru" near Heathrow from, October,1993 to September,1994, and who I thought to be over critical of McDonald's in certain respects relating to his employment said that patties could be undercooked when grills were badly adjusted, but he also said that he could spot the ill adjustment and it only took twenty seconds to adjust the grills. If this was so he was exaggerating the problem, although I could see no good reason why the grills should ever be put into operation at all when badly adjusted, unless the operator forgot to adjust them under pressure of time.
My view, having heard all the evidence is that from time to time meat products have been undercooked at the Second Plaintiff's restaurant, and I see no reason why it should be any different at the First Plaintiff's restaurants, mostly because of pressure to produce large quantities of meat quickly at busy times.
The risk of this happening is endemic in the fast food system whatever protective measures the Plaintiffs put in place. No doubt that is why the Second Plaintiff's due diligence defence has succeeded on some occasions when undercooked food has been served. Presumably the Court has been satisfied that the Second Plaintiff has sone its best to avoid undercooking, but it had happened through human failing nevertheless.
All this, however, begs the question of the scale of the problem.
None of the reliable evidence which I heard led me to doubt Mr Atherton's evidence that the number of incidents of undercooking were "quite small in the company", if that meant quite small in relation to the number of meals served. There was the additional difficulty that when witnesses spoke of "raw" products being served or brought back by customers, they generally meant only partly cooked or undercooked , and there was no way of knowing to what extent such cooking as had taken place had killed such food poisoning organisms as might have been present.
There was evidence that staff would touch cooked patties, for instance, with their fingers from time to time, and there was, therefore, a potential for contamination in this respect. Some Environmental Health Officers had raised the point, but it appears to have been taken no further, presumably through lack of confidence that it presented any real risk.
The Second Plaintiff sets limits on the maximum time for which products should be held before being thrown away if they are not sold, and I heard some evidence that the limits were ignored on occasions, to avoid recording what might be seen as excessive waste, but this seemed to be an occasional peccadillo.
There were some "horror stories" in the evidence, like kitchens being flooded from the drains and food products being dropped on the floor and then put back into circulation. I do not dismiss these as unimportant, but they do not help me as to any general risk of food poisoning at McDonald's because they were very few in number in comparison to the vastness of the Second Plaintiff's operation.
Finally so far as food poisoning is concerned, I turn to the reported incidents both generally and specifically attributable to the Plaintiffs.
I have already referred to Dr North's evidence on numbers of reported incidents of food poisoning generally.
The incidents of food poisoning shown to be attributable to either Plaintiff were very few.
Dr North said that he was not aware of any outbreak of salmonellosis attributed to McDonald's food although it provided about 500 million meals or, rather, till transactions a year. He thought that he would be aware of any incident. The same applied to the majority of food premises in the whole of the U.K.
I did hear evidence of infections caused by McDonald's food.
For example there was evidence of a typhoid outbreak in the U.S. as a result of consumption of McDonald's food, but it appears to have stemmed from the handling of food by a crew member who, unknown to anyone, was a carrier of the disease.
More relevantly, a Civil Evidence Act statement of Mr George Rummel of McDonald's Corporation stated:
"In 1982 approximately 47 people, mostly from Michigan and Oregon, not all of whom had eaten at McDonald's, were found to be infected with a previously unknown strain of E. coli. The Centre of Disease Control performed a statistical analysis of the outbreak and concluded that its research inferred a numerical correlation between the outbreak and McDonald's. McDonald's paid the medical bills and related claims of these individuals as a means of settling the matter to everyone's satisfaction."
Although there was no admission of liability for any part of the E. coli outbreak, which was in fact due to E. coli 0157, I infer responsibility from the contents of Mr Rummel's statement.
I have already referred to the outbreak of E. coli 0157 infection in Preston in 1991.
Dr North said that E. coli 0157 infection was a relatively new disease in this country.
Prof. Jackson thought that the earlier identification of E. coli 0517 in the U.S. was probably due to some one doing research and identifying it there. New mutations of organisms occurred and then spread around the world. He did not think that the earlier discovery of E. coli 0157 in the U.S. and its later appearance here was due to U.S. food eating patterns arriving here.
It was clear from the evidence of the Second Plaintiffs that from time to time McDonald's customers complained of having suffered food poisoning after eating McDonald's food; but the number of complaints, justified or not, was very modest in comparison with the vast numbers of McDonald's meals sold. The Defendants argued that the Second Plaintiff's rate of referral of complaints from individual restaurants to head office and the recording of such complaints were poor, and that many people might suffer food poisoning as a result of eating McDonald's food without realising the cause of their illness or without complaining to the restaurant or head office if they did.
In my view there was some merit in these points including the last one. We are still a largely uncomplaining nation, especially if we are not sure who to blame, although it may be said that this attitude has been changing in recent years. I have already indicated that I am prepared to accept that some store managers may try to keep customer complaints away from their superiors at head office, because that would be no more than human nature, although the Second Plaintiff's supervisory systems would make it quite difficult successfully to suppress a written complaint which was pursued. I think it unlikely that head office ignores complaints which come to its attention, because I am quite convinced that those who run the Second Plaintiff take the view that it is good business management to keep the risk of food poisoning down, and looking into complaints of food poisoning with a view to correcting any responsible system failure is an obvious way of keeping the risk of food poisoning down.
Making all due allowance for the difficulty of identifying the cause of an individual incident, or even a larger outbreak, of food poisoning, for reluctance of customers to complain, and for some "loss" of complaints in the lower, local echelons of the McDonald's system, I find it difficult to believe that McDonald's would not have got a reputation for gastric upsets and worse by now if its food had given rise to any significant number of incidents of food poisoning in relation to the vast numbers of meals which it sells.
It might be different with an individually owned restaurant, or even a small group of restaurants, which afflicted customers might merely choose not to revisit in the light of their experience, without word getting around. But McDonald's is a large, prominent, brand name operation which relies upon customers being satisfied enough with what they get there to want to come back.
In my view it is inherently unlikely that it could have traded so successfully for so long if there had been any significant incidence of food poisoning from eating its food.
There is no indication that its systems have deteriorated so as to give rise in recent years to a risk which was not present in the past, indeed the reverse is so, with improved equipment like clam shell grills instead of open grills, and extended cooking times.
So I come to my conclusions so far as food poisoning is concerned.
All through the pipeline of food supply in the McDonald's system as in any food supply system there is some risk of contamination of food by food poisoning organisms. This is particularly so with processed meat products.
There is a risk of contamination of meat by food poisoning organisms at slaughter plants whose meat eventually goes into McDonald's products; it is impossible to avoid it altogether. Having said this the standards of food hygiene at Midland Meat Packers which supplies beef for McDonald's products in this country, at Sun Valley which supplies chicken and at G.D. Bowers which supplies pig meat, are high and their practices keep the risk to a reasonable minimum. To adopt the words of the Defendants' witness Ms Hovi, I cannot say with full confidence that the procedures at Jarretts which supplies beef have been the best possible, but I do not believe that any levels of contamination have been unsafe. There is no evidence, or reliable evidence, that the levels of contamination at other slaughter plants which supply the First and Second Plaintiffs are unsafe.
All four slaughter plants which I have mentioned keep McDonald's meat at temperatures which avoid undue proliferation of food poisoning organism and there is no evidence or no reliable evidence that other slaughter plants act differently.
The standards of food hygiene at the processing plants of McKey Food Service which makes McDonald's beef patties in this country, at Sun Valley and at G.D. Bowes are high. Their practices keep the risk of cross-contamination by food poisoning organisms to a reasonable minimum and they keep McDonald's meat at temperatures which avoid undue proliferation of food poisoning organisms. There is no evidence, or no reliable evidence, that any other food processors supplying the First or Second Plaintiff operate to lower standards. The McDonald's supply system is standardised and aimed at high levels of food hygiene and safety.
There is no evidence that the distributors of food from processors to the First and Second Plaintiffs' restaurants fall below any reasonable standard or that their practices give rise to any risk of cross-contamination by or proliferation of food-poisoning organisms. The Second Plaintiff, puts standardised practices and equipment in place to minimise the risk of contamination of food products and to minimise the risk of proliferation of food poisoning organisms. It takes reasonable steps to train its employees in basic food hygiene. There is good reason to believe that the First Plaintiff does the same in all material respects, because many of the relevant practices are international.
Proper cooking is the last and strongest line of defence to food poisoning. The Second Plaintiff has cooking procedures and equipment in all its restaurants which are designed to good standards to achieve cooking for times and temperatures which will kill food poisoning organisms. There is good reason to believe that the First Plaintiff's procedures are the same in all material respects.
However, the objective of both Plaintiffs is to serve as many people as possible as quickly as possible. I reject as absurd the Defendants' contention that the Plaintiff companies themselves, and their senior management, take a knowing risk with the health of their customers, the better to achieve this objective and to increase profits, but at busy times the First Plaintiff's objective of quick service taken with a perfectly normal share of human fallibility in its restaurant staff, leads to the service, on occasions, of undercooked minced meat products with a resulting risk of food poisoning. The same must apply to the Second Plaintiff, because the pressures on the system are universal.
The number of occasions when this happens is very small, however, when put against the number of meals which are served and even then the risk of food poisoning is small because of the need for a sufficient number of food poisoning organisms in the part of any undercooked product which the customer actually goes on to eat and because of the human body's protective systems so far as food poisoning organisms are concerned.
There is no sensible room for complacency about food safety, but it is a fact of life that it is impossible to eliminate all contamination by food poisoning organisms and it is impossible to test every item of food to see whether food poisoning organisms are present. However good hygiene systems are, there will always be human errors.
So those who want to will always be able to point to areas of risk in any food seller's chain of supply from live animal to customer.
However, it is unsound in my judgment to look at the number of risk areas at various stages and say that since they are numerous the accumulated risk must be very real or serious. Such an approach takes no account of the fact that the world in which we live abounds in micro-organisms including food-poisoning organisms to which we have built up many and varied defences with the result that, as the Defendants' main witness on the subject said "you have to work very hard to get food poisoning". Assessment of the ultimate risk must take proper account of that fact as well as making some broad judgment of the degree of risk involved in contamination, proliferation or failure to kill throughout the particular chain of supply.
My judgment on all the evidence which I have heard is that the risk of food poisoning from eating McDonald's food is minimal. From time to time people will no doubt get food poisoning from eating McDonald's foods but the risk is very small indeed.
It did not at first appear that pesticide, antibiotic and growth hormone drug residues were going to play any active part in the case at all, because Dr North appeared to discount them.
In his witness statement made in July,1993, he said that he did not think it true that UK farmers routinely injected their animals with antibiotics. Farmers rarely took any action with symptomless animals. In the less common event that an animal showed overt symptoms of infection, antibiotics were generally administered to counter specific symptoms, but their use had to be authorised by a veterinary surgeon and it could not be considered routine. He could not speak for other countries.
In Dr North's view it was "somewhat tendentious" to say that the build up of antibiotics, growth promoting hormone drugs and pesticide residues in animal feed could further ruin the health of people on a meat-based diet. He said that there was no evidence, in respect of UK stock, that either antibiotic, hormone or pesticide residues had accumulated to significant levels, or even measurable levels. Growth hormones and antibiotics were very rarely found in UK produced meat. It was an offence to market meat thus tainted, and special measures were taken to avoid them entering the food chain. He was not aware of significant levels of pesticides being found, although it was true to say that excessive residues of either antibiotics, growth hormones or pesticides, if they were found in meat, could ruin the health of its consumers.
So on the face of his statement Dr North torpedoed any defence case on antibiotic, hormone or pesticide residues.
When Dr North came to give evidence in March,1995, Mr Morris specifically did not ask him to confirm the parts of his July,1993, witness statement which referred to antibiotic or growth hormone drug or pesticide residues.
Dr North said that the routine response was to use antibiotics where infection was amenable and to treat the herd or flock rather than the individual animal, especially in intensive rearing where there was a lot of contact between animals, and especially if antibiotics were put in the feed.
He said that over the previous two years two strains of salmonella traditionally associated with cattle were observed to be multi-resistant to various antibiotics used in human therapy. Salmonella food poisoning in man was not treated by antibiotics unless it got outside the gut where it caused classic gastro-enteritis, and invaded the bloodstream; but the resistant strains were more likely to became invasive. Dr North could not say what the antibiotics concerned were, however.
He said that he was not really qualified to speak of health concerns related to eating meat from animals which had been treated with growth promoting hormones which were banned in this country because of health fears.
However, when giving evidence in March,1995, Dr North took what seemed to me to be a startling change of tack with regard to pesticide residues.
He said that he was concerned that the bulk of pesticides were now organophosphorous compounds (OPs). Since he wrote his July, 1993, witness statement he had changed his view "quite remarkably". He had revised his opinion quite recently before he gave evidence in March,1995: "not more than a couple of weeks ago". At first he said that this was the result of seeing a government report. He then said that he had always known that there was evidence of pesticide residues in meat for human consumption in this country. He had just not taken the time to form an opinion.
In the light of this change of heart I thought that Dr North should write a report, for disclosure, on pesticide residues, and in January,1996, ten months later, he produced a report entitled "A report on the presence of pesticides in foods served by McDonald's Restaurants". In this report Dr North averred that it could be said with some confidence that pesticide residues were so commonly found in all manner of foods that it would be inconceivable that the foods served by the McDonald's restaurant chain could have been free from such residues. He referred to survey findings in a report covering the period 1987 to 1989, to the effect that about one third of foods sampled contained detectible pesticide residues, before suggesting, therefore, that detectable residues of pesticides could be found in a third of McDonald's foods, had they been specifically sampled.
At the time that the survey was carried out MAFF was enforcing compulsory pesticide treatment programmes of sheep and cattle, using organophosphorous compounds and Dr North understood that it was quite possible to detect OP metabolites some months after the pesticides had been applied. He went on to say that testing for pesticide residues was limited so findings were likely to be understated.
So Dr North believed that on balance of probabilities had McDonald's beef burgers and milk been tested, pesticide residues would have been found to affect a significant proportion of foods sold by McDonald's.
Moreover pesticide residues could bind to potatoes and to flour used to make bread in McDonald's buns.
Dr North's report went on to say that to his knowledge OPs had a predilection for accumulating in nervous tissue. He said that his understanding of the toxic mechanisms of OPs was such that he believed that current criteria for assessing toxicity were not appropriate and he concluded that there was no level at which exposure to OPs did not cause damage to the nervous system.
One might therefore have expected Dr North to conclude that eating McDonald's food carried a very real or seious risk of poisoning by pesticide residues, but again, as with food poisoning, his ultimate conclusions were mild and in the realm of mere possibilities. They included the views that:
"As to their (pesticide residues') potential for harm, available evidence on the risks of long-term, low-level pesticide exposure is inconclusive. No specific links between the consumption of pesticide residues at the levels which would be found in McDonald's foods and harm to public health have been proven ...... it is well known and established that the nervous system in humans has a high level of redundancy and the body can therefore sustain high levels of damage before signs of any toxic effect are apparent - to the extent that they are recognisable as OP poisoning.
It is thus my view that any exposure to OP residues is undesirable in that damage may be caused, the damage rather than the toxins being cumulative. In that McDonald's foods may well have detectable residues of OPs, consumption of such foods might be considered undesirable. Nevertheless, this view might extend to all other foods produced by intensive farming systems, where agrochemicals are heavily used, but would not extend to produce grown or reared under what are known as "organic" systems".
I note the words "may" and "might" which are important in any trial where the issues fall to be decided on balance of probabilities.
However, when he came to give evidence in May,1996, and his report was read as part of his evidence in chief, Dr North went on to say that in his view "we do have serious harm arising from pesticide exposure". I checked that he meant to say this because it seemed entirely inconsistent with the mere possibilities expressed in his report. Dr North's response was that he had concluded that his dismissive attitude towards pesticide damage was not wholly justified. He told me that he had not changed his views since his January, 1996, report; but then a little later he said: "...if you say that detectable residues are likely to be found in McDonald's foods, and you say that long-term exposure to those residues is likely to do harm, then it is reasonable to conclude that long-term exposure to McDonald's foods carries with it a probability of harm".
Dr North said that he did not put himself forward as an expert so far as the central nervous system was concerned, but he had talked to those who were expert and there was a consensus view that ingestion of OP residues was a mechanism of damage to the nervous system. So for "may" and "might" in the last parts of his January, 1996, report, one should read "will": Dr North would very much say that.
Although he was relying on the expertise of others for the possible effects of pesticide residues in bread or meat on the human nervous system, he had investigated illness in people exposed to organophosphates and other chemical compounds; farmers, sheep dippers, those exposed to timber treatments, and others. Although the findings of his studies had not yet been published, he was working on a book on the subject.
I found Dr North an unsatisfactory and unreliable witness so for as the presence and effects of pesticide residues including OPs in particular, were concerned.
I have no difficulty with the propositions that some degree of pesticide residue may be retained in beef, for instance; that they may pass to human tissue; and that it is possible that they may have an adverse effect, although whether there is a useful analogy between residue exposure and direct exposure, such as that of the farmer operating a sheep dip, I know not. I have no difficulty with the proposition that we have much more to learn. But I cannot sensibly rely upon the opinion of a witness who starts from a negative position, then writes of possibilities in what should have been a carefully drafted report, before switching to positive assertions in the witness box and talking as if he had neurological expertise which he did not possess. If Dr North's views as expressed in the witness box are correct, we are all being damaged by pesticide residues and agrochemical residues, if we eat bread or meat produced by intensive rather than organic farming systems. Many people believe that this may be so; hence in part the increasing popularity of organically grown food products; but I am not prepared to find that it is probably so on the basis of Dr North's evidence. On the topic of pesticide residues, he did not appear to have worked out what he thought until he came to express a view in the witness box.
Dr North did not put forward a case for the presence of antibiotic or growth promoting hormone residues in McDonald's food nor, therefore, for damage or risk of damage by that route, in his January,1996, report or his March,1996, evidence.
Dr Alan Long to whom I have referred in relation to animal welfare is a research adviser to VEGA (Vegetarian Economy and Green Agriculture) on matters of farming, food, health and the land. His background is in biochemistry, working particularly with antibiotics and anti-infective compounds for use in medical and veterinary therapy, and in nutrition.
His evidence on this part of the case was that diseases of intensive farming have led to the overuse of drugs and the development of drug resistant organisms which threaten to spread into the human population.
He said that of the residues of what he called the "farmerceuticals", sufademidine regularly exceeded MAFF's Maximum Residue Limit (MRL).
Dr Long said that there were essentially two sorts of antibiotics used on domestic animals; non-therapeutic growth promoters and therapeutic drugs.
The antibiotics used primarily as growth promoters were virginiamycin, bacitracin, avoparcin, monensin and flavomycin. They were not much used in medicine and there was not much danger of multi-resistance to them building up. They are not hormonal drugs.
The therapeutic drugs which were supposed to be sold only on a vet's prescription included penicillins, cephalosporins, sulphur drugs, tetracyclines and streptomycin, to give a few examples. They were often used as prophylactics and not just to treat existing disease.
Many of the various drugs had withdrawal times before the treated animal was slaughtered or milked, but they were not always observed because the farmer was driven by the market. So one would get residues in the meat or milk.
Dr Long was not happy with MAFF's MRLs. He thought they should be pushed down. But in any event any residue in excess of an MRL was a sign of bad husbandry because the MRL was a maximum.
Having said all this I did not find it easy to understand what the harm from an antibiotic residue was, because Dr Long kept wandering off the point to topics like the demise of dung beetles and perpetual cow pats as a result. I think Dr Long's point was that as a result of the overuse of antibiotics on animals, "bugs" like salmonella typhimurium which could be passed to humans in or on meat had became resistant to the drugs which were also used for human therapy. But he may have meant that other human infections developed a resistance to drugs which we had in our systems because of residues in meat and milk, so that they were ineffective when prescribed by our doctors for those diseases.
Dr Long had not done any testing himself for antibiotic residues in animal meat for human consumption. He had examined the results of MAFF tests and as an organic chemist he was able to do so critically.
Dr Long said that residues of sulphur drugs used on pigs had exceeded MRLs and they could cause strong adverse reactions in certain highly sensitive people who were allergic to them. But he went on to say that the number of cases of residues exceeding MRLs had gone down over the last seven years and the excesses were in pigs' kidneys. Pigs' kidneys were tested because that was probably where the residues would accumulate most and they were easiest to test. He could not produce evidence of residues in the edible flesh of the pig, used by McDonald's.
Dr Long said that growth hormone drugs were still used on cattle in the U.S. and the danger was that they would come through in meat or milk and that at excessive doses they would affect, certainly, sensitive members of the public, for instance women in their reproductive years. It would be a low dose, chronic insidious effect. That is why they were banned in Europe: the authorities could not be assured of their safety.
Warble fly was treated with organophosphates although it had declined appreciably in the last five years. (Dr Long gave evidence in April,1995.)
Mr Timothy Chambers of Midland Meat Packers said that his company was a subject of MAFF's national screening programme for residues, including antibiotics, in meat. MAFF took thousands of samples a month, a large proportion of them from MMP. MAFF had a list of veterinary treatments including antibiotics and hormones and there were withdrawal periods specific to each one, setting out the minimum period between the last administration of the medicine and slaughter.
Some substances were banned, including growth promoting hormones, in this country. Others were not banned but had an MRL. There was an MRL for everything on MAFF's list of approved substances, including antibiotics. It was a long list and residues were measured in very, very minute amounts, like parts per billion. He could not remember whether any substances had a "zero tolerance". MAFF investigators arrived unannounced. Results were sent to MMP. It was unusual to get a positive result, i.e. a reading over the MRL. MMP had had two, from a worming medicine, in the four years that the programme had been in its present form.
Dr Pattison said that antibiotic compounds which acted as growth promoters and helped to improve digestion were fed to chickens at Sun Valley. So was Coccidiostat which was either an antibiotic or a chemical compound, designed to prevent the development of Coccidiosis. The birds were fed all these from arrival at Sun Valley until five days before slaughter, when they were put on a withdrawal diet. The growth promoters (Zinc Bacitracin, Virginia Mycin and Avo Parcin) had been used for a number of years.
Mr Ashley Bowes of G.D. Bowes said that his company used medication antibiotics such as penicillin, on veterinary advice. They sometimes used it in pig feed for problems which might arise. They would use it preventatively on apparently healthy pigs in an adjacent piggery to one where influenza, for instance, was present. They had not used it as a blanket treatment for all pigs since 1979 or 1980.
He said that G.D. Bowes had not used growth promoting antibiotics. He said that they had not used growth promoters, by which I think he meant hormone drugs, like Clenbeuterol, since the E.C. banned them in Europe in about 1990. Before then they were used in the pig industry as fairly standard practice and he thought the ban was a loss to Europe.
Mr Kenny accepted that there are public concerns over the possibility of pesticide residues in food, and that it would concern McDonald's if pesticide or antibiotic or hormonal drug residues were found in their foods.
Mr David Walker of McKey said that pesticides were not used on the grass which cattle ate.
Dr Gomez Gonzales said that it was legal to use not only antibiotics but also growth promoting hormone drugs on domestic animals in the U.S. Antibiotics were not given routinely to chickens, as they were at Sun Valley in this country. It cost too much. He did not know whether they were given to pigs in the U.S. Antibiotics were given to cattle in U.S. feed lots because that lessened the risk of sickness; the cattle grew better as a result and the antibiotics were, therefore, called growth promoters.
Federal regulations provided a safeguard in the form of a minimum time period between the withdrawal of antibiotics or growth promoters and slaughter.
Dr Gomez Gonzales said that pesticide residues were found in meat in the U.S. There was concern about that fact in the U.S., but the risk from pesticide residues was very small on the papers which he had read. The risk of cancer from pesticide residues was less than the risk from drinking coffee.
It was not suggested to him that pesticide residues had been found in McDonald's food in the U.S.
In my view the evidence fell far short of demonstrating that eating McDonald's food exposed the consumer to any risk of poisoning by the residues of antibiotic drugs, growth-promoting hormone drugs or pesticides.
Nothing in the evidence of the Plaintiffs' witnesses came anywhere near a concession of any such risk.
In summary, Dr North did not support a case that there was a risk of antibiotic or growth promoting hormone drug residues harming the health of those who ate McDonald's food.
Dr Long spoke of possible harm from residues of growth promoting hormonal drugs but not from growth promoting antibiotics. His evidence on the harm from hormone drug residues was rather vague. He did speak of some indirect risk from therapeutic antibiotics, but his evidence on that point was rather vague also.
The European ban on growth hormone drugs in the rearing of animals for food does not mean that the use of such drugs, for instance in the U.S., leads to a risk of harm. The European ban is consistent merely with a fear that this may be so.
Whether drug residues are found in meat and, if so, in what quantities depends on the withdrawal period between administration to the animal and its slaughter.
There was no evidence that antibiotic or growth promoting hormone drug residues have actually been found in McDonald's food.
Dr North did give evidence that organophosphate pesticide residues probably exist in McDonald's food products with the result of harm to the health of the consumer; but in my judgment his evidence on this topic was completely unreliable.
Dr Long spoke of sulphur drug residues in pigs' kidneys, but not in their edible flesh. His evidence on organophosphate residues was inconclusive.
There was no evidence that pesticide residues have actually been found in McDonald's food.
There was no suggestion, let alone any evidence, that any McDonald's customer anywhere had been shown to have been harmed by residues of antibiotic drugs, growth promoting hormone drugs or pesticides.
With all these matters in mind I find that the message and meaning of the leaflet that the First and Second Plaintiffs sell meat products which, as they must know, expose their customers, to whom they promote their meals, to a serious risk of food poisoning and poisoning by the residues of antibiotic drugs, growth-promoting hormone drugs and pesticides, is not justified. It is not true.
Having made this finding, I can return to the fourth charge in relation to the Plaintiffs' advertising and other means of promotion to children; that is that the First and Second Plaintiffs promote the consumption of meals at McDonald's as a fun event when they know full well that the contents could poison the children who eat them.
The leaflet clearly bears that meaning and that charge is clearly defamatory. It goes beyond mere disparagement of the Plaintiffs' products to allege that they are knowingly doing something wrong. It is damaging to the Plaintiffs' trading reputations, making people reluctant to deal with them.
In my view the charge is not justified because there is no real risk of food poisoning or poisoning by residues. Any risk is minimal.