Day 309 - 03 Dec 96 - Page 21
1 result, then they are taken to have caused the adverse
2 result.
3
4 MR. RAMPTON: That may be so as a matter of the law of
5 negligence.
6
7 MR. JUSTICE BELL: It may be a complete red herring, but it
8 helps me to -----
9
10 MR. RAMPTON: With respect, it is a complete red herring, given
11 what the Defendants's own witnesses, Professor Crawford in
12 particular, have defined as the role of food in relation to
13 diet, which is that the food must at the very least be a
14 substantial or dominant part of the diet before it can be
15 thought to be influential on the character of the diet. It
16 must be -- and, as I say, I am not asking your Lordship to
17 read it now, but I have gone into this at some length on
18 page 54 and 58 of this submission -- it must be, in the
19 context of a libel action where the Plaintiffs are accused
20 of selling food which they know makes people's diets high
21 in fat, et cetera, and gives rise to a very real risk of
22 serious disease, it must be shown that it is the
23 Plaintiffs' food which has that effect; not somebody else's
24 food, not Burger King or fish and chips; it must be the
25 Plaintiffs food, and for the Plaintiffs food to play that
26 part, to have that causal role in bringing about that risk,
27 the Plaintiffs' food must be the substantial or dominant
28 part of the diet. Otherwise, one would be reduced to this
29 absurd position, that the vendor of Professor Naismith's
30 olive would be causing the diet of its consumer to be high
31 in fat, though it was making, as Professor Crawford said, a
32 McDonald's meal made a minute overall contribution to the
33 fat content.
34
35 MR. JUSTICE BELL: That is why I tried to rationalise it as I
36 did. In those circumstances, you say that is not
37 substantially justified.
38
39 MR. RAMPTON: No.
40
41 MR. JUSTICE BELL: Well, there we are. It has been a helpful
42 discussion. Possibly, the better way of expressing it is,
43 if this appeals to me at the end of the day, as I said
44 before, if you really have to eat a lot of McDonald's meals
45 before this begins to be true, then it cannot be said that
46 it has been substantially justified.
47
48 MR. RAMPTON: That is certainly true. But I do go a step
49 further. In the context of a defamation action which makes
50 accusations against the Plaintiffs and their food -- not
51 against it, because this is not a public health inquiry;
52 not against diets and fat in general, but this is specific
53 to McDonald's and the contribution which their food may
54 make to people's diets -- it is, we would submit,
55 absolutely essential that the role of that food in people's
56 diets is isolated and examined in isolation from the
57 effects of other people's foods or food choices.
58
59 MR. JUSTICE BELL: Yes. I understand that. It is essential
60 that the role of their food in isolation must bear the vice
