£100k fine for York-owned bar over lethal drink that burned away girl’s stomach

Gaby Scanlon arrives at Preston Crown Court, Preston, 17 September 2015.
Gaby Scanlon arrives at Preston Crown Court, Preston, 17 September 2015.
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A York-owned wine bar was warned about the dangers of liquid nitrogen before serving an 18-year-old girl a lethal cocktail containing the gas which burned away her stomach, a court heard.

Gaby Scanlon, now 20, started vomiting just seconds after downing a shot of Jagermeister laced with liquid nitrogen at her birthday celebrations.

Director of Oscar's Wine Bar, Andrew Dunn, from York

Director of Oscar's Wine Bar, Andrew Dunn, from York

A court was told that the bar had been warned about the risks of using the gas and was advised about the “10 second rule” - waiting 10 seconds after serving it before the drink was safe to consume.

But, prosecutor Barry Berlin, told the court: “They knew it was dangerous and didn’t properly police it.”

Student Gaby had her stomach removed as a result of the incident at Oscar’s Wine Bar in Preston, with a surgeon saying it was necessary to save her life.

Mr Berlin told Preston Crown Court: “On October 4, 2012, Gaby Scanlon, who had just turned 18, went out for a birthday celebration with friends.

“At about 8.45pm they go to Oscar’s Wine Bar, where she orders a cool shot of nitro Jagermeister, which is warm liquor with liquid hydrogen.

“Four shots are poured and all four members of the party, including Gaby Scanlon, drink them before two more shots are poured.

“Immediately after consuming the second drink she is violently ill.

“She vomits clear liquid, pouring from her mouth and steam comes out her nose. The liquid nitrogen hits her stomach and begins killing her internal tissue.

“Her stomach had to be removed and her bowel connected to her oesophagus. The surgeon who carried out the operation said if it had not been removed she would have died.

“She still suffers very seriously from stomach pains and bacteria gathering where the stomach should be causes residual problems.”

In a victim impact statement read to the court, Miss Scanlon, said: “It immediately felt like I was expanding.

“I burped and then clear vomit started to come out.

“I tried to undo my skirt as my stomach had expanded because of the gas.”

Mr Berlin told the court that Oscar’s Wine Bar Limited had made a number of failings that could have prevented the incident.

He said: “The investigation [into the incident] uncovered severe systematic failures by the company and its owners.

“On October 5, the day after the incident, police found a document showing the dangers and hazards of liquid gases.

“This document was presented to the defendant in February 2012, by Mansfield Crynogenics Ltd, who supplied the company with the nitrogen.

“When the bistro opened in May 2012 it sold a range of cocktails containing liquid nitrogen.

Oscar’s Wine Bar - owned by Andrew Dunn - claims it discussed the dangers of using liquid nitrogen in drinks with Peter Wilkinson from Mansfield Cryogenics and devised a rule that would safely allow the nitrogen to turn from liquid back into gas.

Mr Berlin said: “The company say they discussed it with him and devised the ‘10 second rule’ - where you wait 10 seconds after serving it and then it is safe to consume.

“But as we now know, the nitrogen wasn’t safe before it had boiled off.

“The company stated they relied on Peter Wilkinson to supply them with the ‘10 second rule’ - but he is not an expert in liquid nitrogen cocktails and cannot be relied on by the company to supply advice before consumption.”

Mr Berlin told the court the wine bar was also visited by Peter Lord, an environmental health officer for Lancaster City Council, who also expressed concern about the use of liquid nitrogen following an inspection shortly after

it opened in May 2012.

Mr Berlin said: “Mr Lord believed he needed to consider this more carefully, and did some research on liquid nitrogen in the bar trade.

“He wrote to Mr Dunn on 11 June. It’s a detailed letter and says the risks of nitrogen should be examined with a risk assessment.

“It wasn’t just a half page letter, it was a one and a half page letter and three page document.

“There was no response from the defendant, no consideration and no correspondence.

“The ‘10 second rule’ was designed by the company. Ultimately the shot is only safe to drink when the nitrogen has boiled off.

“The company failed to act on Mr Lord’s summery.

“They knew it was dangerous and didn’t properly police it.”

Kevin McLoughlin, for Oscar’s Wine Bar, said: “It is said that a limited company cannot feel shame - while that may be true of large companies but is not the case here.

“On behalf of the company and the family I make an apology to Gaby Scanlon for they are truly sorry for what happened.

“There is no need to teach this company or the Dunn family a lesson.

“They have learned their lesson every day for the last three years.”

At a previous hearing on June 12, Oscar’s Wine Bar Ltd pleaded guilty to one count of breaching Section 3(1a) of the Health and Safety at Work Act.

Fining the company £100,000 and ordering it to pay a total of £40,000 in costs, Judge Pamela Badley, said: “Miss Scanlon was celebrating her 18th birthday on October 4, 2012.

“It was a fun occasion and Miss Scanlon and her friends were intrigued to see cocktails that appeared to be smoking and wanted to try these drinks.”

“As Miss Scanlon consumed them, she was taken violently ill and killed her tissue and perforated her stomach lining and needed emergency surgery to save her life.

“The ongoing effects have dramatically changed her life and that of her family.

“She still has excruciating pain. The pleasure if eating has now been taken away from her and she is reliant on her family for her needs.

“There is no doubt harm caused is at a very high level as it resulted in a life-changing and life-threatening injury to Miss Scanlon.

“There was a fragrant disregard for the customers involved.

“The drink was designed to lure and excite customers. It was designed for fun, and to make profit.

“It is astonishing no risk assessment was taken out to the dangers of ingestion.

“Peter Lord was told the drinks would not be sold to customers until liquid nitrogen has burned away.

“It should not have been needed to spell out that immediate ingestion was dangerous.

“There was a failure to adhere to advice from a senior health and safety officer.

“It was for the company to ensure a proper risk assessment had been carried out and they failed.”

Speaking after the hearing, Patricia Noone, a lawyer representing Miss Scalon’s family, said: “At least now she can put this behind her.

“All of this has had an impact in her everyday life. They are horrified that bars open to the public can operate like this.

“She and her family are obviously angry and disappointed it has taken so long. It has derailed everything she had hoped to do.

“She lives a very different life now to the one she would have liked.”

At a previous hearing, a verdict of not guilty was accepted by Oscar’s Wine Bar employee Matthew Harding, who denied failing in his duty to take reasonable care for the health and safety of others at work.

Oscar’s Wine Bar director Andrew Dunn, of Old Earswick, York, pleaded not guilty to being part of a corporate employer which failed in its duty to ensure the safety of persons not in its employment.

The court heard that the prosecution would offer no evidence against him if a payment towards court costs was made.