On 21/01/2010 22:36, Neil Foster wrote:
Dear
Rob;
That is a really interesting case! I am glad to see that the Court say
how hard they found the decision- "finely balanced" [20], "not an easy
question" [25]. It raises, as Rob says, the whole question of whether a
duty of care can be formulated based on the specific knowledge of the
defendant, as opposed to as a general principle. I think actually the
issue should have been framed as a question of breach, and if it were I
am not sure that the decision is correct.
One of the fascinating aspects of the case to my mind is the passing
comments that are made about the content of the duty owed by the
caterer. At [25] the court says (given that the caterer knew he was
catering for a Sikh wedding)
"In those circumstances he was certainly under a duty to take reasonable care not to serve dishes
containing egg in order to avoid offending against Sikh religious
principles".
Is that right? Of course it seems reasonable he should be
under such a duty to the host, with whom he had a contract- but would
that be a duty actionable at the suit of one of the guests? Can you
imagine a guest who had suffered no medical harm, who then discovered
that egg had been present and was outraged, being able to recover even
nominal damages from the caterer?
In the end it is also very interesting that the case ends
up being framed in terms that are more reminiscent of a claim in
relation to a negligent mis-statement. It is as if the court accepts
that a Sikh caterer, knowing Sikh customs, by supplying food is making
a representation, not only to the host but to all the guests, that the
food is egg-free. At [24]:
"Although [the trial judge] did not express it in quite
this way, it is apparent that in his view Mr. Bhamra was entitled to
rely on Mr. Dubb to ensure that he did not suffer harm as a result of
eating food that contained egg. It may not be particularly helpful to speak of an assumption of responsibility
in a case of this kind, such an approach being more obviously useful in
cases such as Henderson
v Merrett Syndicates Ltd [1995] 2 A.C. 145 in which the
relationship between the parties is contractual in all but name.
Nonetheless, there is a sense in which that expression reflects what
the judge appears to have thought was the position in this case."
Even if that is accepted (and maybe it is the best
explanation of the decision), the other thing that leaves one feeling
unsatisfied about the case is that it seems fairly clear that the court
took the view that the caterer was not telling the truth when he said
that he did not obtain the contaminated food from some outside source-
but neither the trial judge nor the Court of Appeal was prepared to
make an actual finding of dishonesty. Yet the only way that a breach of
duty could be found was by acting on that assumption.
Regards
Neil
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> Robert Stevens <robert.stevens@ucl.ac.uk>
21/01/10 8:15 >>>
Peter Watts has drawn my attention to a recent decision of the Court of
Appeal of some interest.
Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13 (20 January 2010)
http://www.bailii.org/ew/cases/EWCA/Civ/2010/13.html
A caterer for sikh wedding includes egg in some of the dishes, when this
was inappropriate for cultural reasons. One of the guests is allergic to
egg, but thinking that there won't be any egg used because of the nature
of th occasion, eats the dish, suffers an anaphylaxic reaction and dies.
Caterer liable.
The Court of Appeal see the question as one of duty (cf the American
Restatement (Third) of Torts). Clearly the Defendant ('Lucky Caterers')
owed a duty to the bride's father who employed them not to use eggs in
the
dishes, but did they owe a duty of care to the claimant not to
physically
injure him by triggering the egg allergy (para 25)?
Moore-Bick LJ states
"First, [the caterer] was under a duty of care to avoid serving food
containing eggs. For reasons given earlier, a person in his position
would
not ordinarily be under any such duty, but in the present case such a
duty
did exist. In addition, he knew that some people are allergic to eggs
and
that any such person would suffer illness or more serious injury if he
ate
food containing eggs. He also knew that those who attended the wedding,
including any guest who happened to suffer from egg allergy, would
expect
the food to be completely free of eggs and would therefore feel
confident
that no harm would come from eating it. Finally, [the Claimant], who
knew
himself to be allergic to eggs, had every reason to rely without inquiry
on [the caterer] to supply food which did not contain egg, as would not
have been the case if this had been anything other than an exclusively
Sikh occasion. In our view this very unusual combination of
circumstances
is sufficient to extend the scope of [th caterer]'s duty of care to harm
in the form of personal injury suffered as a result of eating food
containing eggs."
Rob
--
Robert Stevens
Professor of Commercial Law
University College London
What strikes me is the tenuousness of the connection between the
alleged negligence and the damage suffered. The claimant, frankly, was
lucky. Having been poisoned by an egg, he normally wouldn't have been
able to sue anyone: but here he is allowed to invoke the fact that as
it happened the claimant had been careless in allowing eggs to be
served where they ought to have been excluded for totally different
(i.e. religious) reasons. My view is that this kind of reasoning ought
not to be allowed.
Moreover, there's at least one CA case (interestingly enough, actually
cited in the judgments in Bhamra) saying it isn't. That is Darby v
National Trust. Although it's cited for the proposition that you can't
claim for a kind of damage different from that which was foreseeable,
it's actually very close to Bhamra. Pour memoire: claimant swims in an
ornamental pond and drowns. His widow can't complain that the pond
ought to have been fenced against foolish swimmers, but tries to latch
on to the fact that the occupiers happen to have been negligent in
failing to prevent those in contact with the water getting Weil's
disease. Quite rightly she fails. As Mr Bhamra ought to have.
Andrew
--
Andrew M Tettenborn
Bracton Professor of Law, University of Exeter
Snailmail:
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LAWYER, n.
One skilled in circumvention of the law. (Ambrose Bierce, 1906).