| From: | Hedley, Steve <S.Hedley@ucc.ie> |
| To: | obligations@uwo.ca |
| Date: | 22/01/2010 10:29:45 UTC |
| Subject: | RE: Duty, and Breaking Eggs |
“Isn't the issue more one of the
legitimacy -- not simply the existence -- of reliance? The result in Bhamra
essentially allows Bhamra to complain that a breach of contract by Lucky
Caterers vis-a-vis the hosts gives rise to liability to him a third party foreseeably
injured as a result. It's that that strikes me as outre -- particularly as
Bhamra had abandoned, presumably as hopeless, a claim under the Contracts (Rights
of TP) Act 1999.”
But why is it not legitimate? Or do the
general run of Sikhs not take these rules seriously? If the reasonable person
in the claimant’s position would assume that there was no egg, I’m not sure
that the reason for that state of affairs matters very much. I agree it is
quite different if he was a conscious risk-taker: “My doctor says I shouldn’t
risk eating eggs, but I don’t listen to doctors”.
S
From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
Sent: 22 January 2010 10:19
To:
Cc: obligations@uwo.ca
Subject: Re: Duty, and Breaking
Eggs
On 22/01/2010 09:49,
I think that would depend on whether the
victim was, in fact, relying on the religious character of the meal – in other
words, whether he said to himself “Ordinarily I wouldn’t take the risk, given
my allergy, but surely I’ll be safe at a Sikh wedding!”. If he was
thinking that, then luck doesn’t come into it, and I don’t think Andrew’s point
is good.
Unfortunately, the only person who could
tell us what went through the victim’s mind is dead.
S
From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]
Sent: 22 January 2010 09:39
To: Neil Foster
Cc: obligations@uwo.ca
Subject: Re: Duty, and Breaking
Eggs
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
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
Faculty of Business & Law
MC158,
Callaghan NSW 2308
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
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 TettenbornBracton Professor of Law, University Exeter Snailmail: