I'm not sure that the claimant's subjective reasoning process should be relevant to whether the defendant owed a duty.  Aren't we supposed to deal in objective criteria?  If there were two guests at the meal with egg allergies and one of them did engage in that reasoning process, and the other did not think about it, would D owe a duty to the former guest only?  It is not as if there was actually a discussion between guest and caterer, during which the caterer could make the issue clear and the guest(s) could then choose what to eat.  The guest's reasoning process and resulting behaviour may be relevant to any defences that might arise, but (objectively) from the perspective of the reasonable caterer it should make little difference what precise (subjective) reasoning process was engaged in by the guests when considering whether he should owe the duty.  If death is foreseeable, and a warning is objectively required, it should make no difference to the existence of the duty that some guests may be stupid, drunk or otherwise ill-advised.  I am thinking here of the High Court of Australia's decision in March v E & MH Stramare (a negligent motorist owes a duty to the stupid and the drunk as well as the careful and the sober fellow motorist).

Incidentally, just out of curiosity, does anyone know how foreseeable is death from an egg allergy?  Is this common? I am familiar with nut allergy.  Are there any other food allergies about which a reasonable caterer would be expected to give reasonable warning?

Michael

--------------------------------------

Michael A. Jones

Professor of Common Law

Liverpool Law School

University of Liverpool

Liverpool

L69 3BX

Phone: (0)151 794 2821

Fax:     (0)151 794 2829

--------------------------------------

________________________________________

From: Robert Stevens [robert.stevens@ucl.ac.uk]

Sent: 22 January 2010 14:38

To: Hedley, Steve

Cc: obligations@uwo.ca

Subject: RE: Duty, and Breaking Eggs

>

> 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.

>

On reflection, I think that this is what is troubling about the result. To

show that the defendant committed a wrong with respect to the deceased, we

need a finding that, on the balance of probabilities, the deceased did

reason in precisely this way. As far as I can tell, the TJ doesn't

squarely address tis question. Perhaps Moore-Bick LJ thinks this is made

out where he says the deceased had 'every reason' to so rely.

R