For me this is definitional. I prefer to say that a tort is a civil wrong.

A civil wrong is a breach of a duty owed to someone else.

So, if we say, as Richard does, that the defendant has breached his duty

to those with egg allergies when the meal is served then there is a tort,

at that moment and without more ado, with respect to all those at the meal

with the egg allergy. I don't, myself, think that is correct. Similarly, I

don't think there is any civil wrong (which is synonymous with a breach of

a duty owed to someone else) if I drunkenly drive the wrong way around a

roundabout and hit nobody. It is a duty to take care not to injure, and so

can only be breached when someone is in fact injured.

Personally, I prefer to say that there is no tort, which is the same as

saying no breach of any duty, before the egg is eaten by someone who has

assumed that there is no egg in the meal. 'Causation' is for me only a

separate distinct issue which properly arises when we are considering what

the consequences of a civil wrong are, not whether there is a civil wrong.

I cannot breach any duty owed to you without injuring you because

negligence in the air is not enough. Whether my negligence has caused you

injury is a matter going to breach, not a freestanding question in its own

right.

Of course, I do know that lots of people don't think like that. Andrews J

in Palsgraf for example, and the American Restatement (Third) of Torts

too. If you think a tort is not a civil wrong, but rather a formula or

recipe for relief, you can divide up its constituent elements in any way

you like.

Rob

> I think Rob is confusing duty and breach with causation.  If it was

> foreseeable to the defendant, given the religious circumstances, that

> people attending the Sikh event would assume that food with eggs was not

> being served and that people allergic to eggs would rely on that

> assumption, then all such people are foreseeable victims and the defendant

> has breached his duty to them by serving the food with eggs without

> warning.  If the particular plaintiff would have eaten the food containing

> eggs even if he knew about the eggs, then there is a lack of causation.

> It is the same as in any other case where a defendant omits a required

> warning, but the warning would not have been heeded by the victim.

>

> ________________________________

>

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

> Sent: Fri 1/22/2010 10:19 AM

> To: Jones, Michael

> Cc: Robert Stevens; Hedley, Steve; obligations@uwo.ca

> Subject: RE: Duty, and Breaking Eggs

>

>

>

>> I'm not sure that the claimant's subjective reasoning process should be

>> relevant to whether the defendant owed a duty.

>

> It is a question of what makes the defendant's conduct negligent vis a vis

> the claimant. If we think that supplying eggs without warning by caterers

> is not generally negligent per se vis a vis potential consumers (and I

> think that is probably correct, unlike the case of nuts) what made it

> potentially negligent vis a vis this claimant was that on this occasion he

> would not take the normal precautions someone with an egg allergy would,

> because it was food in a Sikh temple. That is why Moor-Bick LJ stresses

> this point at para 25 (which I extracted) and why he thinks this case is

> 'unusual'. If the deceased was unaware of his egg allergy or if, as Steve

> suggests, he was the sort of person who thought "My doctor says I

> shouldn't risk eating eggs, but I don't listen to doctors" then his death

> was not wrongful as it was not the sort of injury the caterer had a duty

> to protect him from suffereing.

>

> Negligence 'in the air' is not enough, so if the claimant had died because

> he had slipped on some of the eggy ras malai spilled on the floor, no

> claim.

>

> Rob

> --

> Robert Stevens

> Professor of Commercial Law

> University College London

>

>

>

>

--

Robert Stevens

Professor of Commercial Law

University College London