I don't think that this case can be analysed by a mechanical application of duty, breach damage (and/or causation/remoteness). I say this because the discussion we are having is implicitly about risk allocation and justice: what is the just allocation of the risk of serious bodily harm (or death) between a man with an extreme allergy to a common protein and a person preparing food who has agreed with a third person not to use that protein in food but has no specific knowledge of any unusual health or other physical risks to anyone arising from using  that protein? 

Tort principles justify but don't require allocating the risk in favour of the plaintiff (or his estate) and not the defendant. To make this outcome more plausible the court introduced the concept of reliance into the analysis.  But this concept also merely justifies a result by looking at the problem from the plaintiff's point of view not the defendant's.

Furthermore, the reliance in this case was not just reliance on the caterer's food preparation activities but was also, and perhaps more fundamentally,  reliance on the host's adhering to certain cultural beliefs and reliance on the host having  communicated culturally relevant dietary instructions to the caterer.

One could just as easily look at the problem from the defendant's point of view. It could easily be argued that a person with an extreme allergy to a common protein must expressly warn caterers of the allergy in order to impose liability on them because it is not just that the caterer's promise to a third person not to use the protein would have such extreme consequences if breached.  After all, the host asked the caterer in this case to promise not to use eggs in the food for purely metaphysical reasons (the host wanted adherence to supernatural cultural belief) not because of any physical concern by the host the any particular food was dangerous to anyone.  Presumably the caterer knew that the promise he made and the duty he accepted was based on cultural not health concerns.  
My view--for what ever it is worth-- is that the risk allocation question (and hence the resolution of this case) can only be answered satisfactorily by an appeal to policy.  Sensible policy would impose the risk of eating eggs on the plaintiff since he has all the relevant information about his risk of his dying from eating eggs and the best means of either minimising the liklihood of coming in contact with eggs  (by communicating the fact of his allergy to the host or the caterers or by avoiding catered dinners entirely) the physical risk if he does come in contact with eggs (carrying an antidote), etc) or the economic consequences should the risk materialise (life insurance).

David Wingfield 

----- Original Message -----
From: Robert Stevens <robert.stevens@ucl.ac.uk>
To: Wright, Richard <Rwright@kentlaw.edu>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Sent: Sat Jan 23 10:58:40 2010
Subject: RE: Duty, and Breaking Eggs


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