Associate Professor Katy Barnett

Melbourne Law School

185 Pelham Street

University of Melbourne

Carlton 3053 VIC AUSTRALIA

 Ph: + 61 3 9035 4699

On Jan 21, 2015, at 12:24 PM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:

Andrew,

I agree with most of that - and apologies if I had misunderstood what
you were saying previously.

The one point of difference I would have with you is that I do think
that if there is a representation on a product that it was made in a
certain way or does not contain a certain ingredient, a consumer ought
to be entitled to rely on that both in contract and tort. There are
cases, of which you will be aware of representations made to the world
at large constituting terms of a contract, running from Carlill v
Carbolic Smokeball to Bowerman v ABTA - and I recognize the limits of
that principle but still think it applicable.

I do not think that the consumer has to go to the manufacturer, as I
read you to suggest  and say "I rely on your representation", to make
it binding either in tort or contract. That is just not how business
is done in the modern world, it is not something that someone with a
nut alergy say could do if they were buying groceries in their local
supermarket. If they were to ask a staff member, the odds are that the
staff member would not know the answer and would tell them to read the
label. If they were being really helpful, the staff member might look
at the label themselves.

I'm sure that such customers do check the label of food, that they
rely on it (given the gravity of the consequences that can insue for
them) and that manufacturers know that there are customers that rely
on information on labels in that way.

Moreover, if I market my product as say glutin free, I must know that
many of my customers will be coeliaks, so injury because my product is
stuffed full of glutin is foreseeable.

To me that is a clear case of negligence, physical harm, which is
foreseeable, with a fair degree of proximity (if that's relevant)
since the duty is only to the consumer of the food, not to an
indeterminate number, with an assumption of responsibility e.g. the
manufacturer takes responsibility (and I believe, without claiming any
knowledge of UK food law is legally required to take responsibility
for) the list of ingredients on the label. There is also a
vulnerability on the part of consumers - who can hardly be expected to
conduct tests on their food before eating and have no other way of
verifying their food's composition.

I agree with what you say on belief based food, except that as above I
would argue that a representation would be sufficiently definite to
form part of a contract if made on the packaging (in the same way as
the representation on the sign "cosher butcher" would be sufficiently
definite.

Interesting point though.

Kind regards

Ger

On 1/21/15, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:

Ger,

I agree (oddly enough) with a lot of what you say. In contract, _if
there is a term that the food won't contain anything haram or against my
beliefs_, I clearly ought to be able to sue: and I agree that trhere's a
case for Jackson v Horizon Holidays on the basis that the object of the
contract is to preserve my spiritual peace of mind. But it's the if that
matters. Such a term shouldn't be simply implied: if I want food that's
halal or kosher, then (unless perhaps I'm in a halal or kosher butcher's
shop) I should have to make this quite clear to the seller.

Tort is a bit more awkward. If I say to a supplier "I have an allergy
against X: I need to know if this food contains X"; he says "it doesn't
contain X" and I get sick, I absolutely take your point: obviously I can
sue. But I think the onus should be on me to ask: I don't think a duty
of care should arise automatically. Also, there's a difficulty if I say
"My religion forbids me eating X: I need to know about whether this food
contains X"; he says "No worries: no X"; I eat it and get sick. Here
we're up against the "different danger" problem in Darby v National Trust.

Best

Andrew


On 21/01/2015 17:45, Gerard Sadlier wrote:

Andrew,

If a seller represents that his food is free of whatever component is
objectionable or has been prepared in a certain way, for example on
the food's label or perhaps  in certain kinds of advertizing which is
more than a mere puff, and that representation is seriously meant and
would be taken seriously by a reasonable person, that representation
could (and should) very readily become a term of a contract between
the seller and a buyer who purchased in reliance on that
representation.

I see no reason why in such a case damages should not be recoverable
for breach of contract. Nor do I see any reason why damages should be
in any way nominal. The example of alergies you give is a good one and
will serve to prove my point.

The Alergy Analogy

If I had an alergy to nuts and purchased food based on the seller's
representation that the food in question contained no nuts and became
ill as a result, can it be said that I could not recover substantial
damages for breach of contract from the seller, for say loss of
earnings. It seems to me beside the point that the representation is
made to the whole class of persons purchasing the food, that does not
mean that the representation (made for example on the label) should
not form part of the contract. Admittedly, if I had no alergy, I would
suffer no loss and could therefore recover but nominal damages for
breach.

I think that liability in negligence could also be established, on
proof that (i) persons with nut alergies were likely to purchase the
product because of the statements that it did not contain nuts;  (ii)
that the seller knew they were likely to do so; and (iii) that knowing
this, the seller did not take reasonable care to ensure their product
was free of nuts.

Take a stronger case. Suppose I went to a restaurant and enquired
about the presence of nuts in my food before ordering. (I have a
friend who does this.) If I were told that there were no nuts in such
a dish and suffered injury because there were? Would I be denied a
remedy purely because my friend paid for dinner? I think that to ask
the question is to know the answer. The short point is that one is not
in a position to examine the food's ingredients, to ensure that there
are no nuts - one is not in a position to safeguard one's own
interests.

Belief Based Issues

All this may appear far removed from belief based concerns regarding
food.

Once it is accepted that a seller is liable in contract for
misstatements concerning their food, then it seems to me imaterial
that the representation concerns one's beliefs, rather than one's
alergies, as a matter of contract. The issues would be whether the
representation should properly be understood as forming part of the
contract (which might rule out certain ads) and whether loss could be
shown.

On the issue of damages, I do not see why damages for distress could
not be awarded a la Jackson v Horizon Holidays. The reason one
purchases hallal meat or cosher food is presumably to give one peace
of mind and that peace of mind or compliance with what one's
conscience dictates is part of what you pay for, just as enjoyment was
what Jackson paid for as part of his holiday.

Not so sure on negligence, perhaps it would depend on an assumption of
responsibility?

But, perhaps I'm missing something fairly fundamental? With apologies
for the rambling response!

Kind regards

Ger

On 1/21/15, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:

I don't think there is, and I suspect the reason is understandable.
There are strong arguments against imposing liability, whether under the
Sale of Goods Act or in negligence.

First, under the Sale of Goods Act, you can't generally sue if the
reason you were injured is your own idiosyncrasy. Lots of people have
allergies to lots of things, and food sellers know this: but this
doesn't mean that every food seller in the kingdom must take steps to
protect them. A straightforward instance is the (admittedly non-food)
case of Griffiths v Peter Conway  [1939] 1 All ER 685. Essentially you
have to look out for yourself in such cases and ask specifically for
something fit for your own needs. I see no reason why those with
religious aversions should be treated any differently.

Secondly, in negligence I suspect a similar doctrine applies to the one
above: there's no more reason to let a person allergic to a particular
kind of cloth (the situation in Griffiths) sue a manufacturer in
negligence for not warning of it, than there is to allow her to sue the
shop she bought her coat from. There's also another point in negligence:
is this cognisable damage? After all, you rightly can't sue in
negligence for mere distress, however carelessly caused (Hinz v Berry
[1970] 2 QB 40): nor for a simple fear of contagion (Grieves v FT
Everard [2008] 1 A.C. 281); nor for the unhappiness of having a child of
the wrong hue (A v Health Authority [2012] NI 77). Again, it isn't
apparent to me why mere personal disgust, however sincere and strongly
felt, at the idea of having ingested pork, or shellfish, or meat, or
whatever, shouldn't be treated in the same way: damnum sine injuria.

Human rights: not being an expert human rights lawyer, I wouldn't know.
If it is a breach of my right to freedom of religion that people owe me
no duty not to offend my nicer scruples, then I suppose damages would be
available under s.8 of the HRA. But is it? After all, no-one is stopping
religious enthusiasts from practising whatever takes their fancy and
applying whatever dietary rules they like. To say that the state must
now force other private people to take care to help them do it and not
to cause them to break taboos they have chosen to set up for themselves
seems to me a rather drastic step.

Bhamra: I've always regarded this as, if anything, a rather tendentious
extension of negligence liability in favour of a rather undeserving
claimant. Generally speaking if I am negligent in failing to guard
against danger X and as a result you are injured, but through danger Y
rather than X, you can't sue: Darby v National Trust [2001] EWCA Civ
189. It's a little hard to see why Bhamra doesn't infringe this rule:
effectively it's saying there's a duty to guard against egg allergy
(which wouldn't normally exist) because of an admittedly justified
expectation in the people at the party, held for completely different
religious reasons, that there won't be any eggs.

Andrew



On 21/01/2015 12:55, Tsachi Keren-Paz wrote:

Dear list members,

Is any of you familiar with English (or UK) decisions in which a
private law remedy was awarded for serving food which contradicts
belief-based dietary restrictions? I'm familiar with Bhamrav Dubb
(which was discussed on this list few years back), but there, a
personal injury followed. However, I haven't seen anything more to the
point. These claims (usually also in a class litigation format) are
quite common in other countries - a claim against McDonald for frying
chips in non-vegetarian oil comes to mind. I recall a very good
article by Doug Kysar from about 10 years ago on Federal Courts'
restrictive approach to consumer claims in belief-based context, but
would be grateful for other relevant references.

Also, am I correct in thinking that in England, a third party who
hasn't paid or is not a party to the contract would be left without a
remedy? In Bhamra it was decided in the first instance
(controversially, in my view) that the Contracts (Rights of Third
Parties) Act 1999 does not apply, and this was not litigated in the
CA; the third party could benefit neither from the Misrepresentation
Act nor from the Consumer Protection from Unfair Trading Regulations
2008; and unless one takes at face value the CA in Bhamra [25 ] that
'*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'*a remedy in negligence
would not exist as well. So it seems the third party is left without a
remedy. Do I miss anything?

Finally, for public law/HR enthusiasts, if indeed English law does not
provide remedy to a third party, could this amount to a violation of
freedom of religion and is there any possible remedy against the state?

Many thanks

Tsachi


--
Professor Tsachi Keren-Paz
Research Director, School of Law
Keele University
Staffordshire ST5 5BG
England
Office: CBC 2.015
Phone: 01782 734358
Email:t.keren-paz@keele.ac.uk
http://www.keele.ac.uk/law/people/academicstaff/tsachikeren-paz/
New book: Sex Trafficking: A Private Law Response (Routledge
2013)http://www.routledge.com/books/details/9780415583312/

--


*Andrew Tettenborn*
/Professor of Commercial Law, Swansea University/

Institute of International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855



*Andrew Tettenborn*
/Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855



*Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)






***

--


*Andrew Tettenborn*
/Professor of Commercial Law, Swansea University/

Institute of International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
Singleton Park
SWANSEA SA2 8PP
Phone 01792-602724 / (int) +44-1792-602724
Fax 01792-295855 / (int) +44-1792-295855



*Andrew Tettenborn*
/Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol
Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
Parc Singleton
ABERTAWE SA2 8PP
Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724
Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855



*Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)






***