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Bhamra v Dubb (t/a Lucky Caterers) Court of Appeal 20th January 2010

29 January 2010
The issues

Breach of duty – foreseeability – anaphylactic reaction to dish containing egg – Appeal Court’s right to draw inferences of fact.

The facts

Kuldip Singh Bhamra went to a wedding at a Sikh Temple in Forest Gate. Mr Dubb, who carried on a business under the name Lucky Caterers, provided the food under a contract with the father of the bride. One of the dishes served was ras malai. Because it was a Sikh wedding, in accordance with the tenets of Sikhism which forbid the consumption of meat, fish or eggs, Mr Dubb understood that the food served should not contain any ingredients of that kind. Mr Bhamra suffered with an allergy to eggs. The ras malai was found to contain egg. Mr Bhamra suffered an anaphylactic allergy and died. His widow brought a claim against Mr Dubb.

The Judge at first instance dismissed the claim under the Contracts (Rights of Third Parties) Act 1999 but found that Mr Dubb was in breach of a duty of care.

Mr Dubb appealed.

The decision

It was accepted that Mr Dubb owed a duty of care of some kind to Mr Bhamra. The dispute was about the nature and scope of that duty. In Caparo Industries Plc v Dickman, the House of Lords had held that the existence of a duty of care was to be determined not merely by foreseeability of harm but also proximity and whether the imposition of the duty was fair, just and reasonable in all the circumstances.

It was never sufficient to ask simply whether a duty was owed but in addition it was necessary to determine the scope of the duty by reference to the kind of damage from which ‘A’ had to avoid doing to ‘B’ (Lord Bridge in Caparo). The duty was not a duty to take care in the abstract but a duty to avoid causing to a particular Claimant, damage of the particular kind which he had in fact sustained (Lord Oliver in Caparo). It followed therefore that although ‘A’ might owe ‘B’ a duty to take reasonable care to avoid causing him harm of a particular kind, he would not be liable if, as a result of the breach, ‘B’ suffered harm of a different kind.

There was no evidence before the Judge to support a finding that good practice required restaurateurs and caterers to warn customers that dishes contained eggs. The restaurateur or caterer who provided food for people who, as far as he was aware, were of no more than ordinary susceptibility, did not owe them a duty to take reasonable care to prevent their suffering harm through eating egg.

The question in this case was whether therefore Mr Dubb owed Mr Bhamra a duty, not merely to take reasonable care to avoid offending his religious sensibilities but also to avoid causing him physical harm through serving food containing eggs. The critical question was whether the nature of the occasion (the wedding) was such as to extend the scope of the ordinary duty of care to encompass personal injury caused through the consumption of otherwise wholesome food, containing eggs. This was not an easy question to answer. However, there were four factors present in the case which led the Court to the view that the duty could be so extended.

Firstly, Mr Dubb was under a duty of care to avoid serving food containing eggs. Secondly, he knew that some people were allergic to eggs and that any such person would suffer illness or more serious injury if he ate food containing eggs. Thirdly, he knew that those who attended the wedding, including anyone who happened to suffer from an 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. Fourthly, Mr Bhamra, who knew that he had an allergy to eggs, had every reason to rely without enquiry on Mr Dubb 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. This very unusual combination of circumstances was sufficient to extend the scope of Mr Dubb’s duty of care to harm in the form of personal injury suffered as a result of eating food containing eggs.

The Judge had found that Mr Dubb had obtained the dish from an outside source. Mr Dubb denied this throughout and had refused consequently to identify the source. The Judge had not gone so far as to believe that Mr Dubb had been lying but he had not accepted Mr Dubb’s evidence on this point.

The legal burden of proof rested throughout on Mrs Bhamra, as the Claimant, of proving not only that a duty of care was owed but also that Mr Dubb was in breach of that duty. The Judge had found that Mrs Bhamra had done enough to satisfy on the balance of probabilities that Mr Dubb knew or ought to have known that one or more guests might be allergic to eggs; that he had served a dish containing eggs without warning; and that he had done so in circumstances in which nobody would have expected any of the food to contain eggs.

The Judge had taken the view that those facts, if unexplained, had been sufficient to establish a breach of duty, thus imposing a burden on Mr Dubb to call evidence to show that there had been no want of care on his part. The Judge had not been right to come to that conclusion. The need to comply with the demand of religious observants called for quite a high standard of care, but the additional fact that Mr Dubb knew that some guests might be allergic to eggs did not provide any additional support for the inference that he must have failed to take reasonable care to ensure that no eggs were present. Something more was needed. What was missing was a finding that at the relevant time, Mr Dubb knew or ought to have known that some makers of ras malai used eggs as one of the ingredients. It was unfortunate that at Trial no-one had directed much attention to this question and no finding had been made about it. Neither party had suggested that the matter should be remitted by the Court to the Trial Judge for further findings of fact.

An Appeal Court was permitted (under Rule 52.11(4) of the CPR) to draw such inferences of fact as it considered justified on the evidence. The state of Mr Dubb’s knowledge had not been directly explored in cross examination. However, in his witness statement he had said that he knew that there were different recipes for ras malai, some of which contained eggs. He did not say how or when he became aware of the existence of alternative recipes and in particular made no attempt to suggest that he was unaware of them at the time of the wedding. If he had been aware, prior to the death of Mr Bhamra, that some recipes for ras malai contained eggs, it is difficult to believe that he would not have said so. In these circumstances the Court felt justified in drawing the inference that he was aware at the time that some recipes for ras malai included eggs, and that, added to the other facts established by Mrs Bhamra, were sufficient to establish that Mr Dubb was in breach of his duty of care. In the absence of some explanation as to how the error had occurred, the fact that the ras malai in this case did contain eggs, was sufficient to support the conclusion, on the balance of probabilities, that Mr Dubb failed to take reasonable care.

Appeal dismissed.

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