Via the Obligations Discussion Group, I have become aware of a recent English High Court case, Bhamra v Dubb (trading as Lucky Caterers)  EWCA Civ 13. As someone who suffers from a severe food allergy myself (anaphylactic reaction to tree nuts) this case is of intense interest to me.
The facts of the case are unusual. Mr Bhamra attended a Sikh wedding at Ramgarhia Sikh Temple at which food was served. Mr Dubb carried on business under the name of ‘Lucky Caterers’, and was engaged by the bride’s father to cater for the wedding. Mr Bhamra was a Sikh and Mr Dubb was a Hindu Punjabi who was familiar with the Sikh religion. The Sikh religion forbids the consumption of meat, fish and eggs in a temple. Indeed, meat, fish and eggs are not supposed to be brought into the temple at all.
Mr Bhamra suffered from a severe allergy to eggs. Unfortunately, he ate a portion of ras malai which contained eggs. It seems that there were more guests than expected, and the trial judge found that Mr Dubb had had to bring in some extra food from an outside source, but that Mr Dubb did not think the ras malai contained egg (although Mr Dubb did not give evidence to this effect on the stand). Mr Bhamra had an anaphylactic reaction and, tragically, he died a few days later. His widow sued the caterers for negligence.
In the context, the trial judge decided that a caterer would not normally give a warning that a product contained egg. He found that it was reasonable of Mr Bhamra to assume that there would be no egg served in the temple because of the specific context in which the food was served. The trial judge found that Mr Dubb was liable in negligence. Mr Dubb appealed to the High Court.
The question was not whether or not Mr Dubb owed a duty of care to Mr Bhamra, but what the precise content of that duty was. The court said at :
Although in the present case the judge found that egg allergy is common, there was no evidence before him capable of supporting a finding that good practice requires restaurateurs and professional caterers to warn customers that dishes contain eggs, where that is the case. It is necessary to bear in mind that, although Dr. Pumphrey described the incidence of egg allergy as “common”, it is in fact present in only 0.1% of the adult population. If the risk of causing injury to those with egg allergy were generally understood to be significant, one would expect restaurateurs of all kinds routinely to provide warnings that dishes contain, or may contain, eggs or traces of eggs, but in fact that is not the case. We therefore approach the matter on the basis that there is no general duty to provide a warning of that kind, even though it is known that some people are allergic to eggs. (The position in respect of nut allergy may differ, but it is unnecessary to consider that for the purposes of this appeal.) It follows that a restaurateur or caterer who is providing food for people who, as far as he is aware, are of no more than ordinary susceptibility does not owe them a duty to take reasonable care to prevent their suffering harm through eating egg. In the present case, however, it was important to avoid the use of eggs for purely religious reasons. It is therefore necessary to ask whether in the circumstances of this case Mr. Dubb owed Mr. Bhamra a duty not merely to take reasonable care to avoid offending his religious sensibilities but to avoid causing him physical harm through serving food containing eggs.
The court then continued at  – :
In our view, therefore, the critical question in the present case is whether the nature of the occasion 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. The judge thought that it was. Although he did not express it in quite this way, it is apparent that in his view Mr. Bhamra was entitled to rely on Mr. Dubb to ensure that he did not suffer harm as a result of eating food that contained egg. …
We have not found this an easy question to answer, primarily because the relationship between Mr. Dubb and Mr. Bhamra was essentially the same as that which exists between any restaurateur or caterer who provides food for the public and those who consume it, apart from the additional requirement that the food should not contain ingredients that were prohibited by the Sikh religion. 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, but it is not so clear that his duty extended to physical harm resulting from egg allergy. Nonetheless, there are four factors present in this case which in our view lead to that conclusion. First, Mr. Dubb was under a duty of care to avoid serving food containing eggs. For reasons given earlier, a person in his position would not ordinarily be under any such duty, but in the present case such a duty did exist. In addition, he knew that some people are allergic to eggs and that any such person would suffer illness or more serious injury if he ate food containing eggs. He also knew that those who attended the wedding, including any guest who happened to suffer from 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. Finally, Mr. Bhamra, who knew himself to be allergic to eggs, had every reason to rely without inquiry 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. In our view this very unusual combination of circumstances is 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.
Ultimately, the court found that Mr Dubb was in breach of duty because he was aware that some recipes for ras malai included eggs, and that ras malai obtained from some outside sources might contain egg. Mr Dubb did not exercise due care because he did not choose an appropriate and reputable supplier, he did not stipulate expressly that the product should not contain eggs, and he did not check the list of ingredients (if there was one). In the absence of an explanation as to how the error occurred, therefore, the fact that the ras malai contained egg was sufficient to support the conclusion that Mr. Dubb failed to take reasonable care. (An aside at this point: I’m a little sad that the court didn’t use one of my favourite tortious maxims, res ipsa loquitur – “the thing speaks for itself” – it would have been a perfect moment for it).
There has been a lot of debate in the Obligations Discussion Group about this case. I’ve also asked a few legally qualified and non-legally qualified friends what they would have concluded if they had been the judge, and the views differed wildly. On the one hand, one friend thought that the failure of the caterer was clearly negligent by including egg when there was a religious dietary restriction on egg, and further, that it was reasonable of Mr Bhamra to suppose there was no egg in the food. On the other hand, some other friends thought that it was unfair to punish the caterer when the caterer was not aware of the deceased man’s allergy or of the particular importance of supplying egg-free food. (I don’t know if it’s of any significance that the first friend is a member of a religion with strict dietary requirements and the second group of friends adhere to no religion? Perhaps it’s just chance. I’d need a greater sample of people to question.)
The thing that really struck me about this case (as someone who suffers from a severe food allergy) is that the poor deceased man did not appear to be carrying an adrenaline auto-injector. I always take my adrenaline auto-injector wherever I go, regardless of whether someone has assured me that there’s no nuts in food, because as this case shows, it’s always possible for mistakes to occur. I learned my lesson the hard way. I now tend to avoid European cakes and biscuits regardless of disclaimers (hazelnut meal and almond meal is hard to spot). I once neglected to tell a caterer of my allergy at a work function. I thought, Well, I’m very careful with my selections – if it looks like it has nuts in it, I’ll avoid it. No sense making a fuss. Who would have thought a roll with roast beef would have had walnuts sprinkled through the bread roll? Now I’m always careful to tell caterers, even if it does mean that I get some kind of horrible fruit platter for dessert.
So if this poor man knew he suffered an anaphylactic reaction to eggs, should he have carried an adrenaline auto-injector with him, even if he thought that there would not be eggs in the food? In that case, is there an issue of contributory negligence? It would depend, I suppose, whether the reasonable person who suffers from anaphylaxis is like me and takes her adrenaline with her everywhere she goes.
What do you think about this case? Would you have found the caterer negligent or not?
[Incidentally, my previous post about the stupidity of the disclaimer "may contain traces of nuts" is here. Grr grr grr.]