Food allergies and negligence

By Legal Eagle

Via the Obligations Discussion Group, I have become aware of a recent English High Court case, Bhamra v Dubb (trading as Lucky Caterers) [2010] 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 [19]:

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 [24] – [25]:

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.]

19 Comments

  1. Oliver Townshend
    Posted January 27, 2010 at 8:09 pm | Permalink

    My wife (Rochelle) and I were once listening to raido when we heard the case of Rochelle Townsend (no relation) who had brain damage through eating a meal at a Thai restaurant after being assured there were no nuts. Again, no adrenline.

    I do find 0.1% surprisingly high, personally. I didn’t realise egg allergy was so common and could kill. But egg is everywhere. Like nuts. A friend has a daughter with 15 food group allergies (http://hullabaloofood.com/store/index.php?_a=viewDoc&docId=16).

    Who’d be a caterer?

  2. Posted January 27, 2010 at 9:24 pm | Permalink

    On problems caused by adulterants in food/drink, via Values Australia and NYTimes

    More than 100 Russian Orthodox believers have been hospitalized after drinking holy water during Epiphany celebrations in the eastern city of Irkutsk, an official said Monday.

    A total of 117 people, including 48 children, were in the hospital complaining of acute intestinal pain

    religious paraphernalia, traces of crap?

    Now was the local church, as the “retail” supplier responsible, or what they claim as the wholesale supplier of the holiness ingredient….. (a necessary component if truth-in-advertising problems are to be avoided)… and the wholesale supplier must of course be the deity.

    Right now I wish our dear SL was working for the Irkutsk office of Slaterovsky and Gordonovich!

  3. Posted January 27, 2010 at 9:27 pm | Permalink

    Ooops, dropped a “0” from the link to VA

    http://valuesaustralia.com/blog/?p=3120

  4. Posted January 27, 2010 at 9:35 pm | Permalink

    No, Dave, not plaintiff law. Please. Crime is bad enough 😉

    One thing I will say about this decision is that the court has done its level best to confine it to its facts. Creeping tort (a.k.a the imperial and all-conquering tort of negligence) is a most worrisome thing.

  5. Posted January 27, 2010 at 10:59 pm | Permalink

    SL… I would just love to see you doing a “The Man Who Sued God” thingy (the film with Billy Connelly… his yacht exploded… act of god said the insurers… “ok, I’ll sue those who claim to be his local representatives” goes the Connelly character…) and also the pythonesque image of you grilling the imaginary respondent (after determining the particular holy book of choice the imaginary friend would want to swear by…)

  6. Posted January 27, 2010 at 11:05 pm | Permalink

    I’d have said Mr. Dubb had a duty to serve only Sikh tucker, a duty to serve tucker that will not make diners crook, but no duty to be responsible for Mr Bhamra’s medical condition.

    btw LE: I have finally posted on valid reasons to fire a lawyer
    http://skepticlawyer.com.au/2009/09/02/nobody-loves-me/#comment-43098

  7. Posted January 28, 2010 at 12:39 pm | Permalink

    [email protected]: asked

    But is holy water really food?

    I reckon if it’s normal considered digestible and taken into the alimentary canal, p.o., p.r. or directly via an abdominal inwards tube, it’s either food, drink, or medicine. Medicine, of course, has much more stringent QA requirements than food/drink in most places.

    [email protected]: also asked

    Why were people drinking it?

    If a topical sprinkle of holiness (and only on exposed areas) does some good, but it dries off, gets blown or washed away, then 100% assimilation by ingestion (or near enough via enema, tee hee) must give the imaginary friendster even more benefit, particularly as the holiness is more likely to go directly through internal organs, which might be diseased (or prone to disease). This logic doesn’t apply, of course, if the peasant is a double-whammy-wacko and thinks holiness obeys the conjectures of homeopaths where infinite dilution increases efficacy.

    Besides, Xtianity in traditional peasant areas (South America is perhaps the best example, I think there are even Death versions of Jesuses or Marias in some RC churches) tends to accrete the idiosyncrasies of the previous endemic religion of the area. (SL could doubtless go to town on that topic). So it mightn’t be Orthodox orthodoxy, but something peculiar to that region.

  8. Peter Patton
    Posted January 28, 2010 at 4:14 pm | Permalink

    My non-lawyerly first response was a non-conflicted ‘no obligation at all’. I don’t see how the court came up with a legal obligation not to offend outside the specific contractual details of the catering arrangement between the bride’s father and Mr. Dubb.

    If the obligation not to offend were justified, and Mr.Dubb just wasn’t all that straight up and down about offending, what would the Court have done had there been no egg incident?

    It seems the court has extrapolated a legal obligation peculiar to Mr. Dubb’s ancestry. Is there some sort of ethnicity ‘neighbor principle’? I would have thought Mr. Dubb and the bride’s father would have had to sit down and write down at least some guidelines. If I come from Melbourne or Sydney’s eastern suburbs, and know lots of Jewish people, as a caterer, would I be under an obligation to serve kosher food as punctiliously as if I were a practicing Jew myself?

    As a normal business practice, I think I would ask the person who is hiring me – or expect him/her to detail – any restrictions, preferences, and so on.

    Obviously the above might not include all the relevant communication between Mr. Dubb and the bride’s father, but in the absence of any significant extra information, this decision strikes me – the layman – as another example of this tort against being offended and stinks to high heaven.

  9. Posted January 31, 2010 at 8:58 am | Permalink

    What a great post! I’ve seen a few times where friends have an allergy (celiac etc.) And ask the restaurant “Does this contain …” and constantly the restaurant forgot, didn’t know or whatever.

    What was the punishment? I think the caterer definitely breached their duty of care, but do they deserve 10 yrs jail?

    Does the fact that Mr Bhamra died change the “amount” of neglect???

  10. Posted January 31, 2010 at 8:01 pm | Permalink

    [email protected]: “B-in-L is coeliac”
    Recent papers suggest if you’d had tapeworms when young, you have almost no chance of ending up with a whole range of gut problems related to weird immune behaviour (a gazillion years of co-existence can make some relationships symbiotic to some degree). Apparently, deliberate infection with worms can give some relief even if those gut diseases have already developed.

    A modern equivalent of cats, rats and plague?

  11. Posted February 3, 2010 at 12:48 pm | Permalink

    Not a lawyer, never played one on TV. But it seems to me plain common sense that if you know you are severely allergic to any food, bee stings etc, that you would carry an epi pen. Why wouldn’t you? You never know what you might accidentally ingest, and it’s an easy enough thing to do to protect yourself from untimely death..

  12. Peter Patton
    Posted February 3, 2010 at 5:10 pm | Permalink

    Having thought about this a bit more, it is clearly much more complex than I originally thought.

    I would say that the bride’s father (does he have a name, I’ll call him ‘BF’) would owe a cultural duty of care to his guests to serve religiously-appropriate food. Given this duty he would reasonably foresee that his guests would act as if he were fulfilling that duty. That duty would include people with certain dietary sensitivities.

    The bride’s father (BF) would thus have two dietary obligations:

    1. Whatever the law of tort (or statute) ordinarily says a party-thrower must consider (I don’t know if that includes nuts, or whatever). If guests have particular sensitivities that go beyond that normal legal obligation, those guests would be obliged to inform BF or else take pot luck.

    2. The exception to the pot-luck would arise from the guests knowledge of BF’s duty not to serve any fish, eggs, or meat. So the issue becomes could Mr. Dhamra legally rely on BF cultural legal duty not to serve eggs to allay any other duty to inform BF of his allergy?

    I’m a bit swayed by LE’s example here. If I were Mr. Dhamra, and I knew I had an egg allergy, I would still tell everybody who was going to serve me food, no matter how wussy I seemed.

    The question is, as a matter of law, should Mr. Dharma have the self-obligation as a matter of law? I would say, if Mr. Dharma knew the stakes were high (death) then he does have an obligation to inform his party host. Assuming BF would be a good Sikh is not enough when death is possible.

    Having said that, if death was not foreseeable, but, say, a touch of the runs, or something mild was, I would say Mr. Dharma had no duty to inform. BF should be ‘responsible’ for that.

    Having written this, I now realize why I am not a lawyer. I have argued BF should be liable for a dry-cleaning bill, but nothing more! 🙂

    Can a real lawyer point out where I am going wrong before I even think of turning to Mr. Dubb!? 🙂

  13. momma bear
    Posted September 19, 2010 at 4:07 pm | Permalink

    This posses a question for me. My son has anaphalaxis with peanuts. A person, whom knows full well the extent of his allergy, flaunted peanuts in front of my son, ate them and then with a smile rubbed his hands on my sons shirt and arm. This caused a reaction, though not severe. Some have said the police should be called and a charge of assault made. Would this stand?

  14. Posted February 4, 2011 at 3:08 am | Permalink

    I’m very happy I found this post. I’m a Canadian lawyer researching food allergy and negligence, and this post is right on point. I recall reading the article in the news when Mr. Bhamra died. Recently in the UK and in the USA, there have been one death and one severe reaction on school property reported, and I’m looking into the legal issues. Any assistance you could offer would be welcome. I can be reached any time through the e-mail address found on my website. Best wishes ~ Elizabeth Goldenberg

  15. Patrick
    Posted February 4, 2011 at 4:52 am | Permalink

    I didn’t see this before. In many jurisdictions what momma bear describes would sustain a charge of recklessness murder/manslaughter.

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