Bharma v Dubb t/a Lucky Caterers & others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 20 January 2010 |
| Neutral Citation | [2010] EWCA Civ 13 |
| Docket Number | Case No: B3/2009/0107 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2010 |
[2010] EWCA Civ 13
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Charles Harris Q.C.)
Before: Sir Anthony May Pqbd
Lord Justice Wall
and
Lord Justice Moore-Bick
Case No: B3/2009/0107
Claim No. 6BM09415
Mr. Christian Du Cann (instructed by Beachcroft LLP) for the appellant
Mr. Satinder Hunjan Q.C. (instructed by Murria Solicitors) for the respondent
Hearing dates: 13 th October 2009
Lord Justice Moore-Bick:
Background
This is the judgment of the court to which all its members have contributed.
On 24 th August 2003 Mr. Kuldip Singh Bhamra attended as a guest a wedding at the Ramgarhia Sikh Temple, Forest Gate. The appellant, Mr. Dubb, who carries on business under the name ‘Lucky Caterers’, provided the wedding feast pursuant to a contract with the bride's father. Among the dishes served was ras malai, some of which was eaten by Mr. Bhamra. Mr. Bhamra was allergic to eggs and shortly after eating the ras malai he became ill as a result of an anaphylaxic reaction. He was taken to hospital, but unfortunately died a few days later on 27 th August. As a result his widow and personal representative, the respondent, brought proceedings against Mr. Dubb seeking damages for personal injury caused by his breach of contract and negligence in serving food that contained egg. The claim was tried by His Honour Judge Charles Harris Q.C.. He dismissed Mrs. Bhamra's claim under the Contracts (Rights of Third Parties) Act 1999 and, since there has been no attempt to challenge his decision on that point, it is unnecessary to say any more about it. However, the judge found in favour of Mrs. Bhamra on her claim in negligence and entered judgment for her in the agreed sum of £415,000. Mr. Dubb now appeals against the judge's decision.
The judgment below
It was not in dispute at the trial or before us that a person who provides food on a commercial basis for consumption by others owes a duty to take reasonable care to ensure that it does not contain harmful substances and is thus fit for human consumption. Eggs, of course, are not normally harmful and are widely used in the preparation of many kinds of dishes, so it is not surprising that the judge found that the food that Mr. Dubb provided was fit for consumption by what he described as “ordinary” people. However, the Sikh religion forbids the consumption of meat, fish or eggs and it was well understood by Mr. Dubb, who is himself a Sikh, that the food to be served at the wedding should not contain any ingredients of that kind. Indeed, the judge found that it was contrary to the rules of the temple for any meat, fish or eggs to be brought into the building.
In those circumstances it became necessary for the judge to decide how it had come about that some of the ras malai served at the wedding had contained egg. Mr. Dubb said that he had produced all the food himself using ingredients from reputable suppliers and that no eggs had been used in its preparation. The possibility of trace contamination was considered, but, having heard evidence from expert witnesses about the nature of the allergy and the development of adverse reactions in response to the consumption of different quantities of egg protein, the judge found that some of the ras malai had contained egg as an intentional ingredient rather than a trace contaminant. There was evidence that the number of guests at the wedding had exceeded expectations and that there had come a time when some of the food had begun to run out. Mr. Dubb denied that he had sent out for further supplies, but the judge rejected that part of his evidence and found that he had obtained an additional quantity of ras malai from an outside source and that it had contained egg. He also found, however, that Mr. Dubb had not expected it to do so.
In paragraph 28 of his judgment the judge considered whether a professional caterer owes a duty of care to people who suffer from food allergies and, if so, the nature of that duty. In the absence of any evidence of what is considered to be good practice in this area, he did not feel able to find that caterers would normally give warnings that dishes may or do contain eggs. That certainly accords with the experience of all the members of the court. He did find, however, that Mr Bhamra would not have expected there to be any egg in ras malai served at a Sikh wedding and would therefore have felt quite safe in eating it without further inquiry.
The judge's approach to the issue of liability appears from paragraph 31 of his judgment, in which he said this:
“31. So, should the defendant have foreseen (a) that food with egg in it might injure a guest who was allergic to egg; (b) that a guest or guests allergic to egg were reasonably to be anticipated, who would not be suspicious of there being egg in the food because it was being served at a Sikh temple; (c) if so, did the defendant take reasonable care to ensure that there was no egg in the food he served?”
The judge answered the first question ‘Yes’, because he found that Mr. Dubb knew that some people were allergic to egg and might therefore suffer some degree of adverse physical reaction to it. He answered the second question ‘Yes’ as well, because there was uncontradicted evidence that egg allergy is “common” and he was satisfied that, if he had thought about it at all, Mr. Dubb must have realised that it was possible that out of five hundred or so guests there might be one who was allergic to egg. The judge also found that at a Sikh wedding a person with egg allergy would not be expected to inquire about or avoid any of the food because he could reasonably assume that none of it would contain any egg.
The judge answered his third question in paragraphs 35 and 36 of his judgment in the following way:
“35. As to the ras malai, which I have concluded he bought in at a late stage, the difficulty here is one of lack of evidence. Since the defendant denies he bought in anything at all, as I have found he did, he did not explain the terms in which he ordered it or whether or how he checked it. If no express stipulation was made then he would not have done much to avoid the presence of the egg. On the evidence it is possible that ras malai might be supplied which did contain egg. There is no evidence about whether any ingredients list was attached to the bought in ras malai or whether it was read, if it was, and there is no evidence about whether the defendant asked his supplier whether there was egg in what he was obtaining.
36. The claimant has to prove her case. The legal burden is on her to show that the defendant was in breach of a duty. She has established on [the] balance of probability that the defendant, who knew or ought to have known of the possibility of diners with egg allergies, supplied a food containing egg to them, and did so without any warning and in circumstances in which nobody would reasonably expect for there to be egg. In my judgment the evidential burden, explained by Mustill LJ as “a matter of practical commonsense” in Brady v Lotus [1987] 3 All E.R. 1050 at 1059, then passes to the defendant to establish that this happened notwithstanding the exercise of reasonable care on his behalf. This, he might do in at least two simple ways, by saying that he contracted for egg free wholly vegetarian ras malai, or that he examined contents labels which did not reveal egg. There was no evidence to either effect because his case was that everything was made by his own staff, a case which I have rejected. Accordingly, I conclude that it is established that the defendant did not take reasonable care to ensure that there was no egg in the bought in ras malai.”
Mr. Du Cann on behalf of Mr. Dubb challenged the judge's conclusions both on the facts and the law. As to the facts, he submitted that he was wrong to find that eggs had been an intentional ingredient of the ras malai rather than a trace contaminant from an unidentified source. As to the law, he submitted that the judge was wrong to hold that Mr. Dubb owed a duty of care to prevent Mr. Bhamra suffering physical harm through eating eggs, that he was wrong in holding that Mr. Dubb was in breach of a duty of care without considering whether he knew or ought reasonably to have known that the ras malai he bought in might contain eggs and that he was wrong to hold that in the circumstances of this case a burden had passed to Mr. Dubb to show that Mr. Bhamra's death had occurred despite the exercise of reasonable care on his part.
The judge's findings of fact
There was evidence from Mr. Dubb and others that he had prepared all the ras malai served at the wedding and that only the bread and sweets had been obtained from outside suppliers. Mr. Dubb also said that enough food had been prepared for all the guests and that there had been no shortage at any time. Mr. Du Cann submitted that the judge ought to have placed greater reliance on these aspects of the evidence, but his conclusion that the ras malai contained eggs as an intentional ingredient ultimately rested to a significant extent on the evidence of Dr. Pumphrey, an eminent immunologist, who as part of his researches had collated and studied all English fatal anaphylaxis episodes occurring since 1992. It was his evidence that although a trace contamination can cause a severe reaction culminating...
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