Bhamra v Dubb (t/a Lucky Caterers)

A caterer ordinarily owes no general duty to warn customers that food contains eggs merely because some people have egg allergies. The scope of the duty depends on the relationship, the nature of the risk and the kind of damage reasonably foreseeable. An unusual combination of circumstances may extend the ordinary duty where the caterer must exclude an ingredient, knows that diners may suffer injury from it, knows that they will rely on the food being free from it, and understands that they will reasonably eat without inquiry. Once evidence establishes an unexplained breach on the balance of probabilities, an evidential burden may pass to the defendant, but the legal burden remains on the claimant throughout.

A guest at a Sikh wedding died after eating ras malai containing egg. The caterer had undertaken to provide food complying with the religious requirements of the occasion, although he denied obtaining the relevant food from an outside source. The Oxford County Court found negligence and awarded the claimant £415,000, while dismissing a claim under the Contracts (Rights of Third Parties) Act 1999.

On appeal, the defendant challenged the findings concerning the presence of egg, the scope of the duty of care, the finding of breach, and the alleged transfer of the evidential burden. The central issues were whether the unusual religious context extended the duty to physical injury caused by egg allergy and whether the evidence established a failure to take reasonable care.

1. Appeal dismissed. The court upheld the judgment for £415,000.
2. The factual finding that the ras malai contained egg as an intentional ingredient was open to the judge on the expert and surrounding evidence. The Court of Appeal was entitled to draw supplementary factual inferences under rule 52.11(4) of the Civil Procedure Rules 1998, consistently with appellate review as explained in E.I. Dupont Nemours & Co. v S.T. Dupont [2006] 1 W.L.R. 2793.
3. Applying Caparo Industries Plc v Dickman [1990] 2 A.C. 605, foreseeability alone does not define a duty of care. Proximity and the requirement that a duty be fair, just and reasonable must also be considered. The scope of the duty must be identified by reference to the kind of damage from which the defendant must take care to save the claimant harmless.
4. There is ordinarily no general duty on restaurateurs or caterers serving persons of ordinary susceptibility to warn that food contains eggs or traces of eggs. Nor does knowledge that egg allergy exists, without more, impose a duty to prevent physical injury caused by eating egg.
5. Here, four cumulative features extended the duty beyond avoiding religious offence to personal injury: the caterer had a duty to provide egg-free food; he knew that egg allergy could cause illness or serious injury; he knew guests would expect the food to be egg-free and rely on that expectation; and the claimant had particular reason to rely without inquiry because the occasion was exclusively Sikh.
6. The claimant retained the legal burden of proving duty and breach. Under Brady (Inspector of Taxes) v Group Lotus Car Cos Plc [1987] 3 All E.R. 1050, an evidential burden is only a practical shorthand. It may pass to the defendant where the claimant’s evidence, if unexplained, establishes breach, but it does not reverse the legal burden.
7. The facts initially proved did not by themselves establish breach, because the caterer’s knowledge that some guests might be allergic did not show that reasonable precautions were required. Once the court inferred that he knew some recipes for ras malai contained eggs, the presence of egg in food obtained from an outside source supported an inference of want of reasonable care, despite the inability to identify the precise precaution omitted.

• Court of Appeal (Civil Division) [2010] EWCA Civ 13: appeal dismissed and the county court judgment upheld.
• Oxford County Court: negligence claim succeeded, with judgment for £415,000; the claim under the Contracts (Rights of Third Parties) Act 1999 was dismissed.