Liability for Consequences, Duty of Care and the Limited Relevance of Specific Reliance: New Insights on Bhamra v Dubb

Abstract

The purpose of this article is to examine two issues central to the tort of negligence: the role of reliance in establishing a duty of care; and the relationship between the harm-within-risk rule and the rule excluding liability for coincidental harm as tests for legal causation. I will use the unusual facts of Bhamra v Dubb in which the defendant caterer was under a duty not to serve eggs for religious reasons, and the guest suffered from a known egg allergy and ultimately died, as a platform for this analysis.

While the Court of Appeal was correct in establishing a duty towards Bhamra on Bhamra’s reliance that eggs would not be served, it erred in limiting the duty to those aware that they suffer from egg allergy. Assuming there are reasons to avoid imposing a general duty on caterers towards those who are foreseeably people of ordinary susceptibility, guests avoiding a product for religious reasons have informational and medical susceptibilities which justify that a duty be owed to them. More generally, reliance on misrepresentation that a food served is ‘free from’ could justify duty and liability even in the absence of a claimant’s knowledge of his egg allergy.

As a matter of legal causation, I defend the position (recently challenged in the literature) that the rule against liability for coincidences is different from the harm-within-risk rule. The injury suffered by a (hypothetical) guest unaware of his egg allergy is neither coincidental nor outside the scope of the relevant risk. It is not a coincidence, since the risk of suffering an allergy injury is typically increased by a ‘free from’ misrepresentation. The harm is within the relevant risk, since the guest’s informational vulnerability is one of the reasons which makes serving him with eggs negligent – the fear he would suffer also a physical injury.

Keywords: negligence, duty of care, legal causation, coincidental harm, liability for consequences, reliance