Donoghue v. Stevenson is usually credited with unifying the law of negligence by exploding the “privity fallacy”, but it is not the last word on the subject. It is independently negligent, regardless of any contract, to manufacture an opaque ginger beer bottle with a noxious, decomposing snail lurking in it. But what if the foodstuff would normally be perfectly harmless, but it is consumed by someone allergic to it, in circumstances that amount to a strict breach of a contract with someone else?

Bhamra v. Dubb (trading as Lucky Caterers) [2010] EWCA Civ 13 involved the catering for a Sikh wedding reception, attended by hundreds of guests, which took place in the Sikh temple. The consumption of meat, fish and eggs is forbidden on religious grounds in the temple and so, when the bride's father contracted with the defendant (who ran a Sikh catering business), the contractual specifications reflected those strict dietary requirements. Mr Bhamra, who suffered from an egg allergy, was a guest at the wedding. Shortly after eating some ras malai, a sweet dish which should not contain egg, he developed a severe anaphylactic reaction and died. Medical opinion suggested the ras malai must have contained egg, although the defendant vehemently denied this. The claimant Mrs Bhamra sued the defendant for damages, acting on behalf of Mr Bhamra's estate and as his dependent under the Fatal Accidents Act 1976, pleading two causes of action.

First, she claimed damages for the defendant's breach of the catering contract, alleging that as a guest Mr Bhamra, although not party to the contract, gained a right to enforce it under the Contract (Rights of Third Parties) Act 1999. At trial, His Honour Judge Charles Harris Q.C. rejected this claim. Although a catering contract is no doubt of indirect benefit to the wedding guests, the statutory test is stricter – for a third party to gain an enforceable right, the contract must expressly provide for this or must at least “purport to confer a benefit on” him, neither of which applied on the facts. Unsurprisingly, this aspect of the decision was not challenged on appeal, which focused entirely on the other head of claim, the tort of negligence.

In order to succeed in negligence, the claimant had to show that the defendant owed Mr Bhamra a duty of care and, if so, that he was in breach of it. But before resolving these legal issues, the trial judge had to tackle the factual problem at the heart of the case, the defendant's categorical evidence that he had not used eggs in any of his food, which contradicted the medical evidence of Mr Bhamra's sudden and serious anaphylactic reaction. The claimant suggested an explanation – that the defendant ran out of his own food and was obliged to send out for reinforcements made elsewhere, including a batch of ras malai which contained egg (apparently not unknown in commercially produced ras malai from outside the Indian subcontinent). The defendant denied this explanation, adamant that he had prepared all the food himself. On balance, the trial judge preferred the claimant's account, though somewhat inconsistently he did not go so far as to find that the defendant was lying. The Court of Appeal broadly accepted the trial judge's findings of fact, but this revealed a further problem that, because the defendant denied serving externally produced ras malai, he gave no evidence about whether he knew, or took steps to check, its ingredients.

Given this factual conclusion, the trial judge found that the defendant owed Mr Bhamra a duty of care and was in breach of it, and the Court of Appeal refused the defendant's appeal. Both courts emphasised that, in normal circumstances, a caterer would not be liable in negligence if a guest with an egg allergy suffered a reaction, since (unlike decomposing snail) egg is generally a nutritious and harmless foodstuff and allergy sufferers can be expected to ask about ingredients before eating (although reasonable caterers are expected to warn if dishes contain nuts, a more widespread adult allergy). What made this case exceptional, and tipped the balance in favour of liability, is that the defendant should have realised that a Sikh with an egg allergy (such as Mr Bhamra) would know of the strict dietary regime at the wedding, would be “put off guard” and relax his usual vigilance. This is intuitively correct, but what is its legal significance – duty of care or breach of duty?

Now if one asks the question, “Does a professional caterer owe a duty of care to the wedding guests?” one might think that the answer is self-evidently “Yes”. We are certainly not in the genuine duty of care territory of whether the law of negligence stretches to this activity at all or whether the defendant can act unreasonably with impunity. Rather the meat of the negligence analysis here – of weighing up the objectively reasonable response to a given risk – is really a question of whether the defendant was at fault? Unfortunately, the Court of Appeal fell into the familiar error of tailoring the duty question to the precise allegation of negligence – did the defendant owe Mr Bhamra a duty of care not to serve him food containing egg? In doing so, they followed the approach to duty of care found in Darby v. National Trust [2001] P.I.Q.R. 27, explained in Bhamra by Moore-Bick L.J. in para [18] as follows, “… although A may owe B a duty to take reasonable care to avoid causing him harm of a particular kind by the act or omission in question, he will not be liable to B if, as a result of that act or omission, B suffers harm of a different kind.” This approach led to some peculiar reasoning, with discussion of the percentage of egg allergy sufferers in the population (surely a fault issue?) and a preposterous assertion that the defendant “was certainly under a duty to take reasonable care not to serve dishes containing egg in order to avoid offending against Sikh religious principles”. What sort of duty of care is this? Not one that is actionable in the law of negligence! Eventually, as if to admit that the duty of care reasoning was not going well, the Court of Appeal fell back on Watkins L.J.'s notorious recourse to “instinctive feeling” from Lamb v. Camden Borough Council [1981] 1 Q.B. 647.

In reality, the nub of the case – that a reasonable caterer would know that some people have egg allergies and that such people would relax at a wedding where no egg was meant to be served – is (and was) easily accommodated within fault reasoning, although the absence of any evidence about whether the defendant checked the ingredients of the externally produced ras malai meant that the Court of Appeal had to make a further, slightly troubling, inference of fact to that effect. Overall, this fascinating decision takes us right back to the fundamentals of the law of negligence, its categories and its relationship with contract, although it is likely to remain confined to its highly unusual facts, unlike its decomposing snail predecessor.