From: Andrew Tettenborn <>
To: Tsachi Keren-Paz <>
Date: 21/01/2015 15:56:49 UTC
Subject: Re: UK litigation for consuming food contrary to belief-based dietary restrictions

I don't think there is, and I suspect the reason is understandable. There are strong arguments against imposing liability, whether under the Sale of Goods Act or in negligence.

First, under the Sale of Goods Act, you can't generally sue if the reason you were injured is your own idiosyncrasy. Lots of people have allergies to lots of things, and food sellers know this: but this doesn't mean that every food seller in the kingdom must take steps to protect them. A straightforward instance is the (admittedly non-food) case of Griffiths v Peter Conway  [1939] 1 All ER 685. Essentially you have to look out for yourself in such cases and ask specifically for something fit for your own needs. I see no reason why those with religious aversions should be treated any differently.

Secondly, in negligence I suspect a similar doctrine applies to the one above: there's no more reason to let a person allergic to a particular kind of cloth (the situation in Griffiths) sue a manufacturer in negligence for not warning of it, than there is to allow her to sue the shop she bought her coat from. There's also another point in negligence: is this cognisable damage? After all, you rightly can't sue in negligence for mere distress, however carelessly caused (Hinz v Berry [1970] 2 QB 40): nor for a simple fear of contagion (Grieves v FT Everard [2008] 1 A.C. 281); nor for the unhappiness of having a child of the wrong hue (A v Health Authority [2012] NI 77). Again, it isn't apparent to me why mere personal disgust, however sincere and strongly felt, at the idea of having ingested pork, or shellfish, or meat, or whatever, shouldn't be treated in the same way: damnum sine injuria.

Human rights: not being an expert human rights lawyer, I wouldn't know. If it is a breach of my right to freedom of religion that people owe me no duty not to offend my nicer scruples, then I suppose damages would be available under s.8 of the HRA. But is it? After all, no-one is stopping religious enthusiasts from practising whatever takes their fancy and applying whatever dietary rules they like. To say that the state must now force other private people to take care to help them do it and not to cause them to break taboos they have chosen to set up for themselves seems to me a rather drastic step.

Bhamra: I've always regarded this as, if anything, a rather tendentious extension of negligence liability in favour of a rather undeserving claimant. Generally speaking if I am negligent in failing to guard against danger X and as a result you are injured, but through danger Y rather than X, you can't sue: Darby v National Trust [2001] EWCA Civ 189. It's a little hard to see why Bhamra doesn't infringe this rule: effectively it's saying there's a duty to guard against egg allergy (which wouldn't normally exist) because of an admittedly justified expectation in the people at the party, held for completely different religious reasons, that there won't be any eggs.


On 21/01/2015 12:55, Tsachi Keren-Paz wrote:


Dear list members,


Is any of you familiar with English (or UK) decisions in which a private law remedy was awarded for serving food which contradicts belief-based dietary restrictions? I’m familiar with Bhamra v Dubb (which was discussed on this list few years back), but there, a personal injury followed. However, I haven’t seen anything more to the point. These claims (usually also in a class litigation format) are quite common in other countries – a claim against McDonald for frying chips in non-vegetarian oil comes to mind. I recall a very good article by Doug Kysar from about 10 years ago on Federal Courts’ restrictive approach to consumer claims in belief-based context, but would be grateful for other relevant references.


Also, am I correct in thinking that in England, a third party who hasn’t paid or is not a party to the contract would be left without a remedy? In Bhamra it was decided in the first instance (controversially, in my view) that the Contracts (Rights of Third Parties) Act 1999 does not apply, and this was not litigated in the CA; the third party could benefit neither from the Misrepresentation Act nor from the Consumer Protection from Unfair Trading Regulations 2008; and unless one takes at face value the CA in Bhamra [25 ] that ‘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’ a remedy in negligence would not exist as well. So it seems the third party is left without a remedy. Do I miss anything?


Finally, for public law/HR enthusiasts, if indeed English law does not provide remedy to a third party, could this amount to a violation of freedom of religion and is there any possible remedy against the state?


Many thanks



Professor Tsachi Keren-Paz
Research Director, School of Law
Keele University
Staffordshire ST5 5BG
Office: CBC 2.015
Phone: 01782 734358
New book: Sex Trafficking: A Private Law Response (Routledge 2013)


Andrew Tettenborn
Professor of Commercial Law, Swansea University

Institute of International Shipping and Trade Law
School of Law, University of Swansea
Richard Price Building
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Phone 01792-602724 / (int) +44-1792-602724
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Andrew Tettenborn
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Ysgol y Gyfraith, Prifysgol Abertawe
Adeilad Richard Price
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