From: Gerard Sadlier <>
To: Andrew Tettenborn <>
CC: Tsachi Keren-Paz <>
Date: 21/01/2015 17:45:36 UTC
Subject: Re: UK litigation for consuming food contrary to belief-based dietary restrictions


If a seller represents that his food is free of whatever component is
objectionable or has been prepared in a certain way, for example on
the food's label or perhaps in certain kinds of advertizing which is
more than a mere puff, and that representation is seriously meant and
would be taken seriously by a reasonable person, that representation
could (and should) very readily become a term of a contract between
the seller and a buyer who purchased in reliance on that

I see no reason why in such a case damages should not be recoverable
for breach of contract. Nor do I see any reason why damages should be
in any way nominal. The example of alergies you give is a good one and
will serve to prove my point.

The Alergy Analogy

If I had an alergy to nuts and purchased food based on the seller's
representation that the food in question contained no nuts and became
ill as a result, can it be said that I could not recover substantial
damages for breach of contract from the seller, for say loss of
earnings. It seems to me beside the point that the representation is
made to the whole class of persons purchasing the food, that does not
mean that the representation (made for example on the label) should
not form part of the contract. Admittedly, if I had no alergy, I would
suffer no loss and could therefore recover but nominal damages for

I think that liability in negligence could also be established, on
proof that (i) persons with nut alergies were likely to purchase the
product because of the statements that it did not contain nuts; (ii)
that the seller knew they were likely to do so; and (iii) that knowing
this, the seller did not take reasonable care to ensure their product
was free of nuts.

Take a stronger case. Suppose I went to a restaurant and enquired
about the presence of nuts in my food before ordering. (I have a
friend who does this.) If I were told that there were no nuts in such
a dish and suffered injury because there were? Would I be denied a
remedy purely because my friend paid for dinner? I think that to ask
the question is to know the answer. The short point is that one is not
in a position to examine the food's ingredients, to ensure that there
are no nuts - one is not in a position to safeguard one's own

Belief Based Issues

All this may appear far removed from belief based concerns regarding food.

Once it is accepted that a seller is liable in contract for
misstatements concerning their food, then it seems to me imaterial
that the representation concerns one's beliefs, rather than one's
alergies, as a matter of contract. The issues would be whether the
representation should properly be understood as forming part of the
contract (which might rule out certain ads) and whether loss could be

On the issue of damages, I do not see why damages for distress could
not be awarded a la Jackson v Horizon Holidays. The reason one
purchases hallal meat or cosher food is presumably to give one peace
of mind and that peace of mind or compliance with what one's
conscience dictates is part of what you pay for, just as enjoyment was
what Jackson paid for as part of his holiday.

Not so sure on negligence, perhaps it would depend on an assumption of

But, perhaps I'm missing something fairly fundamental? With apologies
for the rambling response!

Kind regards


On 1/21/15, Andrew Tettenborn <> wrote:
> 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.
> Andrew
> 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 Bhamrav 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
>> Tsachi
>> --
>> Professor Tsachi Keren-Paz
>> Research Director, School of Law
>> Keele University
>> Staffordshire ST5 5BG
>> England
>> 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
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> *Andrew Tettenborn*
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> ***