Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13

Case No B3/2009/0107[2010] EWCA Civ 13
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
(His Honour Judge Charles Harris Q.C.)
Claim No. 6BM09415
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 January 2010
Before
SIR ANTHONY MAY PQBDLORD JUSTICE WALLLORD JUSTICE MOORE-BICK
Between
AMARJIT KAUR BHAMRAClaimant/(Suing as widow and administratrix of the estate ofRespondentKuldip Singh Bhamra, deceased)RespondentPREM DUTT DUBBDefendant/Appellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr. Christian Du Cann (instructed by Beachcroft LLP) for appellantMr. Satinder Hunjan Q.C.(instructed by Murria Solicitors) for respondentHearing Hearing dates : 13 th October 2009
JudgmentLord Justice Moore-Bick :Background
[1]This is the judgment of the court to which all its members have contributed.[2]On 24th August 2003 Mr. Kuldip Singh Bhamra attended as a guest a wedding at the Ramgarhia Sikh Temple, Forest Gate. The appellant, Mr. Dubb, who carries on business under the name ‘Lucky Caterers’, provided the wedding feast pursuant to a contract with the bride’s father. Among the dishes served was ras malai, some of which was eaten by Mr. Bhamra. Mr. Bhamra was allergic to eggs and shortly after eating the ras malai he became ill as a result of an anaphylaxic reaction. He was taken to hospital, but unfortunately died a few days later on 27th August. As a result his widow and personal representative, the respondent, brought proceedings against Mr. Dubb seeking damages for personal injury caused by his breach of contract and negligence in serving food that contained egg. The claim was tried by His Honour Judge Charles Harris Q.C.. He dismissed Mrs. Bhamra’s claim under the Contracts (Rights of Third Parties) Act 1999 and, since there has been no attempt to challenge his decision on that point, it is unnecessary to say any more about it. However, the judge found in favour of Mrs. Bhamra on her claim in negligence and entered judgment for her in the agreed sum of £415,000. Mr. Dubb now appeals against the judge’s decision. The judgment below[3]It was not in dispute at the trial or before us that a person who provides food on a commercial basis for consumption by others owes a duty to take reasonable care to ensure that it does not contain harmful substances and is thus fit for human consumption. Eggs, of course, are not normally harmful and are widely used in the preparation of many kinds of dishes, so it is not surprising that the judge found that the food that Mr. Dubb provided was fit for consumption by what he described as “ordinary” people. However, the Sikh religion forbids the consumption of meat, fish or eggs and it was well understood by Mr. Dubb, who is himself a Sikh, that the food to be served at the wedding should not contain any ingredients of that kind. Indeed, the judge found that it was contrary to the rules of the temple for any meat, fish or eggs to be brought into the building.[4]In those circumstances it became necessary for the judge to decide how it had come about that some of the ras malai served at the wedding had contained egg. Mr. Dubb said that he had produced all the food himself using ingredients from reputable suppliers and that no eggs had been used in its preparation. The possibility of trace contamination was considered, but, having heard evidence from expert witnesses about the nature of the allergy and the development of adverse reactions in response to the consumption of different quantities of egg protein, the judge found that some of the ras malai had contained egg as an intentional ingredient rather than a trace contaminant. There was evidence that the number of guests at the wedding had exceeded expectations and that there had come a time when some of the food had begun to run out. Mr. Dubb denied that he had sent out for further supplies, but the judge rejected that part of his evidence and found that he had obtained an additional quantity of ras malai from an outside source and that it had contained egg. He also found, however, that Mr. Dubb had not expected it to do so.[5]In paragraph 28 of his judgment the judge considered whether a professional caterer owes a duty of care to people who suffer from food allergies and, if so, the nature of that duty. In the absence of any evidence of what is considered to be good practice in this area, he did not feel able to find that caterers would normally give warnings that dishes may or do contain eggs. That certainly accords with the experience of all the members of the court. He did find, however, that Mr Bhamra would not have expected there to be any egg in ras malai served at a Sikh wedding and would therefore have felt quite safe in eating it without further inquiry.[6]The judge’s approach to the issue of liability appears from paragraph 31 of his judgment, in which he said this:
“31. So, should the defendant have foreseen (a) that food with egg in it might injure a guest who was allergic to egg; (b) that a guest or guests allergic to egg were reasonably to be anticipated, who would not be suspicious of there being egg in the food because it was being served at a Sikh temple; (c) if so, did the defendant take reasonable care to ensure that there was no egg in the food he served?”
[7]The judge answered the first question ‘Yes’, because he found that Mr. Dubb knew that some people were allergic to egg and might therefore suffer some degree of adverse physical reaction to it. He answered the second question ‘Yes’ as well, because there was uncontradicted evidence that egg allergy is “common” and he was satisfied that, if he had thought about it at all, Mr. Dubb must have realised that it was possible that out of five hundred or so guests there might be one who was allergic to egg. The judge also found that at a Sikh wedding a person with egg allergy would not be expected to inquire about or avoid any of the food because he could reasonably assume that none of it would contain any egg.

The judge answered his third question in paragraphs 35 and 36 of his judgment in the following way:

“35. As to the ras malai, which I have concluded he bought in at a late stage, the difficulty here is one of lack of evidence. Since the defendant denies he bought in anything at all, as I have found he did, he did not explain the terms in which he ordered it or whether or how he checked it. If no express stipulation was made then he would not have done much to avoid the presence of the egg. On the evidence it is possible that ras malai might be supplied which did contain egg. There is no evidence about whether any ingredients list was attached to the bought in ras malai or whether it was read, if it was, and there is no evidence about whether the defendant asked his supplier whether there was egg in what he was obtaining. 36. The claimant has to prove her case. The legal burden is on her to show that the defendant was in breach of a duty. She has established on [the] balance of probability that the defendant, who knew or ought to have known of the possibility of diners with egg allergies, supplied a food containing egg to them, and did so without any warning and in circumstances in which nobody would reasonably expect for there to be egg. In my judgment the evidential burden, explained by Mustill LJ as “a matter of practical commonsense” in Brady v Lotus [1987] 3 All E.R. 1050 at 1059, then passes to the defendant to establish that this happened notwithstanding the exercise of reasonable care on his behalf. This, he might do in at least two simple ways, by saying that he contracted for egg free wholly vegetarian ras malai, or that he examined contents labels which did not reveal egg. There was no evidence to either effect because his case was that everything was made by his own staff, a case which I have rejected. Accordingly, I conclude that it is established that the defendant did not take reasonable care to ensure that there was no egg in the bought in ras malai.”
[9]Mr. Du Cann on behalf of Mr. Dubb challenged the judge’s conclusions both on the facts and the law. As to the facts, he submitted that he was wrong to find that eggs had been an intentional ingredient of the ras malai rather than a trace contaminant from an unidentified source. As to the law, he submitted that the judge was wrong to hold that Mr. Dubb owed a duty of care to prevent Mr. Bhamra suffering physical harm through eating eggs, that he was wrong in holding that Mr. Dubb was in breach of a duty of care without considering whether he knew or ought reasonably to have known that the ras malai he bought in might contain eggs and that he was wrong to hold that in the circumstances of this case a burden had passed to Mr. Dubb to show that Mr. Bhamra’s death had occurred despite the exercise of reasonable care on his part. The judge’s findings of fact[10]There was evidence from Mr. Dubb and others that he had prepared all the ras malai served at the wedding and that only the bread and sweets had been obtained from outside suppliers. Mr. Dubb also said that enough food had been prepared for all the guests and that there had been no shortage at any time. Mr. Du Cann submitted that the judge ought to have placed greater reliance on these aspects of the evidence, but his conclusion that the ras malai contained eggs as an intentional ingredient ultimately rested to a significant extent on the evidence of Dr. Pumphrey, an eminent immunologist, who as part of his researches had collated and studied all English fatal anaphylaxis episodes occurring since 1992. It was his evidence that although a trace contamination can cause a severe reaction culminating in death, ingestion of small quantities of that kind generally has only mild consequences. Tests showed that Mr. Bhamra was highly allergic to egg white, but he attached some importance to the high level of mast cell tryptase, a protein released during anaphylaxic reactions, that had been found in Mr. Bhamra’s blood and to the severity and rapidity of the reaction. He concluded that Mr. Bhamra had suffered a major reaction to a substantial dose of egg protein. If that was right, one of the dishes served at the wedding must have contained egg as an intentional ingredient.[11]Dr. Franklin, the expert witness called by Mr. Dubb, expressed a rather different view. He emphasised that a trace contaminant could cause a fatal reaction and said that if Mr. Bhamra had eaten a substantial quantity of egg, he would have expected him to experience symptoms within a very short time. He suggested that Mr. Bhamra’s reaction to eggs had become increasingly serious, but that was not borne out to any significant degree by Mrs. Bhamra’s evidence.[12]In our view the judge was entitled to prefer the views of Dr. Pumphrey to those of Dr. Franklin, supported as they were not only by his extensive knowledge and experience of anaphylaxis but by the studies he had undertaken into deaths caused by it. That being the case, there was a solid foundation for his conclusion that one of the dishes eaten by Mr. Bhamra contained egg as an intentional ingredient. Moreover, there was also evidence that by 2004, at any rate, recipes for ras malai were in circulation which included egg as one of the ingredients. There was some evidence that more people had attended the wedding than had originally been expected, that the food had begun to run low, that there were no freezers at the temple and that some of the guests had complained that the ras malai was frozen, or at any rate colder than they would have expected, suggesting that it might have been obtained at a relatively late stage in the proceedings from elsewhere. In the light of all this evidence the judge was entitled to find that Mr. Bhamra died as a result of eating ras malai made with eggs which Mr. Dubb had obtained from an unidentified source. Duty of care[13]The dispute in this case is not about whether Mr. Dubb owed a duty of care of some kind to Mr. Bhamra – it is accepted that he did – but about the nature and scope of that duty. In Caparo Industries Plc v Dickman [1990] 2 A.C. 605 the House of Lords decisively rejected the proposition that the existence of a duty of care is to be determined merely by foreseeability of harm and emphasised both the need for what is usually described as a sufficient degree of “proximity” between the claimant and the defendant and the controlling principle that the imposition of a duty of care should be “fair, just and reasonable” in all the circumstances. Thus, commenting on the earlier cases, Lord Bridge of Harwich said at page 617-618:
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
[14]The concepts of foreseeability and proximity, two of the three elements that were held in Caparo Industries Plc v Dickman to be necessary to support the existence of a duty of care, require the court to consider the relationship between the claimant and the defendant and the nature of the risk to which the defendant’s act or omission exposes the claimant. Moreover, it has long been established that when considering the question of foreseeability the court must have regard to the kind of damage which the defendant can or should reasonably foresee as being the likely consequence of the act or omission in question. It was with these principles in mind that Lord Bridge of Harwich said at page 627:
“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
[15]Lord Oliver of Aylmerton expressed the same thought in the following way at pages 651-652:
“It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained.”
[16]His Lordship then proceeded to cite with approval the following passage from the judgment of Brennan J. in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1 at page 48:
“The corollary is that a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member. . . . It is impermissible to postulate a duty of care to avoid one kind of damage – say, personal injury – and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another independent kind – say, economic loss. Not only may the respective duties differ in what is required to discharge them; the duties may be owed to different persons or classes of persons. That is not to say that a plaintiff who suffers damage of some kind will succeed or fail in an action to recover damages according to his classification of the damage he suffered. The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it.”
[17]Lord Oliver returned to this question in Murphy v Brentwood District Council [1991] 1 A.C. 398 at page 486A where he said:
“The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such - or, to use the favoured expression, whether it is of sufficient “proximity” - that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”
[18]It follows that 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. These cases and the principles to be derived from them are succinctly summarised in the judgment of May L.J. in Darby v The National Trust [2001] P.I.Q.R. 27, paragraphs 22-25.[19]Although in the present case the judge found that egg allergy is common, there was no evidence before him capable of supporting a finding that good practice requires restaurateurs and professional caterers to warn customers that dishes contain eggs, where that is the case. It is necessary to bear in mind that, although Dr. Pumphrey described the incidence of egg allergy as “common”, it is in fact present in only 0.1% of the adult population. If the risk of causing injury to those with egg allergy were generally understood to be significant, one would expect restaurateurs of all kinds routinely to provide warnings that dishes contain, or may contain, eggs or traces of eggs, but in fact that is not the case. We therefore approach the matter on the basis that there is no general duty to provide a warning of that kind, even though it is known that some people are allergic to eggs. (The position in respect of nut allergy may differ, but it is unnecessary to consider that for the purposes of this appeal.) It follows that a restaurateur or caterer who is providing food for people who, as far as he is aware, are of no more than ordinary susceptibility does not owe them a duty to take reasonable care to prevent their suffering harm through eating egg. In the present case, however, it was important to avoid the use of eggs for purely religious reasons. It is therefore necessary to ask whether in the circumstances of this case Mr. Dubb owed Mr. Bhamra a duty not merely to take reasonable care to avoid offending his religious sensibilities but to avoid causing him physical harm through serving food containing eggs.[20]Although the judge did not approach the matter in quite that way, his passing reference in paragraph 24 of his judgment to what Watkins L.J. in Lamb v Camden Borough Council [1981] 1 Q.B. 647 described as “an instinctive feeling that the event being weighed in the balance is too remote to sound in damages” shows that he was alive to the question. That is all the more to his credit because he does not appear to have received as much assistance on this part of the case as he might reasonably have expected. The main emphasis at trial was clearly on the claim in contract; the claim in tort seems to have been regarded as something of a makeweight. Indeed, the judge recorded in paragraph 23 of his judgment that the arguments on negligence were not much developed at the trial and that no relevant authority was cited to him by either side. Much the same may be said about the appeal, since neither party was in a position to develop detailed submissions on the legal principles to be applied to what is a difficult and, in our view, finely balanced case.[21]Having considered the general duty of care owed by a caterer to his customers, the judge considered the position with regard to food allergies generally before making a finding that a guest at a Sikh wedding would not have expected the ras malai to contain egg and would therefore have felt quite safe in eating it without further inquiry. He then asked himself the three questions in paragraph 31 of the judgment, to which we have already referred. The first was whether Mr. Dubb should have foreseen that food with egg in it might injure a guest who was allergic to eggs. The answer to that question is obvious: if a guest was allergic to eggs, food containing eggs would be likely to injure him. However, for reasons we have already given, that by itself would not be enough to impose on Mr. Dubb a duty of care to prevent causing injury by serving food containing egg.[22]The second question the judge asked himself was whether Mr. Dubb should have foreseen that there might be one or more guests who were allergic to eggs but who would not be suspicious that the food might contain egg because it was being served at a Sikh temple. This raises rather different issues, since it proceeds on the footing that although a person who is allergic to eggs can generally be expected to look after his own interests, in the particular circumstances of this case he might be put off guard. The judge findings are consistent with that approach. He said:
“33. In normal everyday life in a general environment people with an egg allergy would reasonably be expected to take their own precautions to see that they did not eat egg, either by avoiding food known or suspected to contain it, or by inquiring in cases of doubt. But at a Sikh wedding it would not be expected that such a person would avoid or inquire about any of the food served because he could reasonably assume that none would contain any egg.”
[23]In the present case there was obviously a sufficient degree of proximity between Mr. Bhamra and Mr. Dubb to support a duty of care in relation to the suitability for ordinary consumption of the food served at the wedding, but the harm in this case was not caused by any deficiency in that respect; it was caused by Mr. Bhamra’s inability to tolerate egg. As Lord Jauncey pointed out in Caparo v Dickman at page 655, a relationship of proximity is not itself always enough to determine whether the defendant is under a relevant duty of care; it is still necessary to consider the scope of the duty that arises from it. There is no reason to think that the risk that one of the guests at this wedding would be allergic to eggs was any greater than at any other gathering of comparable size. Accordingly, although Mr. Dubb was aware of the existence of egg allergy and can therefore be treated as having foreseen that someone might possibly be taken ill if any of the dishes he served contained egg, that alone would not be sufficient to give rise to a duty of care to prevent harm of that kind.[24]In our view, therefore, the critical question in the present case is whether the nature of the occasion was such as to extend the scope of the ordinary duty of care to encompass personal injury caused through the consumption of otherwise wholesome food containing eggs. The judge thought that it was. Although he did not express it in quite this way, it is apparent that in his view Mr. Bhamra was entitled to rely on Mr. Dubb to ensure that he did not suffer harm as a result of eating food that contained egg. It may not be particularly helpful to speak of an assumption of responsibility in a case of this kind, such an approach being more obviously useful in cases such as Henderson v Merrett Syndicates Ltd [1995] 2 A.C. 145 in which the relationship between the parties is contractual in all but name. Nonetheless, there is a sense in which that expression reflects what the judge appears to have thought was the position in this case. The question is whether he was right about that.[25]We have not found this an easy question to answer, primarily because the relationship between Mr. Dubb and Mr. Bhamra was essentially the same as that which exists between any restaurateur or caterer who provides food for the public and those who consume it, apart from the additional requirement that the food should not contain ingredients that were prohibited by the Sikh religion. 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, but it is not so clear that his duty extended to physical harm resulting from egg allergy. Nonetheless, there are four factors present in this case which in our view lead to that conclusion. First, Mr. Dubb was under a duty of care to avoid serving food containing eggs. For reasons given earlier, a person in his position would not ordinarily be under any such duty, but in the present case such a duty did exist. In addition, he knew that some people are allergic to eggs and that any such person would suffer illness or more serious injury if he ate food containing eggs. He also knew that those who attended the wedding, including any guest who happened to suffer from egg allergy, would expect the food to be completely free of eggs and would therefore feel confident that no harm would come from eating it. Finally, Mr. Bhamra, who knew himself to be allergic to eggs, had every reason to rely without inquiry on Mr Dubb to supply food which did not contain egg, as would not have been the case if this had been anything other than an exclusively Sikh occasion. In our view this very unusual combination of circumstances is sufficient to extend the scope of Mr. Dubb’s duty of care to harm in the form of personal injury suffered as a result of eating food containing eggs.[26]For these reasons we have reached the conclusion that the judge’s conclusion on this issue was correct. Negligence and the burden of proof[27]The third question which the judge asked himself was whether Mr. Dubb took reasonable care to ensure that there was no egg in the food he served. Mr. Du Cann’s first submission was that the judge failed to consider what he called ‘guilty knowledge’, by which he meant whether Mr. Dubb knew or should have known that ras malai is sometimes made with eggs.[28]The evidence bearing on the question of Mr. Dubb’s own knowledge was unsatisfactory and to some extent conflicting. At the inquest held in June 2004 his answers to questions put on behalf of one of the interested parties suggested that he was unaware that ras malai was ever made with eggs, but in the witness statement that he made for the purposes of these proceedings in February 2008 he said that he knew that some recipes, mainly from Pakistan, might well contain eggs. Mr. Du Cann submitted that this discrepancy may have been due to the fact that Mr. Dubb had become aware of variations in the recipe for ras malai only as a result of the death of Mr. Bhamra and been unaware of their existence at the time of the wedding. He also submitted that the judge’s finding that Mr. Dubb had expected to obtain ras malai made without eggs, amounted to a positive finding that he had no reason to expect that the ras malai he had bought in might contain eggs. Mr. Hunjan Q.C., on the other hand, submitted that paragraph 35 of the judgment contained an implicit finding that Mr. Dubb knew or ought to have known that ras malai obtained from outside sources might contain eggs.[29]We are unable to accept that the judge’s conclusions amount to a positive finding that, at the time he obtained further supplies of ras malai from an outside source, Mr. Dubb had no reason to think that it might contain eggs. Apart from anything else, the law would impute to Mr. Dubb all the knowledge that a competent Sikh caterer would have had about the matter. Unfortunately, the judge failed to make a specific finding about Mr. Dubb’s own knowledge; nor did he make an express finding whether at the time of the wedding a competent Sikh caterer would have known of the possibility that ras malai obtained from certain sources might contain eggs. However, we are also unable to accept Mr. Hunjan’s submission that paragraph 35 of the judgment contains an implicit finding that Mr. Dubb knew or ought to have known of that fact. Another witness, Mr. Jain, who had undertaken the task of supervising the work of food preparation on behalf of the host and who was himself a strict vegetarian, had previously been unaware that ras malai might contain eggs.[30]The judge dealt with the question of breach of duty in paragraph 36 of his judgment, to which we have already referred. Mr. Du Cann submitted that he was wrong to hold that a burden had passed to Mr. Dubb to show that he had exercised reasonable care to ensure that the ras malai he had obtained from outside sources did not contain eggs, particularly since the claimant had abandoned any reliance on the maxim ‘res ipsa loquitur’. He submitted that the judge had misunderstood what Mustill L.J. said in Brady (Inspector of Taxes) v Group Lotus Car Cos Plc [1987] 3 All E.R. 1050, 1059.[31]The concept of a shifting evidential burden of proof, to which Mustill L.J. referred in that case, is, as he himself observed, simply one of common sense. What he said was this:
“It is, however, submitted that the concept of a shifting burden has another meaning, relative to what is called the ‘evidentiary burden of proof’. Although this term is widely used, it has often been pointed out that it simply expresses a notion of practical common sense and is not a principle of substantive or procedural law. It means no more than this, that during the trial of an issue of fact there will often arrive one or more occasions when, if the judge were to take stock of the evidence so far adduced, he would conclude that, if there were to be no more evidence, a particular party would win. It would follow that, if the other party wished to escape defeat, he would have to call sufficient evidence to turn the scale. The identity of the party to whom this applies may change and change again during the hearing and it is often convenient to speak of one party or the other as having the evidentiary burden at a given time. This is, however, no more than shorthand, which should not be allowed to disguise the fact that the burden of proof in the strict sense will remain on the same party throughout, which will almost always mean that the party who relies on a particular fact in support of his case must prove it.”
[32]In the present case the legal burden of proof rested throughout on Mrs. Bhamra as the claimant; she therefore had the burden of proving not only that Mr. Dubb owed her husband a duty of care but also that he was in breach of that duty. However, once she had adduced evidence which, unless undermined or explained in some way, was sufficient to satisfy the judge that Mr. Dubb was in breach of duty, she would succeed on that issue unless he adduced some evidence to the contrary. In that sense, but only in that sense, an evidential burden would pass to him.[33]The judge found that Mrs. Bhamra had done enough to satisfy him on the balance of probabilities(a) that Mr. Dubb knew or ought to have known that one or more guests might be allergic to eggs,(b) that he had served a dish containing egg without warning and(c) that he had done so in circumstances in which nobody would have expected any of the food to contain eggs. The question is whether those facts, if unexplained, are sufficient to establish a breach of duty, thus imposing a burden on Mr. Dubb to call some evidence to show that there had been no want of care on his part.[34]In some cases the evidence called by the claimant is sufficient to establish a breach of duty on the part of the defendant even if it does not establish the precise nature of the negligent act or omission. An example might be the case of a car mounting the pavement and knocking down a pedestrian. That does not normally happen if the driver is exercising proper care, but might do so in the event of an unusual occurrence such as a sudden and unexpected failure of the steering mechanism. In the absence of any explanation, therefore, evidence that the accident occurred in the way described will support an inference that the driver was negligent, thus imposing a practical burden on him to explain how it occurred without fault on his part.[35]The judge pointed out that Mr. Dubb might easily have given evidence that he had contracted for egg-free, wholly vegetarian ras malai, or that he had examined labels showing the ingredients which did not reveal the presence of eggs, and appears to have thought that evidence of either kind would have been sufficient to defeat the claim. We are not entirely sure about that, because in the case of the first example, at any rate, much might depend on whether it was reasonable for him to trust his supplier. Both examples, however, assume that at the time in question Mr. Dubb knew or should have known that ras malai produced by some suppliers might contain eggs, but if neither he nor any competent Sikh caterer in his position had any reason to think that it might, he would have had no reason to take any precautionary steps and his failure to do so would not constitute a failure to take reasonable care.[36]In these circumstances we do not think that the judge was right to hold that the facts proved by Mrs. Bhamra were sufficient of themselves to establish that Mr. Dubb was in breach of duty. We accept that the need to comply with the demands of religious observance would call for quite a high standard of care, but in our view the additional fact that he knew that some guests might be allergic to eggs and would not expect the food served at the wedding to contain any does not provide any additional support for the inference that he must have failed to take reasonable care to ensure that no eggs were present. It follows that something more is needed if Mrs. Bhamra is to establish a breach of duty on the part of Mr. Dubb.[37]Much of the difficulty in this case derives from Mr. Dubb’s insistence that he did not obtain any ras malai from an outside source and from his consequent failure to identify that source or to explain what steps, if any, he took to ensure that it did not contain eggs. The judge did not accept his denial, but did not go so far as to find that he was lying. Mr. Hunjan submitted that much of Mr. Dubb’s evidence had been inconsistent and unreliable and certainly the judge appears to have found him generally unconvincing, but the events in question occurred a little over five years before the trial and it is possible that his memory was simply unreliable. It is not uncommon for people to convince themselves of the truth of recollections which are subsequently found to be false. That may be a charitable view in this case, but the fact remains that Mr. Dubb was not directly challenged in cross-examination with refusing to tell the truth and the judge did not find that he had been lying. In those circumstances we do not think that it would be right for this court to make such a finding for itself.[38]That being so, it is unnecessary to consider what, if any, inferences might properly have been drawn from the fact that Mr. Dubb had been deliberately concealing the truth about the source of the ras malai and any steps he had taken to check the ingredients. In some cases it is possible to infer that a defendant is lying in order to conceal facts that would damage his case and in some cases it is also possible to infer what those facts are. Where the defendant’s account has simply not been accepted as reliable, however, there is no sound basis for drawing any such inference. It follows that in our view Mr. Dubb’s failure to tell the court where he obtained the ras malai and in what circumstances does not provide any additional evidence to support Mrs. Bhamra’s case.[39]What was missing from Mrs. Bhamra’s case was a finding that at the relevant time Mr. Dubb knew or ought to have known that some makers of ras malai used eggs as one of the ingredients. It is unfortunate, therefore, that at the trial no one appears to have directed much attention to this question and that no finding was made about it.[40]Understandably, neither party to this appeal suggested that, if we were persuaded to allow the appeal because the judge’s existing findings of fact were insufficient to sustain his decision, the court might remit the matter for further findings of fact to be made or order a retrial. We were invited by the appellant to allow the appeal and dismiss the claim and by the respondent to dismiss the appeal. That means that we either have to take the judge’s findings of fact for what they are or to adopt a somewhat flexible approach to the process of appellate review by making supplementary findings of our own insofar as may be consistent with the findings made by the judge and justified by the evidence. In this context it is perhaps worth drawing attention to the fact that rule 52.11(4) of the Civil Procedure Rules expressly empowers an appeal court to draw such inferences of fact as it considers justified on the evidence. Moreover, we are satisfied that the approach which we propose to adopt is within the compass of a review of the decision of the lower court as provided for in the rules: see E.I. Dupont Nemours & Co. v S.T. Dupont [2006] 1 W.L.R. 2793.[41]As we have already observed, the evidence on this aspect of the case was conflicting and it is particularly unfortunate that the state of Mr. Dubb’s knowledge was not directly explored with him in cross-examination. One is left, therefore, with his responses to the questions put to him at the inquest, which in this respect were somewhat inconclusive, and the witness statement prepared for these proceedings, which he adopted as his evidence in chief. It is a striking feature of his witness statement that he simply states:
“Whilst I know that there are different recipes for ras malai, some of which contain egg, I am a Hindu Punjabi and I do not accept that there are any recipes for ras malai that contain eggs in my religion. . . . I accept that some recipes (I would contend mainly Pakistani recipes) may well contain egg in ras malai, but these originate from areas where Islam is the predominant faith and they do not have the same restrictions in their religion on the consumption of egg.”
He does not say when or how he became aware of the existence of alternative recipes and in particular makes no attempt to suggest that he was unaware of them at the time of the wedding. Whatever his spontaneous reaction to the questions put to him at the inquest, when he made his statement he had an opportunity to put forward a considered explanation of his position. If he had been unaware prior to Mr. Bhamra’s death that some recipes for ras malai contained eggs, it is difficult to believe that he would not have said so, since that would have assisted his case greatly, whatever he said about the origin of the ras malai. In those circumstances we feel justified in drawing the inference that he was aware at the time that some recipes for ras malai included eggs.[42]If one adds that finding to the other facts established by Mrs. Bhamra, they are sufficient to establish that Mr. Dubb was in breach of his duty of care. He was aware that some recipes for ras malai included eggs and therefore that ras malai obtained from some outside sources might do so. In the ordinary way it ought to be possible with the exercise of due care to obtain ras malai which does not contain eggs, for example, by choosing an appropriate and reputable supplier, by stipulating expressly that the product should not contain eggs, and by checking the list of ingredients, if one is provided. In the absence of some explanation of how the error occurred, therefore, the fact that the ras malai in this case did contain eggs is sufficient to support the conclusion on the balance of probabilities that Mr. Dubb failed to take reasonable care in one or more of those respects. That remains the case despite the fact that the evidence does not enable the court to identify the precise nature of the shortcoming.[43]In those circumstances we have reached the conclusion that the judge’s decision should be upheld and that the appeal should be dismissed.