Stephanie Prior, Partner
Medicine, Science and the Law
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Stephanie looks at four recent cases...
AMJARIT KAUR BHAMRA (WIDOW & ADMINISTRATRIX OF THE ESTATE OF KULDIP SINGH BHAMRA, DECEASED) v PREM DUTT DUBB (T/A LUCKY CATERERS) (2010)
[2010] EWCA Civ 13
CA (Civ Div) (Sir Anthony May (President QB), Wall LJ, Moore-Bick LJ) 20/01/2010
D, a caterer, had provided food for guests at a Sikh wedding, held at a Sikh temple. D was aware that Sikh culture forbade the consumption of eggs, and knew that as such, the food for the wedding was to be egg free.
“Ras Malai”, one of the dishes D served at the wedding, had been obtained from an outside source, however, and contained egg as one of its ingredients. A, a guest at the wedding who was allergic to eggs, ate the “Ras Malai”, suffered an anaphylactic reaction and subsequently died. A’s widow, B, brought an action for personal injury against D, alleging that D had been negligent in providing food that contained egg.
At the first instance, it was held that D should have foreseen that some wedding guests might have been allergic to egg, that food containing egg might harm such guests and that it being a Sikh wedding, such guests would not suspect the food to have contained egg. D appealed.
On appeal it was held that “there had been no evidence to support a finding that good practice required professional caterers to warn customers that dishes contained eggs” furthermore there was “no general duty to give such a warning”. Therefore, whilst D might have foreseen that some wedding guests suffered with an allergy to eggs, this did not of itself place a duty on him to prevent injury to those guests. It was conceded, however, that D owed A a duty of care to provide food that was fit for consumption. However, as A’s injury was caused by his allergy, not as a result of eating food unfit for purpose, this duty had not been breached.
Nevertheless, D had been required to provide food that was free from eggs as the food was for a Sikh wedding, and as such was also “under a duty to take reasonable care not to serve dishes containing egg”. The court held that this duty extended to include “physical harm as a result of egg allergy” because it was reasonably foreseeable that some guests might suffer with an egg allergy, and that with it being a Sikh wedding, guests might reasonably assume that the food was egg free.
It was concluded that the “unusual combination of circumstances extended the scope of D's duty of care to harm in the form of personal injury suffered as a result of eating food containing eggs”. D had breached this duty of care and as such was liable for A’s death.
CORONIAL LAW
DOWLER v HM CORONER FOR NORTH LONDON (2009)
[2009] EWHC 3300 (Admin)
QBD (Admin) (Dobbs J) 6/11/2009
D was a general practitioner and had prescribed, O, her patient, anti-psychotic medication as O suffered with paranoid schizophrenia. O was living in supported accommodation at the time and developed diabetic ketoacidosis, a rare side effect of the anti-psychotic medication, and subsequently died.
An inquest was held into O’s death and the coroner concluded that O had died as a result of a recognised side effect of the anti-psychotic medication, but that his death was “contributed to by neglect”. The basis for this conclusion was an entry in O’s medical records, made by D two days prior to O’s death. The entry by D recommended that O undergo a “fasting blood sugar test” urgently, to eliminate the possibility that O was suffering with diabetes. O was to fast before the test could be carried out, however, thus precluding the possibility of D carrying the test out the same day. However, the test was not carried out the following day either and the coroner held that D had failed to alert hostel staff to the urgency of the test in question, and in doing so had failed to provide O with basic medical care. The coroner concluded that O’s death had been avoidable and heavily criticised D’s actions.
D alleged that the coroner’s findings were unsupported by the evidence available and that as she had not been properly informed of, nor invited to attend the inquest, breaches of the Coroners Rules 1984 had occurred. As such, D applied for the findings of the inquest to be quashed and for a new inquest to be held.
In light of the above, it was held to be appropriate for the inquest to be quashed and for a new inquest to be held be pursuant to the Coroners Act 1988 s13. Further it was held to be in “the interests of justice” for the inquest to be heard by a different coroner o this occasion in order to avoid the possibility of bias as well as to avoid any embarrassment to the original coroner or indeed D.
FAMILY
RE M (CHILDREN) (2009)
[2009] EWHC 3172 (Fam)
Fam Div (Hedley J) 7/12/2009
Care proceedings were issued by the local authority in respect of M and F’s two young children. The purpose of the care proceedings was to assess M’s ability to separate herself from F permanently, and to effectively hide herself and her children from F on a long term basis.
Both M and F had parental responsibility for the children, however M had made allegations of violence against F and his family including allegations of “attempted violence with knives, strangulation, assaults with a screwdriver, boiling water and petrol, false imprisonment, threats to kill her and kidnap of a child”. At the time F was in prison and already had an extensive criminal record and a long association with violent crime. Since F’s incarceration, M had attempted to return home on a number of occasions, but had had to leave each time on account of threats from F’s family. M and her children were thought to be at significant risk of harm from F and his family, and it was thought that this risk was likely to be ongoing.
M therefore applied for an Order for F to be discharged from care proceedings. M contended that it was in the children’s best interests that not only they be safe, but that she be safe in order to take care of them. She asserted that “To allow F to be involved in the case, whatever care was taken and whatever redactions to documents were made, would be to offer him the opportunity to visit his evil intentions on her by discovering her whereabouts.”
Whilst to discharge F would be to take the unprecedented step of excluding a father with parental responsibility, whose whereabouts were known, from participating in care proceedings involving his own children , M and her children were not to be placed at risk. The possibility of F’s partial participation using redacted documents was considered, however the risk of accidental disclosure and “the magnitude of consequences should the risk eventuate” outweighed F’s right to participate. Should F obtain any information as to M and their children, it was thought certain he would find M and seek vengeance upon her. It was held therefore, that in the circumstances the balance was tipped in M’s favour and F was discharged from proceedings.
CRIMINAL LAW
R v JASON DAVARIFAR (2009)
[2009] EWCA Crim 2294
CA (Crim Div) (Stanley Burnton LJ, Penry-Davey J, Sharpe J) 9/11/2009
S, the complainant, alleged that during an evening at her flat D, against her will, penetrated her mouth with his penis.
At his trial, D maintained that they had had sexual intercourse on previous occasions and that he had expected the same to take place on the evening in question, but that “nothing untoward had occurred”.
After the jury had retired to deliberate their verdict, counsel acting for D told the judge about evidence of a previous unrelated allegation of sexual abuse made by S, as disclosed by the prosecution. S had alleged, as an adult, that she had been abused as a child by the adopted son of her foster parents, however the CPS had not pursued the matter. Counsel acting for D said that he would have liked to have raised the matter with S in court, but accepted that at this stage in the trial, it was too late.
Shortly after this, the jury returned with a unanimous guilty verdict and D was convicted of raping S. D appealed.
The grounds for D’s appeal was that S had previously made false allegations of a sexual nature, which the jury at his trial had been unaware of and as such the jury were not in possession of all the facts when returning their verdict. D based his allegation that S’s earlier allegations were false on the fact that there were discrepancies in S’s accounts of the facts and in addition to this, the CPS had not prosecuted the case. D contended that the previous false allegations had a serious impact on S’s credibility, and that a re-trial at which this evidence would be adduced was his only hope of a fair trial. Counsel for S argued that the evidence upon which D had been convicted was so strong that the inclusion of this further evidence would not have altered the outcome of his trial.
It was held that counsel for D must have a “proper evidential basis for alleging that S’s previous allegation was false” before it would be permissible to cross examine S upon the matter. A proper evidential basis was held to be “evidence on which a jury could be satisfied that the previous allegation was false”. In this case, however, there was very little evidence to support the fact that S’s previous allegations were false, and as the matter was one for the court to decide, the opinion of the CPS was irrelevant. It was held that the case against D was very strong, and that even if the evidence in question were to go before a jury, there was no real prospect of his acquittal. Accordingly D’s appeal was dismissed.
For further information email Stephanie Prior or call 020 7940 4000.
