A UK Court of Appeal ruling in January could make it more difficult for tour operators to contest gastric illness claims they feel to be unfair.
The ruling on Wood v Tui removed a defence against claims brought under the Package Travel Regulations where a hotel can demonstrate it took all reasonable precautions to prevent food contamination. Spanish lawyer Marie Rogers of Madrid-based law firm Rogers & Co, who acts for the insurers of hotels, said: “It means a hotel could do everything possible and still be found liable.”
The case involved a Mr and Mrs Wood who brought a claim against First Choice (TUI) over an incident of “acute gastroenteritis” on an all-inclusive holiday at the Gran Bahia Principe Hotel in the Dominican Republic in 2011.
Mr Wood spent several days in hospital. Mrs Wood also became ill. The judge in the original claim accepted both had consumed only food and drink provided by the hotel and suffered as a result of eating or drinking “contaminated fare”.
However, evidence of “the care taken to comply with high standards of food hygiene” by the hotel led the judge to find the claimants had failed to establish the hotel was at fault under the Package Travel Regulations. Instead, the judge found First Choice liable under the Supply of Goods and Services Act 1982.
First Choice appealed, but the case was taken over by the hotel which brought in commercial lawyers unfamiliar with travel. They challenged the finding by reference to the 1982 Act, resulting in complex legal arguments which the Appeal Court referred to as “submissions of a metaphysical nature”.
The Appeal Court noted: “Underlying this appeal was a concern that package tour operators should not become the guarantor of the quality of food and drink when it is provided as part of the holiday they have contracted to provide.”
However, the Court rejected the appeal on the grounds it did not contest the finding that “Mr and Mrs Wood suffered illness as a result of contamination of the food or drink they consumed”.
Barrister Sarah Prager of law firm 1 Chancery Lane, who acts for claimants in defendants in personal injury claims, said: “Wood v Tui was an unmitigated disaster. It has encouraged the claims farmers because no one has to prove the hotel has done anything wrong.”
However, some of the ruling might prove useful in contesting a claim. Lord Justice Burnett argued: “The claimant must prove that food or drink provided was the cause of their troubles and that the food was not satisfactory [and] proving that an episode of this sort was caused by food which was unfit is far from easy.
“It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved; and it might be difficult to prove . . . in the absence of evidence of others who consumed the food being similarly affected.”
His colleague Sir Brian Leveson agreed, arguing: “It will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink . . . unless there is cogent evidence that others have been similarly affected. The fact is that the judge found this had been proved in this case.”
Mr Wood was awarded £16,500 and Mrs Wood £7,500.
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