Hill Dickinson partner Maria Pittordis explains the legal background, and Ian Taylor reports on the latest Appeal Court ruling
Lawyer Maria Pittordis, a partner and head of the marine and trade division at law firm Hill Dickinson, is a specialist in holiday sickness or gastric illness claims.
She said: “There has been an explosion in gastric illness [GI] claims. It’s very much a money-making process for lawyers.
“We’re seeing not just multi-party actions from people who have been on the same cruise or stayed in the same hotel, but people who have been on different cruises, sometimes even different hotels in different resorts.
“They’re always mixed with ‘quality’ complaints. Most of these, if brought on their own, wouldn’t be awarded costs, but if mixed with GI claims in a multi-party action they’re going to recover costs as well.
“The illness is hardly ever specified. If there aren’t lab reports to show what it is, they [claimants] say it’s [an] infective bacterial or viral [agent], and that makes it expensive because you have to show implementation of processes and procedures relevant for both – and they can be very different. Claims allege it’s as a result of the food, water, hygiene of the resort or ship.
“You don’t know a claim is fraudulent – you have to look at it. But if you’re going to start investigating whether every claim is fraudulent it entails a lot of cost.
“Looking at the science can help. You have claims management companies asking ‘Have you been ill on holiday in the last two and a half years?’ My husband received a call from one of these companies asking if he had recently been on an all-inclusive package holiday. He said yes. They said ‘Were you ill?’ He said no. They said ‘Are you sure?’ He said yes. They said ‘You know if you were ill you could claim up to £5,000.’ These are the kind of tactics we’re seeing.
“It seems UK holidaymakers who go to Spain become ill. Nobody else does, even in the same resort.
“Why the increase? It’s down to the lawyers. Two changes from April 1 2013 have led to the boom in claims. One is the introduction of ‘Qualified one-way costs shifting’ in personal injury claims.
“It means you [a tour operator] can win a case but you won’t get your costs unless you can show the claim was fraudulent, which is difficult, so insurance companies and tour operators are more likely to settle.
“The UK introduced an online system with fixed costs for claims over £1,000 and up to £25,000 on April 1 2013, which led the business of a lot of claims firms to dry up.
“But the online portal is only for personal injury claims in the UK. It doesn’t apply to claims outside the UK.
“So what is the best kind of claim to bring? Holiday claims. And what kind of claims can be multiplied – illness claims. That is why we’ve ended up with this situation.
“Only if we have fixed costs or [if] holiday claims outside the UK go into the online portal are you going to see these claims drying up, because that is when the lawyers will stop making money.
“We need to make it harder. If we keep settling these claims, we’re just making these lawyers richer. There has to be some forceful claims handling otherwise it’s going to go on.”
Pittordis confirmed that from July 2018, under the EU’s new Package Travel Directive, anyone selling a ‘package’, including what is now deemed Flight-Plus, could be subject to these kind of claims.
Court of Appeal: Wood v TUI 2017
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.