The Supreme Court is considering the use of expert evidence in holiday sickness claims. Ian Taylor reports
The Supreme Court hearing last month of the holiday illness case, Tui v Griffiths, centred on the question of whether and in what circumstances a court can reject the evidence of an expert witness.
Peter Griffiths suffered a serious gastric illness while on holiday in 2014 and brought a claim under the Package Travel Regulations, alleging poor hygiene standards at the hotel.
A County Court judge dismissed the claim on the grounds she was not satisfied with the expert evidence that Griffiths’ illness was caused by contaminated food and drink at the hotel.
She argued: “The Court is not a rubber stamp just to accept what someone has said . . . It is incumbent on the medical experts to provide some reasoning for their conclusions.”
In doing so, the judge followed the Court of Appeal ruling in the important case of Wood v Tui in 2016. This involved a claim of gastric illness on an all-inclusive holiday in 2011 where the claimants won damages under the Supply of Goods and Services Act 1982.
The case went to the Court of Appeal which rejected Tui’s argument that this Act should not apply but noted “concern that package tour operators should not become the guarantor of the quality of food and drink the world over”.
Despite finding against Tui, the Appeal Court justices raised the legal ‘bar’ for gastric illness claims by ruling: “Such illness can be caused by any number of other factors [than food and drink] . . . 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] other potential causes of the illness would have to be considered such as a vomiting bug.
“The claimant must prove that food and drink provided was the cause of their troubles and that the food was not ‘satisfactory’.”
After losing in the County Court, Griffiths’ lawyers appealed to the High Court, arguing the judge was wrong to rule out expert evidence when it had not been challenged by another expert or during cross examination.
In legal parlance, the expert’s evidence was “uncontroverted”, meaning there was no factual evidence to undermine it, no competing expert evidence and the expert had not been subject to cross examination.
The High Court ruled for Griffiths.
Tui appealed to the Court of Appeal, its lawyers arguing it was for a court to evaluate the substance of an expert report, and won by a majority decision.
But in a dissenting opinion, Lord Justice Bean argued Griffiths “must be wondering what he did wrong. He instructed a leading firm of personal injury solicitors, who instructed an eminent microbiologist whose integrity has not been questioned.”
He further argued, Griffiths and his wife were “entirely honest witnesses”. The expert “gave his opinion that on the balance of probabilities” Griffiths’ illness was caused by contaminated food or drink at the hotel and “no contrary evidence was disclosed or called, and the expert was not cross examined. Yet the claimant lost his case.”
In his opinion, Griffiths did not have a fair trial and courts “should not allow litigation by ambush”.
There were several complicating factors in the case.
The claimant was sufficiently ill to require two nights in hospital where he was diagnosed with acute gastroenteritis and three pathogens identified, including the diarrhoea-causing parasite Giardia.
This can be caught from contaminated food, but also be caught from drinking water, swimming, touching contaminated surfaces or direct contact with someone infected.
The claimant had mostly eaten at the resort but did also eat at the airport before departure and once outside the hotel.
The expert witness had acknowledged it was possible Griffiths had contracted two illnesses as he became ill on the third night of the holiday, felt sufficiently well by the sixth day to go outside the hotel for a meal, but then deteriorated on the ninth day and was admitted to hospital.
During the hearing last week, Supreme Court Justice Lord Briggs acknowledged the significance of the case for the travel sector, noting the “concern that package tour operators are being put under extreme liability when people suffer a stomach bug [on holiday].”
But he also pointed out to Tui’s lawyers: “All of these matters could have been considered by a forceful cross examination [of the expert witness].”