Victory in Holiday Illness Appeal
Robert Weir QC and Stephen Cottrell appeared on behalf of the successful Appellant instructed by Jatinder Paul and Clare Comiskey of Irwin Mitchell.
In Griffiths v Tui UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer overturned the decision of HHJ Truman sitting in Birmingham County Court. The Appellant had booked an all-inclusive package holiday in Turkey with Tui. He fell ill with gastroenteritis during the holiday and his symptoms were so severe that he was hospitalised and is left with permanent symptoms. Under the Package Travel Regulations and the Supply of Goods and Services Act 1982, Tui, as tour operator, would be liable for illness caused by unsatisfactory food or drink supplied to the Appellant at the hotel. The issue was causation. The Claimant relied on the expert evidence of a microbiologist who concluded that the Appellant’s illness was caused by consuming food or drink at the hotel. The Respondent did not agree the Appellant’s expert evidence but failed to call any expert evidence of its own or attempt to have the Appellant’s expert cross-examined at trial. Thus the only expert evidence on causation was that of the Appellant’s expert.
At trial HHJ Truman accepted criticisms made of the Appellant’s expert evidence by the Respondent, namely that in concluding that contaminated food at the hotel had on balance caused the Claimant’s illness, the expert had failed to rule out other potential causes. The judge therefore found that causation had not been made out.
On appeal, Martin Spencer J considered the leading case of Wood v Tui Travel PLC [2018] QB 927. He concluded that Wood did not require an expert explicitly to ‘rule out’ competing potential causes of infection in a holiday sickness claim based on food poisoning. He also considered the correct approach to be taken by a court in unusual circumstances such as these where an expert report was ‘minimalist’ but where the report was ‘uncontroverted’ by the evidence of a witness of fact or another expert and where the expert was not cross-examined. He rejected the Respondent’s suggestion that the expert evidence could be disregarded where the report was lacking in detail and, following a thorough review of the authorities, held that the only minimum requirements for the contents of an expert’s report are those set out in Part 35 of the Civil Procedure rules and that the judge should have accepted the evidence of the expert as it was not controverted.
Read the full judgment here.
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