The Weekly Roundup: Passengers’ Plight and Experts’ Evidence

Articles | Mon 24th Aug, 2020

This week began with the news that the Portuguese President, who back in the day taught administrative law to our friend and publishing collaborator Carlos Torres, had rescued two kayaking tourists from drowning. Never ones to turn down a bit of publicity, and ever-mindful of the possibility of a Baywatch-style scene in slow-mo, we rushed to dust off the 1CL kayaks. But no sooner had we done so than the Australian Ruby Princess inquiry reported, and after that Jatinder Paul, of Irwin Mitchell, notified us of the decision in the most important gastric illness case since Wood v TUI. There’s never a dull moment in the travel world.

Griffiths v TUI UK Limited [2020] EWHC 2268 (QB): Accepting Uncontroverted Expert Evidence

Attentive readers will know that we produced a Special Briefing on this case shortly after judgment was handed down. We won’t repeat ourselves here, but suffice to say that Spencer J has endorsed the distinction between ‘quantitative’ and ‘qualitative’ food poisoning claims, that is to say between those claims which rely on the existence of an outbreak of illness, and those that rely on expert or other evidence on causation. In those cases in which the Claimant relies on expert evidence, and the Defendant has no such evidence, and fails to shake the factual basis on which the expert report has been produced, the opinion of the expert must be accepted unless it is clearly and obviously wrong.

The repercussions of this decision will be obvious to readers. It is now of the utmost importance to Defendants that they obtain their own expert evidence in these cases; it is no longer enough simply to challenge the conclusions of the Claimant’s expert in submissions. Nor can the obiter dicta in Wood v TUI be relied upon to support the assertion that in all gastric claims there must be evidence of an outbreak of illness (if indeed this argument ever was a persuasive one. It certainly never persuaded the author of this article).

Ever since the Court of Appeal so robustly rejected the Defendant’s floodgates argument in Wood v TUI the County Courts have been overwhelmed by what can only be described as a tsunami of diarrhoea and vomiting. They have responded by raising the evidential bar in relation to evidence on causation; uncontroverted expert conclusions on causation have routinely been rejected by judges content to substitute their own common sense for the expert’s opinion. Following the decision in Griffiths this will no longer be permissible.

It will be interesting to see whether more claims for gastric illness will succeed now that the nature of the evidential burden of proof has been corrected in favour of Claimants, or whether judges will simply allow Defendants a greater latitude in instructing experts in these low value claims.

Of course, the possibility remains that TUI may appeal the decision, but if they do, the Court of Appeal will have a chance to revisit Wood v TUI, potentially with unfavourable consequences for tour operators. Either way, the result in Griffiths must be assessed as being further bad news for an already beleaguered industry.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

Cruising for a Bruising? Offloading Cruise Passengers

After a five month bout with Covid-19, the world’s major cruise liners are battered, bruised, and desperately searching for a reprieve. But this month the industry at last reported some advancement, with the first major cruise liner setting sail in the Mediterranean since February.

As the baby steps towards a resumption of normality continue, the cruise industry is seeking to manage Covid-related risk by imposing strict health and safety protocols purposed to ensure a Covid-free “bubble” on board its ships. These measures include (but are not limited to) operating at 70% capacity, mandatory pre-departure testing, and the imposition of strict rules and regulations on off-board excursions.

When it comes to enforcing these protocols, it is clear that cruise liners are taking no prisoners. Last week, for example, a family found their cruise cut short after they broke the rules of an off-board excursion in Naples. After learning of the breach, the cruise liner’s management refused to let the family re-embark on the basis that they would threaten the carefully curated safety bubble on board the ship. The family were thus forced to find their own way home, presumably having to pay out of pocket for alternative accommodation and transport. One can be sure that the family were not best pleased, but what if anything can they or passengers in a similar situation hope to obtain by way of compensation?

In any case, the necessary starting point of the legal analysis is the terms and conditions of the cruise. It will be important to establish, for example, the precise parameters of the rules governing off-board excursions and the extent (if any) to which the passenger acted outside them. As ever, there is likely to be scope for argument on the interpretation of those rules and their application to the misdemeanour in question. An improper application of those rules and a wrongful early termination by the cruise liner would almost certainly entitle the family to compensation.

And what about the terms implied by the Package Travel and Linked Travel Arrangements Regulations 2018? Without more, early termination of the holiday contract will amount to non-conformity with the original contract, thus engaging the provisions contained in Regulation 15. However, the family’s accompanying right to compensation under Regulation 16(3) can be disapplied where, for example, the lack of conformity is attribute to the traveller: Regulation 16(4)(a). It seems likely the cruise operator would pitch its defence on that basis, that is, that the non-conformity (i.e., the early termination of the contract) was attributable to the family and their failure to adhere to the cruise liner’s health and safety protocol. Accordingly, absent any alternative route to compensation under the terms and conditions, the family in Naples (or passengers in a similar situation) may well find themselves without recourse to compensation for the costs of alternative accommodation and transport.

What to make of all of this? Well, the cruise industry has apparently identified strict health and safety protocols as its key lifeline during the era of Covid-19. The case of the family in Naples should serve as a warning shot to cruise line passengers with an adventurous streak. Woe betide the passenger that makes light of the on-board health and safety protocols, it seems…

About the Author

Henk Soede was called in 2019 and is chambers’ latest acquisition, having undertaken pupillage under the supervision of Andrew Spencer, Ian Clarke and Francesca O’Neill, during which he observed a wide range of chambers’ work, including claims of a cross border nature.

Cruising without Losing: the Ruby Princess

The independent enquiry into the outbreak of Covid-19 aboard the Ruby Princess has now reported. It will be recalled that when the vessel docked in Sydney in March this year and its 2,650 passengers disembarked, they were not tested for Covid-19, notwithstanding that some of them were known to have contracted the virus aboard the vessel. In the event, at least 900 cases of Covid-19 were associated with the liner, with 28 deaths. 62 people are known to have contracted the illness from passengers after they dispersed.

There had been suggestions that the authorities in New South Wales had been misled by the cruise operator into mischaracterising the vessel as being low risk; the inquiry found that although this categorisation was inaccurate, the authorities had not been misled by Princess Cruises. It concluded:

“There are no ‘systemic’ failures to address. Put simply, despite the best efforts of all, some serious mistakes were made.”

The inquiry’s conclusion will come as a relief to Princess’ parent, Carnival, which faces litigation arising from the outbreak. At least it cannot be said that it was dishonestly responsible for the spread of infection after the cruise disembarked, although the passengers’ claim under the Athens Convention is not affected by the inquiry’s findings. Presumably, too, those members of the public who were infected by passengers having disembarked from the vessel would also have a claim against Carnival if it could be shown that the passengers themselves were negligently infected in the first place. However, it should be borne in mind that these events occurred towards the beginning of the pandemic and before the virulence of the virus was fully understood, or the means of acquisition were completely clear. It is suggested that claims relating to this time period would be unlikely to be successful in the absence of compelling evidence of fault on the part of crew members, although as time has worn on, and now that cruises are operating again, claims for outbreaks are much more likely to succeed.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She was recently named Best Lawyers’ Travel Lawyer of the Year 2020/2021.

Flying without Crying: a Question of Quarantine

Much criticism has been levelled at the numerous blanket quarantine restrictions imposed by the Government over recent weeks and months, specifically the requirement for returning travellers to self-isolate for 14 days. It has not always been clear, to put it gently, where to locate the logical basis for many of the quarantine decisions, particularly where whole countries have been black-listed even though it was only very select locations therein experiencing any kind of infection spike. The concern of those in the industry, whose revenue depends on international travel, is that these requirements and associated inconveniences deter would-be travellers. The health of the aviation sector in the UK has been covered previously in the Weekly Round-Up, principally in respect of the Transport Select Committee’s most recent report, but needless to say the situation is delicate.

Heathrow Airport has taken matters into its own hands, at least in part, and set up its own Covid-19 testing centre for arriving passengers. Located outside Terminal 2, with a second due to open outside Terminal 5 shortly, passengers – at a cost of £150 per go – can be swabbed and tested, with a second follow-up test undertaken five to eight days later. The idea is that if the results are negative for both, they can be then be excused from ‘serving’ the remainder of the 14 days of quarantine.

Top brass at Heathrow, in particular chief executive John Holland-Kaye, stress that this will avoid the “quarantine roulette” faced by so many passengers in Spain and France, and open up flights to key trading partners such as the US, Canada and Singapore. He cites the Government’s own research, which shows that a double test has a high level of accuracy in screening for Covid.

However, the regime requires the green light from the Government, which thus far has been very reluctant to approve any kind of border testing system. Transport Secretary Grant Schapps reported that only 7% of cases would be picked up by a single test upon arrival, though it is unclear what is his riposte to Mr Holland-Kaye’s aforementioned point regarding the reliability of double-test systems.

One would hope for a decision in the next fortnight or so, though this does feel to be a very bungle-worthy issue. Provided the science behind the double-test reliability is good, it is difficult to see why or how the Government could say no to a system which requires no organisation or funding by the state. In terms of the attractiveness of the scheme, a Collinson poll of 22,000 frequent flyers found that half would be willing to pay for such a test to help ease travel restrictions.

About the Author

One of the more junior members of the team, Richard Collier was called to the Bar in 2016. Before that, he had worked as a Judicial Assistant to Lord Justice Jackson in the Court of Appeal. He is now instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims.

…And Finally…

Last week we brought you news of former Love Island contestant Rosie Williams’ new ‘White Collar’ collection aimed at the fashionable female lawyer. In our self-appointed role as fashion advisors to the profession we were interested to read this week that law-themed facemasks are now A Thing. Obviously we had ordered the 1CL masks some time ago, but it’s nice that others are joining the party. In the spirit of competition which is the hallmark of the travel law world, we’re offering a small prize to the best face mask slogan for a law-themed or indeed any other facemask; winner to be announced in next week’s Weekly Round-Up. Entries to sprager@1chancerylane.com.