Following the decision of the Court of Appeal in Wood v TUI UK Limited  2 WLR 1051 the number of claims for food poisoning and related gastric illness has greatly increased, notwithstanding what was said in that case by Sir Brian Leveson regarding what he considered to be a fallacious floodgates argument. In response to the tsunami of claims which followed Wood, Defendant tour operators have concentrated their arguments on the issue of causation, and in particular on the reliability or otherwise of the expert evidence in that regard.
On 20th August 2020 Spencer J, in Griffiths v TUI UK Limited  EWHC 2268 (QB), provided guidance on how trial judges should deal with some of these arguments. His judgment makes for interesting reading for those representing Claimants and Defendants alike.
The facts of the case will be familiar to all practitioners who work in this field. The Claimant had booked an all inclusive package holiday with the Defendant for the period 2nd to 16th August 2014. Throughout the holiday he was to be accommodated at the Aqua Fantasy Aqua Park Hotel in Izmir, in Turkey. He duly embarked on the holiday, but fell ill with the symptoms of gastric illness on the evening of 4th August 2014. He had eaten exclusively at the hotel prior to falling ill, although he did eat outside the premises on 7th August 2014, after becoming unwell. He reported his illness to the Defendant’s representative in resort. His symptoms worsened on 10th August, and on 13th August he was admitted to the local hospital, where he provided a stool sample which tested positive for a number of parasitic and viral pathogens.
After the acute phase of the illness had subsided, Mr Griffiths was left with significant symptoms of irritable bowel syndrome. The trial judge found that his claim for pain, suffering and loss of amenity alone should be valued at £29,000, indicating that his symptoms fell towards the more serious end of the spectrum.
The Decision at First Instance
Dr Linzi Thomas, a consultant gastroenterologist, and Professor Hugh Pennington, a consultant microbiologist, had provided expert reports supportive of the Claimant’s claim that his symptoms were caused by consuming food or beverages provided to him by the hotel. The Defendant had obtained permission to obtain and rely upon its own expert evidence in gastroenterology and microbiology, but had not done so, with the effect that at trial it had no expert evidence in response to the Claimant’s expert reports. Nor did the Defendant apply to cross examine the experts at trial, leaving the trial judge with only the evidence of Professor Pennington on the issue of causation. Since the judge accepted the evidence of the Claimant and his wife as being true and accurate, the factual underpinnings of Professor Pennington’s report were not shaken, and as a result, his evidence was uncontroverted, that is, it could not be challenged either factually or by reference to alternative expert evidence.
On 4th September 2019 Her Honour Judge Truman nevertheless dismissed the Claimant’s claim. She referred to the passages of the decision in Wood v TUI commonly relied upon by Defendant tour operators, and went on to adopt the criticisms of Professor Pennington’s report made by counsel for the Defendant:
“…Counsel for the defendant was unhappy about a number of matters within the report. The Professor thought it unlikely that the claimant had been simultaneously infected with Giardia, adenovirus and rotavirus. That on the face of it would appear to suggest that the claimant had been infected on at least two separate occasions. The claimant’s history of being ill, recovering somewhat and then being ill again, might also suggest two separate infections, and indeed the report says that the possibility of there being two separate infections cannot be ruled out. Nothing further is then said about that. There is no explanation as to why the meal eaten on 7 August might not be at fault for the possible second illness and why the conclusion is that the claimant acquired his illness following the consumption of contaminated food or fluid from the hotel.
Further, counsel points to the lack of reasoning between setting out the incubation periods (one to fourteen days for Giardia, average seven), the claimant falling ill after two and then nine days after arrival at the hotel, and then saying that the illness is due to the hotel, with again nothing to say why this is so. The report makes no specific mention of the food the claimant ate at the airport before reaching the hotel (which falls within the incubation periods given), nor what he ate in the local town, and why those potential sources should be discounted. Counsel notes that, despite the Professor being asked to comment on possible breaches in health and hygiene procedures and having been provided with the hotel’s documentation on their procedures etc, nowhere is any breach, causative or otherwise, actually listed and no comments on any perceived breaches were made. Counsel submits that the court might consider that this lack of comment is because the Professor found no breaches. I also note that whilst the Professor says that a viral cause is much less likely than a bacterial one due to the fact that the claimant did not suffer from vomiting, that doesn’t explain how it was that adenovirus and rotavirus were found in the claimant. If they had no effect, or could otherwise be discounted, I would have expected the report to say in more detail why that was so, in the same way that it provided a reasoned explanation for why the claimant was not likely to be suffering from amoebic dysentery. The fact that viral infections more usually cause vomiting on the face of it means that sometimes you can have a viral infection without vomiting. Further, whilst a viral cause is apparently less likely than a bacterial one due to the lack of vomiting, I’m not clear how this fits in with the fact that only parasites and viruses were isolated in the sample, not bacteria, and the pathogens which were found were known to cause stomach upsets.
The defence had set out a number of non-food related methods of transmission for the claimant’s illness from the identified pathogens. The report does not say why any of those should be discounted in this particular case. Similarly the report does not say why the possible routes for infection listed in the Particulars of Claim (air conditioning, leakage from a baby’s nappy in the swimming pool etc) are less likely to be applicable, or, if they might be relevant, what the breaches were in the health and hygiene procedures which led to the Claimant falling ill…”
These criticisms, which will not be unfamiliar to practitioners, seem on the face of them to be reasonable. To this extent, the decision of Her Honour Judge Truman is a helpful reminder that microbiologists’ reports should consider all possible causative vectors in cases of this nature.
In this case, Professor Pennington had not done so, and Her Honour Judge Truman found that this constituted a lacuna in the evidence which was fatal to the Claimant’s case.
The Decision of Spencer J on Appeal
The Claimant’s solicitors, Irwin Mitchell, appealed the decision on the basis that where expert evidence is uncontroverted, subject to exceptional circumstances it should be accepted by the court; and since there were no exceptional circumstances in this case, Her Honour Judge Truman ought to have accepted the evidence at face value and found for the Claimant.
Spencer J agreed. He accepted counsel for the Claimant’s interpretation of the Wood v TUI dicta relied upon by the trial judge, namely that there is a distinction between those gastric claims in which the Claimant relies on the occurrence of an outbreak of illness at the hotel as proving causation (‘quantitative claims’) and those claims where he or she relies on expert evidence to prove causation (‘qualitative claims’). In the latter category, lack of evidence of others falling ill is clearly of less significance than in the former.
On the issue of whether Professor Pennington’s conclusion ought to have been accepted, Spencer J came down firmly on the side of the Claimant. He held:
“…I take the view that a court would always be entitled to reject a report, even where uncontroverted, which was, literally, a bare ipse dixit, for example if Professor Pennington had produced a one sentence report which simply stated: “In my opinion, on the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel”…However, what the court is not entitled to do, where an expert report is uncontroverted, is subject the report to the same kind of analysis and critique as if it was evaluating a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence. Once a report is truly uncontroverted, that role of the court falls away. All the court needs to do is decide whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all…”
So long as an uncontroverted report complies with CPR Part 35, then, and so long as it is not a mere bald assertion of fact, it must be accepted without further criticism or enquiry on the part of the court. It need not set out the chain of reasoning leading to the expert’s conclusion, nor need it deal with any gaps or lacunae in that chain.
The Defendant’s failure to challenge the expert evidence by way of its own expert evidence or by way of cross examination therefore enabled the Claimant to succeed in his claim notwithstanding the brevity of Professor Pennington’s report, and the criticisms made of it by the trial judge:
“It may be that, had the Defendant served controverting evidence, Professor Pennington would have expanded upon his reasoning, for example in a meeting of experts, and such reasoning would have found its way into a joint statement. As it turned out, that step never became necessary because the evidence of Professor Pennington stood alone. Nor did the Defendant seek to challenge the reasoning that might have lain behind Professor Pennington’s conclusions by calling for him to be cross-examined, as it had every right to do. In those circumstances, the court must assume that there is some reasoning which lies behind the conclusion which has been reached and summarised, and that this reasoning is not challenged.”
It will be interesting to see whether TUI appeals the decision; it has until 21st September to do so. On the one hand, the decision will affect those thousands of gastric cases in which the Defendant has no expert evidence, but merely relies on criticisms of the Claimant’s expert evidence. On the other, TUI has an unhappy track record in the Court of Appeal, and it may be reticent to revisit what was said in Wood v TUI; the deployment of the obiter dicta relied upon by Her Honour Judge Truman not infrequently leads to claims being dismissed.
On thing is certain: if the decision is not appealed, many more gastric claims are likely to succeed, at least in the short term, whereas if it is, we are likely to be provided with a further explanation and clarification of the evidence necessary to prove causation in this type of claim. These are interesting times.
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.