This blog post is by James Beeton of 12 King’s Bench Walk.
This important package travel case represents a significant coup for claimants in the context of food poisoning cases. Although the package travel industry will be disappointed by the court’s decision, some comments in the judgment may suggest the imposition of a more demanding approach to establishing causation on the evidence. An earlier blog post considered in detail the arguments heard by the Court of Appeal; this post will consider the court’s judgment, handed down earlier today.
Background
The Claimants had purchased an all-inclusive package holiday from the Defendant tour operator. In the course of their holiday, the Claimants contracted food poisoning. They alleged negligence and breach of contract, relying on the Package Travel Regulations 1992 and the Supply of Goods and Services Act 1982 (“SGSA 82”), against the Defendant.
They succeeded on the breach of contract claim at trial but not on the other claim. HHJ Worster – who was also the judge in Antcliffe v Thomas Cook Tour Operations Ltd (Unreported) Birmingham County Court, 4 July 2012, a case which up to this point had represented the approach favoured by the courts in package travel food poisoning cases – accepted that the Claimants had only eaten at their hotel and that their illness had been caused by eating contaminated food and drink provided by the hotel. On that basis, he found that the Defendant had failed to provide food or drink of satisfactory quality, breaching a term implied into the contract by virtue of section 4(2) SGSA 82. However, significantly, it was not found that the Defendant had failed to take reasonable care.
The Defendant appealed against the finding that the food and drink should have been of satisfactory quality pursuant to s. 4(2) SGSA 82. They argued that the consumption of food and drink at the hotel by the Claimants involved no transfer of property: hence s. 4(2) SGSA 82 was not engaged. What was in fact provided was a licence to use the hotel’s buffet – this constituted a pure ‘service’ and not a ‘transfer of goods’ and so the judge should have concluded that the contract’s provisions were governed by the implied term found in s. 13 SGSA 82 that the services would be provided with reasonable care and skill. There had been no finding of a lack of due care by the hotel and in those circumstances they argued that the claim should have been dismissed.
The Claimants cross-appealed on the basis that, even if the food did not have to be of satisfactory quality under s. 4(2) SGSA 82, then such a term would be implied into the contract in any event under the common law.
Decision
In giving the leading judgment, Burnett LJ noted first of all that neither the terms of the Package Travel Regulations nor the Package Travel Directive gave any assistance in deciding the issue.
He began by confirming that the Defendant was right to concede that ‘food contaminated with bacteria such as to cause illness’ could not be considered to be of ‘satisfactory quality’ for the purpose of s. 4(2). He clarified later that the question of whether goods were of a satisfactory quality would be a matter of fact – but in the case of food contaminated in this way it was ‘difficult to imagine’ that it could ever be described as of satisfactory quality.
The Defendant was also right to concede that a contract could be mixed, in the sense of being both for the supply of goods and services, contrary to the early position adopted in the Grounds of Appeal, which argued that it would have to be one or the other: a classic example was a contract for the purchase and fitting of a carpet or kitchen unit.
Burnett LJ proceeded to analyse the substance of the Defendant’s argument, which he described (ominously for any trial advocate) as having ‘an elegant simplicity’. He considered the position in respect of food and drink consumed in England and Wales – in particular by reference to the decision in Lockett v A&M Charles Ltd [1938] 4 All ER 170. In that case, Mrs Lockett had contracted food poisoning after eating contaminated whitebait at a fish restaurant. Hilbery J had accepted that:
‘When persons go into a restaurant and order food, they are making a contract of sale in exactly the same way as they are making a contract of sale when they go in and order any other goods.’
He went on to conclude that:
‘It follows beyond all doubt that there is an implied warranty that the food supplied will be reasonably fit for human consumption. I hold that the whitebait delivered in this case were not reasonably fit for human consumption, and that there was a breach of warranty.’
Burnett LJ noted that no case had been cited which called into question the correctness of this decision, which applied in the straightforward circumstances of eating a meal in a restaurant which caused food poisoning because it was contaminated with bacteria.
In support of the contention that no property in the food and drink passed to the Claimants at the point of consumption, the Defendant had placed considerable reliance on the case of PST Energy 7 Shipping LLC and Anor v OW Bunker Malta Ltd and Anor [2016] AC 1034. Burnett LJ considered that case in detail.
It involved an agreement for the supply of fuel to a ship. The agreement consisted of two parts:
- To allow consumption of fuel prior to payment without property passing in the fuel so consumed; and
- To transfer property in any remaining fuel when the price for the fuel had been paid.
The contract was silent about whether property in the consumed fuel passed to the owners before or at the point of consumption, and this was a matter of dispute between the parties. Importantly for the purposes of the present case, the Supreme Court rejected an argument that property in the oil must have been transferred a nanosecond before it was consumed and concluded that title in the consumed oil had in fact never passed from one party to another.
Burnett LJ roundly rejected the applicability of PST to the facts of the instant case. PST was a case which depended upon the specific contractual arrangement between the parties: if the contract had been a straightforward one for the sale of fuel oil with no retention of title clause, property in the oil simply ‘would have passed on delivery, assuming the seller itself had property in them.’
Burnett LJ went on to comment that the court had ‘enjoyed submissions of a metaphysical nature which might surprise the many thousands of customers who enjoyed breakfast, perhaps with orange juice, tea or coffee, in their hotels or guest houses every morning in this jurisdiction or the world over as part of package holidays. Do they ever own the food and drink they are served? Do they own it when it is served to them on a plate? Do they own it when they serve themselves from the buffet? Do they own it when it is placed in their mouths?…’ In the end, a pragmatic conclusion was necessary, which bears setting out in full:
‘[I]n the absence of any express agreement to the contrary, when customers order a meal property in the meal transfers to them when it is served. The same is true of a drink served by the establishment. That is so whether the transaction has no other components, for example in a restaurant or café, or the transaction provides other services, the most usual being accommodation. It is unreal to suppose, for example, that the pizza placed in front of a customer remains the property of the hotel or restaurant any more than the content of a glass of wine or lemonade could do so after it was served to a customer. The fact that the food and drink may be laid out in a buffet to which customers help themselves can make no difference. When a customer helps himself to the meal or pours himself a drink property in the fare becomes that of the customer.’
The judge had therefore been correct: the contract was for both the supply of services and the supply of goods (namely, the food). The food supplied had not been of satisfactory quality because it had been contaminated by bacteria. On that basis, the appeal would be dismissed and it was not necessary to consider the Claimants’ alternative submission on the basis of the common law alone.
Burnett LJ also briefly addressed concerns expressed by the Defendant that package tour operators should not become guarantors of the quality of food and drink the world over when it was provided as part of the holiday which they had contracted to provide.
In attempting to assuage those fears, he emphasised that the onus rested on the Claimants to prove that ‘food or drink provided was the cause of their troubles and that the food was not “satisfactory”… 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 that food (or drink) was not of satisfactory quality in this sense in the absence of evidence of others who had consumed the food being similarly afflicted. Additionally, other potential causes of the illness would have to be considered such as a vomiting virus.’
Further, ‘[t]he application of high standards in a given establishment, when capable of being demonstrated by evidence, would inevitably lead to some caution before attributing illness to contaminated food in the absence of clear evidence to the contrary.’
McFarlane LJ and Sir Brian Leveson both agreed with Burnett LJ. Sir Brian Leveson in brief supplementary comments added that ‘there can be little doubt that once food has been taken onto the plate of the guest, it has been appropriated to him or her.’ Removal of food to eat later ‘might be a breach of an implied term that the guest is entitled only to take that which he or she wishes immediately to consume for the relevant meal but it could hardly be more than that.’
He also echoed Burnett LJ’s conclusion that ‘it will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.’
Comment
Both Burnett LJ and Sir Brian Leveson emphasised the need for a robust approach to causation. In practical terms, however, it is difficult to see precisely what their comments add to the current approach employed by the courts since Antcliffe and Kempson and Anor v First Choice Holidays. Sir Brian Leveson’s comments might be interpreted as raising threshold conditions to a finding of causation – i.e. (i) others being similarly affected; (ii) alternative explanations being excluded – but that does not seem quite correct, as he does not exclude the possibility of causation being established absent those factors, (although it may be ‘difficult (indeed very difficult)’ to prove causation without them). In that sense they surely simply retain their status as evidential factors to be weighed on the scales when the trial judge is determining the likely cause of a claimant’s illness.
Nor is Burnett LJ’s comment that high standards will lead to caution before attributing illness to contaminated food likely in practice to be of much consolation to package tour operators in all-inclusive cases like this. Once HHJ Worster had concluded on balance that Mr Wood’s illness was bacterial, it naturally followed in his view that (i) the most likely cause was food and drink and (ii) that the contaminated food had been consumed at the hotel – the standards employed were not in that sense relevant. On the other hand, it may be said that Wood is a particularly striking case in that all of the Claimants’ meals were consumed at the hotel: the restrictive tone of the comments may signal a less receptive approach by the courts going forward to cases involving food eaten outside of the hotel, for example on excursions as in Kempson. Whether that will in fact prove to be the case remains to be seen.
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