Two Recent Holiday Sickness Decisions – Dishonesty and Alternative Causes

This blog post is by James Beeton of 12 King’s Bench Walk.

Introduction

We are grateful to James Candlin of 12 King’s Bench Walk for sending us copies of the judgments in two recent holiday sickness claims which he successfully defended at trial: Lavelle v Thomas Cook Tour Operators (Unreported) 10 July 2017, Liverpool County Court and Bartle v TUI UK Ltd (Unreported) 24 August 2017, Port Talbot County Court. Both judgments raise interesting points for practitioners in this area in relation to both dishonesty and causation.

Dishonest Claims

Lavelle (a transcript of which is now available on Westlaw), generated significant publicity in the media when DDJ Herzog rejected as fundamentally dishonest the claims of Ms Lavelle and her partner Mr McIntyre that they and their children had become ill shortly after arrival at a hotel in Gran Canaria as a result of poor food hygiene practices.

It is worth noting the following features of the case that the judge considered important in reaching this decision:

• The expert medical evidence in support of their alleged sickness was based entirely on accounts given by telephone over three years post-accident. No complaints were made in resort, nor was any assistance sought at the time – whether medical or otherwise.
• A customer satisfaction questionnaire filled in on the plane coming home by Mr McIntyre made no mention of the problems allegedly suffered by the family while on their holiday and in fact rated the food provided as “good”.
• The judge accepted the Defendant’s evidence that there had been no complaints from any other Thomas Cook customer about food or illness at the hotel.
• Under pressure of cross-examination, the Claimants gave inconsistent accounts of the onset, nature and duration of their symptoms to that given in their witness statements and medical reports.
• Ms Lavelle had taken her daughter to see their GP six days after returning from the holiday in relation to a different complaint, but failed to mention the fact that the family had suffered from sickness whilst away (and which, allegedly in her case, was still ongoing).

The judge’s comments on the Claimants’ failure to raise the issue whilst in resort bears setting out in full, since it is a common feature of many holiday sickness cases:

‘I find it wholly implausible that neither Ms Lavelle nor Mr McIntyre would raise the issue as a complaint whilst on holiday. They could have asked to be moved to another hotel, and if the food standards were as poor as they said, that is obviously what they would have done. I have no doubt they are both loving and caring parents and I just do not believe they would have made no attempt to get any medical assistance for their two young children over a period of more than five days when they were ill. Nor do I believe that they would have taken those children back to the same hotel dining room to eat for the remainder of the holiday.’

In addition to the factors mentioned above, further cases reported in the media (for example, Marissa McLean’s rejected claim against Thomas Cook reported earlier this year) emphasise the potential importance of:

• Photographs or posts on social media which undermine the account of illness.
• Excursions or activities which are inconsistent with the symptoms described.

In summary, the key features arising out of these cases are: (i) failures to report the accident at an early stage, (ii) inconsistency in the Claimant’s account(s) of their symptoms (iii) objective contemporaneous evidence (such as documents or photographs) which is inconsistent with the fact of sickness and (iv) a lack of complaints from other visitors to the hotel in question.

Those features are reflected to a significant extent in the (unusual) warning notice issued by the SRA in respect of holiday sickness claims in early September 2017. Practitioners should therefore be on the lookout for these features both when deciding whether to take on these cases or to defend them.

Alternative Causes

Bartle v TUI UK Ltd is an interesting case because it illustrates the difficulty that an honest Claimant may have in proving causation under the more stringent test set out in Wood v TUI Travel Plc t/a First Choice [2017] EWCA Civ 11.

Mr Bartle alleged that he became ill as a result of food poisoning during a package holiday at a hotel in Turkey. DDJ McKay accepted this account (subject to some clarification of Mr Bartle’s symptoms). The expert medical evidence, which was provided by a single joint expert in gastroenterology, was largely unfavourable to the Defendant. However, the judge rejected the claim on the basis that causation had not been established:

• A key feature of the case was that the Claimant revealed that he had swum in the sea regularly whilst on holiday. It is known that certain viruses (including rotavirus, norovirus and calcivirus) can survive in seawater.
• This proposition was recognised in Burnett LJ’s judgment in Wood at [29], where he said that:

‘Such illness can be caused by any number of other factors. Poor personal hygiene is an example but equally bugs can be picked up in the sea or a swimming pool [emphasis added]. In a claim for damages of this sort, the claimant must prove that food or drink provided was the cause of their troubles and that the food was not “satisfactory”.

• The Defendant’s evidence that the hotel had good food hygiene practices in place was accepted by the judge. He noted that he would have expected the Claimant to make a complaint about such practices to the hotel if they had really been a cause for concern.
• There were in fact some complaints of sickness at the hotel at the time of the Claimant’s stay – but these represented a very low percentage of the number of guests in resort.
• The presence of a dedicated doctor on site illustrated how seriously the hotel took the health of its guests.
• The judge noted that Burnett LJ had recognised that the presence of good standards or hygiene and food monitoring at the hotel was an important consideration in determining causation at [30]:

‘The 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.’

As a result, the judge found the following:

‘I have concluded that the food hygiene at the hotel was excellent and was unlikely to be the cause of Mr Bartle’s illness. He has failed to prove any of the breaches of contract or improper performance alleged in paragraph 7 of the Particulars of Claim. In my judgement [sic] it is significant that in providing his report Dr Bloom appears to have been unaware of the daily swims in the sea which Mr Bartle enjoyed. These swims were clearly a potential opportunity for Mr Bartle to ingest polluted water and become ill in the manner he describes without the hotel food or drink being responsible … In my judgement [sic], had the doctor seen and heard all the evidence that I have, he may well have reached a different conclusion.’

Practitioners must therefore focus on investigating and discounting alternative potential causes of sickness. Defendants may be able to rely on the fact that a potential source of sickness has not been discounted as undermining an expert’s conclusion that food poisoning is responsible for the Claimant’s symptoms (particularly where there is evidence of otherwise good food hygiene practices at the hotel). Claimants must be alive to this line of argument and ensure that all potential sources are put to the medical expert in advance of the trial.