This blog post is by James Beeton of 12 King’s Bench Walk.
This blog post considers two recent cases on holiday sickness and fundamental dishonesty: McLean v Thomas Cook Tour Operations Ltd (Unreported) 9 August 2017, Worcester County Court (which was touched on briefly by this blog in this post) and Caldwell v Thomas Cook Tour Operations Ltd (Unreported) 25 September 2017, Stockport County Court.
McLean v Thomas Cook Tour Operations Ltd
It will be recalled that Ms McLean had purchased a package holiday in Sharm el Sheikh, Egypt. Her account of being ill was undermined in the course of cross-examination on the basis of damning social medial posts that she had made during her holiday. There was no evidence produced from the hotel.
DJ Khan made a number of interesting comments concerning not only dishonesty, but also the medical evidence and causation.
On the Medical Evidence
On the medical evidence, the judge commented as follows at  and :
‘I make comment of the medical report first of all. The claimant relies on the medical report of Dr Evans. My overall assessment of that report is that it entirely based on self-reporting by the claimant. There was no physical examination, I have to say somewhat surprisingly in these sorts of matters; it was dealt with by telephone. As I understand it, the doctor did not have the claimant’s medical records and for reasons which are clearly obvious there was no independent testing done for example, of stool samples, which of course would not be relevant 11 months post this holiday.
Importantly, Dr Evans was not told what the claimant had eaten and when she had eaten whatever it was she had eaten that made her unwell. His report, although well written, appears to base his conclusions on probabilities. In simple terms, he opined the more food was consumed at the hotel, the greater chance of contamination. Of course, in simplistic terms, that is right, but that does not assist in determining what caused the illness or contamination. There is no assessment by Dr Evans of the chance of contamination from the food eaten at the excursion the day before, namely the quad biking excursion the evening before for example. I conclude that the medical report has quite simply little evidential or probative value and the conclusions, for the reasons I have set out, are flawed and do not assist me in determining the claim. Clearly this is a claim that is going to be determined on factual findings based on the claimant’s evidence.’
This approach demonstrates that it may in some holiday sickness claims be worth attacking an unconvincing medical report on the basis of the poor substantive reasoning employed by the expert. Such a strategy will assume particular importance in cases where no permission has been given for the defendant to produce evidence from a expert gastroenterologist or microbiologist.
In such cases, reference may be made to comments on the nature and value of expert evidence by the Supreme Court in Kennedy v Cordia (Services) LLP  UKSC 6 at  – namely, that a mere assertion of causation lacking proper reasoning does not just carry little weight: it is ‘worthless.’ What carries weight is the reasoning, not the conclusion. Ultimately it is the court that acts as decision-maker on the basis of the evidence and this function cannot simply be delegated to the expert.
At  and , DJ Khan commented on the evidence and his conclusions on causation:
‘It was, of course, raised at the beginning of this hearing, and it is clear the claimant has not, her written evidence, set out what I would call chapter and verse on what she ate and when she ate at the hotel. It cannot be expected the claimant can say what caused this contamination, but I would have expected some detail on when the claimant was eating at the hotel and when eating elsewhere. Again, in today’s day and age, one might have expected photographs of the food area evidencing the complaints the claimant makes. That is not to say that it is fatal to any claim, but again, one would have expected some corroborating evidence in that respect.
‘In this matter, it is difficult to see how the claimant is going to prove that the food at the hotel caused the illness which she complains of. I say it difficult but not impossible, of course. However the difficulties are these. There are numerous other relevant causes: for example the claimant ate elsewhere on the night before, when she was quad biking with, on her evidence, food prepared and brought in foil containers in the desert. That was the night before the claimant reported having an upset tummy and other symptoms. In addition in the days leading up to that event the claimant went to the beach and had been in the sea and ridden a camel. The Claimant had also shared a shisha pipe and had been away from the hotel complex, and all of those occasions could, of course, have been potential contaminants. What the complainant would have to do is provide clear and cogent evidence that the food that the hotel served caused the contamination or the illness she suffered, and on balance the claimant simply cannot prove that because of the other potential causal factors and, in particular, eating out in the desert at the quad biking excursion the day before.’
The need to discount alternative causes stems from the comments of Burnett LJ in Wood at . It also echoes the approach taken by DDJ McKay in Bartle v TUI UK Ltd (Unreported) 24 August 2017, Port Talbot County Court (considered in the previous post on this blog).
DJ Khan’s conclusions on dishonesty appear at  to :
‘However, in this matter, I go further, having considered the evidence I heard about the Facebook entries. They show the claimant apparently enjoying herself whilst on holiday, which of course will be consistent with the claimant not being ill at all. The claimant has, of course, provided an explanation, which is that she was trying to make her ex-boyfriend jealous and give the impression that she was having a good time on this holiday. Having heard that evidence, I am satisfied the explanation from the claimant is neither plausible nor credible. In particular when one examines the entries starting from those on 24 September which involve comments and conversations the claimant has with her friends and family during the period that the claimant says she is unwell, those comments go well beyond what would be reasonable comments to make one’s ex-boyfriend jealous. They are normal conversations the claimant is having and would expect to have on holiday with her friends and family. There is some detail there which goes beyond simply posting a selfie or a profile picture that indicates what a good time the Claimant is having so that an ex-boyfriend sees those comments/selfies.
In light of the totality of the evidence I have heard including the written and oral evidence, I am satisfied that it is more likely than not that the Facebook entries provided the true description of the claimant’s holiday. I do not accept the claimant’s account that the highly relevant entries, namely those on 28 and 29 September, present a false account for an ex‑boyfriend.
I am satisfied that the claimant was not suffering from gastroenteritis from food contamination on 28 September when on the yacht trip, nor for the remainder of this holiday, as claimed by the claimant. On balance, I did not find the claimant’s account truthful when comparing that to the Facebook entries and the oral evidence before me today. Overall, I found the claimant’s account not credible.’
Caldwell v Thomas Cook Tour Operations Ltd
This case involved a claim for illness arising out of the claimant’s package holiday in Menorca. The claimant said that he and his 10-year-old son had become ill as a result of eating contaminated food. However, he had also apparently filled in a customer satisfaction questionnaire on the return flight which confirmed that no members of his party were ill during the holiday. The claimant said that it was not him who filled in the questionnaire but one of his sons. DDJ Colvin’s findings on credibility are helpful:
- He found it highly improbable that the claimant would not have reported his illness at any stage either during or after the holiday given that this was an expensive family holiday and they were apparently confined to their room for several days  and .
- There was no mention of a specific incident of the claimant eating some ‘pink chicken’ in the letter of claim or statement of case, despite the claimant relying on that in his witness statement .
- The explanation that it was the claimant’s son who filled in the satisfaction questionnaire was ‘quite astonishing’ and was rejected. It was clear, having looked at the questions, that they had been answered by an adult.
The conclusion of dishonesty naturally followed:
‘Of course, alleging illness, as the claimant has, is not something that he could have been mistaken about. The report questionnaire that I found was completed by the claimant makes it clear that no members of the party were unwell during the holiday. Of course, that is not the case that has been put before the court. In the circumstances, I find, as I am sure I will be invited to do by the defendant, that this is a claim that is fundamentally dishonest.’
This postscript is to mention a potential trap for defendants in responding to holiday sickness claims. Specifically, defendants should be wary of admitting liability subject to causation where they intend to admit only that food hygiene standards were not properly adhered to at the time of the illness. An admission of liability may be construed as an admission that the supplier exposed the claimant to food contaminated by a pathogen. Such exposure would constitute a breach of contract arguably entitling the claimant to nominal damages whether or not they can go on to prove that they subsequently became ill as a result.