Holiday Sickness: Lavery & Lavery v TUI UK Limited

 

As one of the first successful holiday sickness trials since Wood v TUI UK Limited, Lavery & Lavery v TUI UK Limited, successfully won by Barrister-Direct Limited raises some important points about Holiday Sickness Claims in the new landscape. The Judgment, now available on Lawtel is as follows:

IN THE COUNTY COURT AT BRADFORD

BEFORE:

DEPUTY DISTRICT JUDGE MAHMOOD

Exchange Square Drake Street Brad fo rd West Yorkshire BD1 1JA

CLAIMANTS DEFENDANT

MRS LINDA LAVERY & MR LESLIE LAVERY -and-

TUI UK LTD

Legal Representation

Mr Ian Skeate (Counsel) on behalf of the Claimants Miss Bronya Hartley (Counsel) on behalf of the Defendant

Other Parties Present and their status

Mrs Linda Lavery – First Claimant

Judg me nt

J

Deputy District Judge Mahmood:

  1. These claims arise out of an alleged holiday illness, which occurred whilst the Claimants were staying in Sharm el-Sheikh in Egypt.
  2. It is common ground that the Claimants went on a 14-day all-inclusive packaged holiday between 20th June 2013 and 4th July 2013. It is Claimants’ case that the first Claimant became unwell on 22nd June 2013 and the second Claimant became unwell
  3. on 28th June 2013. The Defendant does not challenge the fact of the Claimants’ sickness, but does raise issues in respect of the cause for this. The Claimants contend that they contracted food poisoning due to the poor food hygiene standards at the hotel. It is averred that they ate at the buffet in the hotel and nowhere else. They claim that the food was not served at the appropriate temperature. They claim that some of the food was recooked and some was undercooked. They also claim there were no fridges to store the salads, which were kept out in the open, and they aver that the cups were dirty, grotty and chipped, and generally unclean. They also allege that they found cats and flies around the restaurant, in particular, around the eating areas.
  4. The Claimants rely on the 1992 regulations, given that this was an all-inclusive holiday. It is alleged that Sections 4 and Section 15 of the Supply of Goods and Services Act are applicable in that it was an implied term of the holiday agreement that food would be safe for consumption and of satisfactory quality. The Claimants rely on additional implies terms, including implied terms of reasonable care and skill to ensure that the food was reasonably safe for consumption, the food was stored safely, cooked properly and reasonably free from pathogens. The Particulars of Claim also makes reference to an implied term in relation to the cleanliness of the hotel; it is averred that the hotel had to be kept reasonably hygienic and clean at all material times.
  5. The Claimants allege that their illness was caused as a result of the Defendant’s breaches of contract. They rely on several factors, succinctly summarised in the skeleton argument of Mr Skeate (Counsel for the Claimants), including the fact

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  1. That they were in good health immediately before the holiday;
  2. their sickness developed within a short time of their arrival;
  3. both experienced the same type of illness implying there was a common
  4. cause;
  5. neither went on any excursions thereby negating any sensible argument that
  6. the illnesses could have been caused by other unrelated factors;
  7. neither of them ate from outside the hotel;
  8. others within the hotel also contracted similar illnesses and
  9. the hotel facilities were dirty and not of a reasonable standard.
  10. Both Claimants rely on the medical reports of Dr Sarah Norman, who opines that the probable cause of their illnesses was the contamination at the hotel in which the Claimants dined at.
  11. The Defendant admits that the contract was subject to various implied terms to the effect that reasonable care and skill would be exercised in the provision of accommodation and related facilities, but the Defendant avers that the standard of conduct by which it ought to be judged, however, should be limited to the standard and custom and practice applicable in Egypt at the relevant time. Furthermore, the Defendant denies that there was any strict obligation to ensure that all food would be kept fit for human consumption at all times, and, in particular, the Defendant denies the applicability of the doctrine of strict liability. The Defendant further avers that they did not act in breach of contract, and they rely on the Claimants’ alleged failure to report matters to the hotel as soon as they became unwell. In particular, the Defendant claims that there is no evidence of any specific breach of contract on the part of the Defendant. In essence, the Defendant puts the Claimants to strict proof on issues of breach and causation. The Defence refers to a number of matters, including
  12. the possibility that the Claimants might have eaten out;
  13. neither of the Claimants reported matters to the hotel;
  14. gastric conditions can develop through overindulgence and other unrelated
  15. causes. The cause of the Claimants’ illness cannot be ascertained with any degree of certainty.

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  1. I have heard evidence from the Claimants on all issues. The Defendant has not adduced any witness evidence on any specific issue. Rather surprisingly, the Defendant has also chosen not to adduce any evidence in respect of the condition of the hotel, its facilities and its standards of hygiene. Despite this, the Defendant continues to challenge the issue of liability and, through Counsel, has chosen to further its Defence by cross-examining the Claimants at length today.
  2. I am grateful to both counsel for their assistance in identifying the salient factual issues. I consider that both Counsel have presented their respective cases with eloquence and care.
  3. Turning to the issue of liability and causation: the Defendant admits that this was a packaged holiday and therefore it admits that the holiday was subject to the 1992 regulations. The Defendant further admits that it is liable for the proper performance of the obligations under the contract irrespective of whether that performance was carried out by other suppliers. Insofar as the Defendant contends that its liability for any illness caused from food provided by the hotel is not strict and/or that local standards ought to be considered when addressing the issue of the appropriate applicable standard this, in my judgement, misrepresents the law. The recent authority of Wood v TUI Ltd (2017) is, relevant. Both parties rely upon it and both parties referred to passages during their submissions. This case firmly establishes that the tour operator will be strictly liable if guests become ill from consuming contaminated food at their hotel. However, a Claimant is still required to prove that the illness was a consequence of food which was not of satisfactory quality. It is not necessary for a Claimant to establish fault on the part of the hotel or to rely on the Regulations in order to succeed in a food poisoning claim against a tour operator. Providing the Claimant can show that he/she became ill as a result of eating contaminated food provided to under their holiday contract. In such circumstances, it is no defence for a Defendant to argue that this happened despite the hotel taking all reasonable care to avoid food poisoning. Accordingly, the Defendant’s argument, that local standards apply and that the foreseeability of the consequence of any breach is relevant to the issue of liability, is in my judgement unsustainable.
  4. In my judgment the evidential burden of proving the existence of the alleged illness and the fact that this was caused by contaminated food provided by the Hotel rests

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with the Claimants. The Defendant’s Counsel rightly points out that it is not enough for a Claimant to simply invite a Court to draw such an inference purely from the fact that a Claimant became unwell whilst on holiday. The Court is required to look at all the relevant circumstances, including any available evidence in respect of the hygiene standards of the hotel. As I said earlier, rather surprisingly in this case, the Defendant has not chosen to adduce any such evidence. Accordingly, the evidence in this case is limited to the testimony of the Claimants and their relevant medical evidence.

  1. In my judgement, the issue of liability boils down to one simple issue: have the Claimants proven on a balance of probabilities that their illnesses were caused by contaminated food provided to them at the hotel? I have listened carefully to the competing submissions on this point and I have listened carefully, in particular. to the evidence of the Claimants. The evidence was tested at great length in cross- examination. Having listened carefully to such evidence I have no hesitation in finding for the Claimants on the issues of liability and causation.
  2. The Claimants gave evidence that they found that the food was undercooked, left out in the open and they noticed that there were no fridges to store some of the food. They gave evidence that they saw flies and cats in the vicinity of the hotel and in region of food in particular. They gave unchallenged evidence that the cups at the hotel were grotty, chipped and dirty. They were cross examined at length and yet remained steadfast on all salient aspect of their evidence. I found their testimony persuasive, and I have come to the conclusion that both Claimants were credible witnesses. It is highly relevant that
  3. prior to the holiday both Claimants were in good health and yet within two days of arriving at the hotel the first Claimant had fallen ill and her husband followed six days later;
  4. the fact that these symptoms developed shortly after arriving in Egypt implies, in my judgement, that the illness, in all probability, was contracted by the Claimants whilst in Egypt;
  5. the fact that both Claimants contracted similar symptoms implies that the cause of their conditions must also have been the same;

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  1. the fact that the second Claimant contracted his illness eight days later militates against any suggestion the Claimants’ condition may have been caused in the UK or whilst on flight to Egypt.
  2. The Claimants gave unchallenged evidence was that they only ate food provided by the hotel. This, in my judgement, excludes the possibility of any external cause.
  3. Neither Claimant went on any excursions.
  4. Both Claimants gave evidence of the poor state of hygiene on display at the hotel. There is nothing to gainsay the Claimants’ account in this regard. The Claimants also gave unchallenged evidence that there were no serving spoons in the vicinity of the dishes and people developed a tendency to use the same spoons in different foods. On some occasions the Claimants saw people using their hands to handle food. Again this demonstrates, on the face of it, a poor standard of hygiene at the hotel.
  5. Both Claimants also gave evidence that that they witnessed other guests falling ill whilst at the hotel. Although there is no direct, independent evidence as to the cause of those illnesses, it is, to some limited degree, corroborative of the Claimants’ case that standards of hygiene may have been lacking at the hotel. At the very least, and I put it no higher than that, it raises suspicions about the standard of hygiene overall at this hotel.
  6. As against this, the Defendant has chosen not to adduce a single piece of evidence about the standards of the hygiene at the hotel, nor is there any evidence to suggest or imply that the Claimants might have contracted their illnesses due to alternative matters unrelated to the hygiene at the hotel. In the course of submissions, however, notwithstanding this lack of evidence, Miss Hartley, on behalf of the Defendant, floated the possibility that the Claimants might have contracted their illness due to a norovirus. Suffice it to say there is not one shred of evidence in support of that theory. Miss Hartley also referred, during the course of her submissions, to the lack of pathogens found in the second Claimant’s stool when he was examined after he returned to the UK. It is relevant that the Claimants’ medical expert’s opinion remains unchanged. Her conclusion is based on a balance of probabilities; she concludes that the illnesses were caused due to contamination at the hotel, most likely from food. She accepts that she cannot say this with a level of certainty, but remains convinced of the same on a balance of probabilities. In the circumstances,

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doing the best I can on the limited evidence that I have available to me, in my judgement it seems more likely than not that Claimants’ illnesses were caused by the consumption of contaminated food provided by the hotel.

  1. In my judgement the first and second Claimant suffered food poisoning, as alleged, and the cause of this was, in all probability, the poor standards of hygiene at the hotel.
  2. Turning to the issue of loss: both Claimants claim damages for personal injury and damages to reflect diminution of value and also loss of enjoyment.

18. Dealing with the personal injury aspect first; the Claimants’ claims are both supported by the medical report of Dr Norman. In the case of the first Claimant, Dr Norman has produced two reports. The first and more detailed report is dated 17th

June 2016 and then there is a much shorter version on 27th September 2016. Dr Norman, in her report, identifies the fact that the Claimant developed stomach upset, nausea, pain and diarrhoea. She also developed diarrhoea, which lasted some 14 days and felt unwell for some 22 days. However, she goes on to record the fact that in her opinion the first Claimant’s symptoms may well have resolved rather quicker than first recorded, and she alludes to the GP records of the first Claimant, which suggest the first Claimant’s symptoms may have lasted only two to three days. On this issue I heard evidence from the first Claimant. She came across as a reliable historian. She said, in evidence, that her symptoms lasted 12 to 14 days, but the diarrhoea may well have continued shortly after this and she experienced a full resolution of her symptoms in three weeks. She accepted that she hadn’t been to see a doctor whilst at the hotel because there was no doctor available, and she also accepts that she did, to some degree, self medicate. However, she did attend at her GP’s surgery on 7th July 2013, together with the second Claimant.

19. The Defendant challenges the first Claimant’s version of events. The Defendant relies on the medical entries referred to at pages 122 to 123 of the bundle. Those entries suggest that the first Claimant’s symptoms of diarrhoea lasted only two to three days. The first Claimant was cross-examined on this specific issue. Her evidence was that she was ill throughout her holiday and remained sick for a couple of days after she returned. She was adamant of this during cross examination. She

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claimed in evidence that she felt weak and physically ill even after coming back, and she explained that she had to use a toilet on the plane on the way home, which she said was very embarrassing. That, in my judgement, militates against the suggestion that her diarrhoea lasted only two days.

  1. The first Claimant explained in evidence that she suffered from vomiting for a couple of days, diarrhoea, which lasted almost two weeks, and she generally felt hot and unwell for a period of six to seven days. Whilst it is true that the first Claimant did not mention the issue of vomiting to Dr Norman when she spoke to Dr Norman I note that that consultation took place by phone only. The first Claimant told me on oath today that she was definitely sick during the relevant time, and I accept her evidence. As stated earlier, I found her to be a credible and compelling witness.
  2. Having considered the evidence overall, it seems to me that I have a choice between, as Mr Skeate put it, hearsay evidence on the one hand and live evidence on the other. I prefer, without hesitation, the live evidence that I have heard on oath today. Having considered the evidence, I find the first Claimant gave me clear and forthright evidence. Her evidence was to the effect that her symptoms lasted around 12 to 14 days with full recovery shortly after this. I therefore assess damages on the basis that the first Claimant recovered within three weeks, albeit her intrusive symptoms lasted only twelve to fourteen days, with vomiting for a couple of days, diarrhoea which lasted almost two weeks and a feeling of hot and general unwell. I have been referred to the relevant bracket in the JC guidelines of £770 to £3,300. Both counsel accept that is the appropriate bracket that I should be looking at. I have also been referred to a specific case, the case of Roberts v TUI UK Ltd, dated July 2017, in which similar symptoms lasting 7 days attracted an award of £1,500. I accept that the first Claimant’s condition was not debilitating, and this perhaps explains why she did not attend at a GP or seek medical advice immediately on the development of her condition. Nevertheless, her illness altogether just short of three weeks, and I assess, in the circumstances, general damage at £2,000.
  3. Turning to the second Claimant, again I have been referred to the report of Dr Sarah Norman, which states that the second Claimant developed stomach upset, nausea, pain, diarrhoea. According to the second Claimant those symptoms lasted some 45
  4. days. However, there is reference in that medical report to the fact that the 2nd Page 8 of 10

Claimant may well have recovered by 30th July 2013. The report also identifies symptoms of vomiting and fever. These additional symptoms should have resolved within one to two weeks. However, it is suspected that the second Claimant developed colitis, which, according to Dr Norman, would have led to a lingering of his symptoms.

  1. The second Claimant gave me evidence in respect of his injuries, and again I find that his evidence was forthright, clear and compelling. His evidence was to the effect that
  2. his symptoms started on 28th June. He suffered from vomiting and diarrhoea. This continued for seven to eight days after returning home. He felt unwell for 30 odd days and he had abdominal pains, which continued for 45 days. He accepts that he did not see a doctor at the hotel because there was no-one available, but he was, when he returned to the UK, referred to a colorectal surgeon by his GP. I conclude that his symptoms lasted 30 days with minor symptoms lingering for a few days thereafter, up to a period of 45 days in all. However, I accept Miss Hartley’s submissions that his most intrusive symptoms lasted for the first few weeks and his symptoms after 30 days were, it seems, relatively minor. Taking all matters into account, in my judgement the appropriate award for the 2nd Claimant is £3,000.
  3. Turning to the final two heads of loss; diminution value and loss of enjoyment. The
  4. holiday commenced on 20th June. The first Claimant fell ill on 22nd June. The
  5. second Claimant fell ill on 28th June. The first Claimant had to spend much of her time in her room, and she tells me, and I accept, that things were so bad that she tried to arrange a flight back home but unsuccessfully. The second Claimant also suffered a ruined holiday, not simply because of his illness, which came about a few days later, but also because he had to stay with his wife, naturally and understandably, during this difficult period. He told me in evidence that it had been their intention to go snorkelling and boating, but he was not able to do so, and nor was his wife, and he had to stay with his wife, who, of course, was quite unwell.
  6. Assessing damages for loss of enjoyment is an imprecise art, and decided cases can serve no more than a useful guideline. Each case necessarily turns on its own facts and must reflect the degree of loss to the individuals involved. Mr Skeate rightly submitted that the value of the holiday is not necessarily a ceiling or the limit of any award. However I accept that in respect of an ordinary holiday which is not governed

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by any special memory or occasion such as an anniversary, I ought to consider carefully the expectation each party had from that holiday, the cost of the holiday and the extent to which it was ruined as a consequence. As Miss Hartley rightly pointed out, I must also be careful to avoid the prospect of awarding damages twice for the same element. It is equally relevant to keep in mind that there has not been a total failure of consideration in this case, and at least a significant part of the costs involved of the holiday will have been attributable to the cost of the flights. I am aware that the cost of each Claimant’s holiday was £700. The holidays were ruined to a similar extent.

26. In the circumstances of this case, I have decided to assess the Claimants’ claims in identical amounts on this issue, despite the second Claimant’s symptoms starting a few days later, because I find that both suffered the same loss of enjoyment and the extent to which they suffered a diminution in value was also largely the same. Doing the best that I can on the facts that I have before me I assess damages for diminution in value at £300 each and I assess loss of enjoyment also at £300 each. That is my judgment.