Author: Janet Lee
No doubt many people will have taken advantage of the cluster of recent Bank Holidays to grab a break in the sun and, whereas most “get-aways” will prove uneventful, there is always some unfortunate traveller that suffers from the dreaded “holiday tummy”.
It is fair to say that travelling abroad does not suit everybody in so far as some people seem to be susceptible to the inevitable dietary changes. However, a stomach or sickness bug is not always due to consuming new food or different water. Sometimes, it can be due to food poisoning and, if you have recently had the misfortune to fall victim to this whilst on holiday, you may now be, as a result of a recent Court of Appeal decision, in a much better position to take legal action.
On 16 January 2017, the Court of Appeal handed down its Judgment in the case of Wood v TUI Travel. The claim arose from a gastric illness suffered whilst the Claimant was on a package holiday. The appeal focused on whether the court would characterise the provision of food and drink as a contract for the transfer of goods within the meaning of section 4 of the Supply of Goods and Services Act 1982.
In this case, the Claimant’s had purchased an all-inclusive package holiday from the Defendant, TUI Travel. Whilst on holiday, the Claimants contracted food poisoning and alleged that it was caused by the buffet at which they had dined, when staying at the hotel. They alleged negligence and breach of contract, relying on the Package Travel Regulations 1992 and the Supply of Goods and Services Act 1982 against the Defendant.
At first instance, the Judge held that the hotel at which the Claimants were staying had a sufficient standard of hygiene systems and procedures in place and the hotel had provided the accommodation services with a reasonable care and skill. However, the Claimants succeeded in their claim for breach of contract at trial because provision of food amounted to “provision of goods” under section 4 of the Supply of Goods and Services Act 1982. This meant that the presence of disease causing bacteria in the food rendered it of “unsatisfactory quality” and, therefore, the hotel was liable for the illness despite the fact that the quality of its hygiene procedures appeared to be acceptable. It was pointed out that food could be contaminated without any fault on the part of the hotel but that liability would attach without any fault, as long as the Claimant could prove that the food was contaminated.
However, the Court of Appeal did attempt to reassure tour operators that the imposition of strict liability would not create a position where all illnesses were actionable. It suggested that the need for the Claimant to prove causation would provide sufficient protection to tour operators.
This case is a very important decision in the field of travel law, as the Court of Appeal has confirmed a point which has, until now, often been disputed by Defendants, namely that it is not necessary for a Claimant to establish fault on the part of the hotel or to rely on the Package Travel Regulations in order to succeed in a food poisoning claim against a tour operator. Provided the Claimant can show that he became ill as a result of eating contaminated food provided as part of the holiday contract, he should succeed in a claim for damages against the tour operator and it is no defence for the tour operator to adduce evidence that this happened despite the hotel having taken all reasonable care to avoid any outbreak of food poisoning at the hotel.
If you have had the misfortune to suffer from food poisoning whilst on holiday, you may be able to make a claim for compensation. We are experienced Personal Injury Specialists and can give you the expert advice you need.