Court of Appeal clarifies liability position for tour operators in food poisoning claims

18 Jan 2017

On 16 January 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 courts 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.

The facts

The claimants “the Woods”  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.

First instance decision

At first instance, the judge held that the hotel at which the Woods were staying on their package holiday had a sufficient standard of hygiene systems and procedures, and that it had provided the accommodation services with 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”, s.4 Supply Goods and Services Act 1982 applied. This meant that the presence of a pathogen in the food rendered it of ‘unsatisfactory quality’ and therefore, the hotel was liable for the illness, notwithstanding the quality of its hygiene procedures. It was expressly stated 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.

Court of Appeal decision

TUI Travel appealed the decision that the food supplied was of unsatisfactory quality on the grounds of whether the property in the food was transferred to the guests when it was offered in a buffet. It was argued that provision of the food was a ‘service’ because when the food was eaten it was destroyed, and so property in it could never pass to the guest.

The defendant argued that what TUI Travel was offering under the package contract was a right or a licence to use the buffet.  The defendant relied on the judgment in Hone v Going Places Leisure Travel Ltd [2001] EWCA 947 for their argument.

On appeal it was held that “In the absence of any express agreement to the contrary, when customers order a meal, property in the meal passes 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.”

The Court of Appeal attempted to reassure tour operators that the imposition of strict liability wouldn’t 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. The judge continued:

It is well known that some people react adversely to new food or different water and develop upset stomachs. Neither would be unsatisfactory for the purposes of the 1982 Act. That is an accepted hazard of travel…it is never enough to invite a court to draw an inference from the fact that someone was sick and the task might provide difficult in the absence of evidence of others who had consumed the food being similarly afflicted…it will always be difficult (indeed very difficult) to prove that an illness is a consequence of food or drink which was not of satisfactory quality, unless there is cogent evidence that others have been similarly affected.”

What this means for you

Tour operators will be strictly liable if guests become ill from consuming contaminated food at their hotel. The appeal decision has not changed the law, but has clarified a contentious issue. It also highlights the importance of challenging causation; which has long been the most significant battleground in illness claims. HACCP evidence will continue to be important, as a means of persuading a court that food supplied by the hotel is less likely to be the cause of an illness than other factors (such as the new food or different water referred to by Burnett LJ); or food consumed off the premises etc).

Importantly, the comments of the judges suggest that perhaps, a greater import will be placed on the presence/absence of other incidents in assessing causation. The indication is that where there are no other reported incidents, claimants may struggle to prove that their illness was caused by consumption of contaminated food/drink.  It will therefore be more important than ever for hotels to capture and retain good evidence of all reported illnesses.

Lastly, the decision seems to obviate the need for local standards evidence to be adduced in gastric illness claims.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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