Liability of travel companies for gastric illness caused by alleged food poisoning.
The Court of Appeal considered whether, in a claim for gastric illness caused by alleged food poisoning due to consuming food at a ‘buffet’ as part of an ordinary “all inclusive” package holiday, was it sufficient for a Claimant to establish that the food was contaminated by an illness-inducing pathogen, or whether the Claimant must show that the contamination was caused by the failure of the Defendant, its servants or suppliers (i.e. the foreign hotelier) to exercise reasonable skill and care.
The issue, in short, depended upon whether or not the provision of food and drink as part of a package holiday can properly be characterized as a contract for the transfer of goods within the meaning of section 4 of the Supply of Goods and Services Act 1982.
The Defendant argued that in the case of food and drink served as part of an all inclusive package – the contract is for the provision of services alone.
In the Court of Appeal it was common ground that food which is contaminated with bacteria cannot sensibly be described as being of satisfactory quality, but just because someone may have an “upset tummy” does not automatically mean the food was contaminated.
Burnett LJ, sitting in the Court of Appeal readily accepted that there was no inherent inconsistency between the judge’s finding at first instance that although hygiene at the hotel was good, the food was contaminated stating that “there is little doubt that food might be contaminated without fault on the part of a restaurant or hotel”.
So the central issue for the parties became simply whether or not the property in food at a restaurant was ever ‘transferred’ to the consumer at all.
Burnett LJ concluded 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 unusual accommodation”.
Burnett LJ held that, in effect, the need to prove causation and in particular that the illness was actually caused by contamination of food rather than something else, provided a significant hurdle for Claimant’s in the majority of cases and acted as sufficient protection to the tour operator.
A strong reminder from the Court of Appeal that it is the Claimant who bears the burden of proof, even if the contractual term is a strict one, and cases will continue to be determined on the question of medical causation.
It must be remembered that some people react adversely to new food or different water and develop upset stomachs (otherwise known as “delhi belly”), which is an accepted hazard of travel and it will always be very difficult for a Claimant to prove that an illness is a consequence of food or drink which was not of a “satisfactory quality”, unless there is cogent evidence that others have been similarly affected.
A common sense decision then which reaffirms the generally held view that in such claims, there may be greater strength in numbers
That said, do not forget that pathogens can have a different effect on persons of different ages and constitutions and the fact that certain pathogens, such as salmonella can cause illness to just a few in isolated numbers.