While incidences of food poisoning and claims arising from them are not uncommon (the Food Standards Agency estimates that in excess of 1 million people a year experience foodborne illness, with 20,000 people hospitalised and around 500 people a year die from exposure to foodborne illnesses) it is fairly uncommon to see a claim for food poisoning run all the way to trial and to get reported. Food poisoning claims are either discontinued due to a lack of evidence to prosecute them or else are settled fairly early in pre-litigation, because there is clear cut evidence of breach of duty and neither party wishes to incur litigation and/or trial costs.

However, in Lavery v TUI UK Limited (2018), a first instance decision at the Bradford County Court, the two claimants (a married couple) successfully claimed for food poisoning due to poor food hygiene standards at the hotel at which they stayed in Sharm EL Sheikh in Egypt, as a package holiday.

There were two unusual factors in this case: firstly the defendant sought to allege that despite the fact this was a package holiday the relevant jurisdiction was Egyptian law. This was roundly rejected by the court which ruled that the Package Travel, Package Holidays and Package Tours Regulations (1992) applied.

Further, the defendants sought to refute the claim on the ‘strict proof’ basis. The burden was on the claimants to show that there had been a breach of duty and the claimants had no direct or conclusive evidence of their exposure to food borne bacteria and purely sought to establish their claim on the basis of an inference, namely that they ate at the hotel and following this suffered symptoms of food poisoning.

At trial, the adopted defence was not sufficient to protect the defendants from a finding of liability. In fact, Deputy District Judge Mahmood was content to rely on the oral evidence of the claimants regarding the standard of hygiene of the food and the quality of the food that was provided, and was satisfied on that evidence alone that the defendants had breached their duty.

Whilst the damages were not particularly high, the 1st claimant's general damages were awarded in the sum of £2,000 and the 2nd claimant's damages were awarded in the sum of £3,000, this is a good example of the risks of not treating a food poisoning claim seriously. Given the number of incidences of food poisoning in the UK and that package holidays abroad represent 53 per cent of all holidays sold in the UK in 2016, the fact that these claimants were able to succeed in their claim, with no expert evidence should be a cause for some caution for those acting on behalf of the defendants to food poisoning and package holiday claims.

This case follows on from the Court of Appeal decision of Wood v TUI (which we reported on here) in January last year in which it was held that tour operators will be strictly liable if guests become ill from consuming contaminated food at their hotel.

What this means for you

To avoid facing growing numbers of unsubstantiated claims, each and every one should be thoroughly investigated wherever possible and challenged, to resist what might become a flood of claims by those seeking an easy way to make money in litigation.