Holiday Claims Update - Wood v TUI Travel [2017] EWCA Civ 11

Food poisoning is an illness caused by eating contaminated food. It can occur where food is contaminated by bacteria like salmonella, E.coli or a virus, such as norovirus. Problems can arise if food is not cooked and stored properly, and the food is then reheated and cooked with unwashed hands, or by someone who is already ill.

Symptoms include nausea, vomiting, diarrhoea, abdominal pain and lack of energy. In England and Wales food poisoning results in an estimated 70,000 reported cases a year. Reported deaths per annum vary in the media between 350 and 500 a year.

On 16 January 2017, the Court of Appeal gave judgment in the case of Wood v TUI Travel. The claimants had purchased an all-inclusive holiday from the defendant and allegedly contracted food poisoning from the hotel buffet. They alleged negligence and breach of contract under the Package Travel, Package Holiday and Package Tour Regulations 1992, as well as the Supply of Goods and Services Act 1992.

At first instance, in relation to the issue of negligence, the court found the hotel where the claimants were staying had a sufficient standard of hygiene and provided accommodation with reasonable skill and care. The claimants’ case succeeded however, in the claim for breach of contract, as the court held the hotel’s provision of food amounted to provision of goods under section 4 of the Supply of Goods and Services Act 1982. Section 4 provides:

“4(2):   Where under such a contract, the transferor transfers the property in goods in the course of a business, there is an implied condition that the goods supplied under the contract are of satisfactory quality …”

TUI appealed the decision at first instance, arguing no property was transferred by TUI to the claimants and specifically, that the claimants never acquired property in the food and drink they consumed. TUI appealed on the basis that the claim should fail under the Supply of Goods and Services Act 1982. Key submissions made by TUI at the appeal included:

• There was no contract by which TUI agreed to transfer food and drink
• TUI provided a licence to all its all-inclusive customers to consume food and drink with no question of their ever becoming the owners of what was on their plates, or in their glasses
• The provision of the food was a service - but only one component of a contract by which TUI agreed to supply a variety of services

The Court of Appeal agreed with the court at first instance and held in the absence of an express agreement to the contrary, when consumers order a meal, property in the meal transfers to the customer when it is served. The contamination of food rendered it of unsatisfactory quality and as a result the hotel was liable for the claimants’ illness.

“It made no difference if the food and drink were laid out in a buffet to which customers helped themselves … the contract between the holiday company and the respondents was a contract both for the supply of services and the supply of goods. The goods supplied were not of satisfactory quality because the food in question was contaminated.”

In summary, the tour operators will be found strictly liable if clients become ill consuming contaminated food in one of their hotels. This decision, perhaps unsurprisingly, clarifies the existing law in this area, which is gaining notoriety and profile. 

Increase in holiday claims?

The Claims Management Regulator (CMR) is investigating the relationship between Claims Management Companies (CMCs) and solicitors - after the Association of British Travel Agents (ABTA) has alleged CMCs are targeting holiday sickness claims, resulting in a flood of cases. Reports from ABTA suggest a surge in claims from British holidaymakers - which is not mirrored by French or German tourists.

These increases have allegedly occurred at the same time as the Legal Aid, Sentencing and Punishment of Offenders Act 2013 reforms, which limit costs in a number of areas, including road traffic claims. In the last quarter the CMR has issued 16 warnings to personal injury claims management companies and undertaken 285 visits to previously authorised businesses, to ensure they are not carrying out unauthorised activities.

If you have any questions regarding this blog and how it might impact you or your clients then please do not hesitate to contact Steve Gowland or Robert Smith. Our dedicated team has a wide body of experience in dealing with claims arising out of the food, hospitality and hotel service sectors and will be happy to help and answer your questions.

Steve Gowland
Associate
T: 01204 672325
E: sgowland@keoghs.co.uk

Robert Smith
Partner
T: 01204 678768
E: rsmith@keoghs.co.uk