Getting sick on holiday?

This case seems to give renewed hope to claimants in the context of food poisoning cases whilst causing initial devastation to the package travel industry. However, if one truly analyses the judgment of Burnet LJ, it suggests that there will be a higher demand on the claimant to establish causation based on the evidence at hand.

The Claimant (Mr and Mrs Woods) had booked an all-inclusive package holiday with the defendant (First Choice tour operator). During the duration of their holiday, the Claimants contracted food poisoning and they alleged negligence and breach of contract. They relied upon the Package Travel Regulations 1992 and the Supply of Goods and Services Act 1982 (SGSA 1982) against the Defendant. The primary issue centred on whether, in a claim based upon a gastric illness which is alleged to have been caused by consuming food provided at an all-inclusive ‘buffet’ service restaurant, is it enough for a Claimant to establish that the food was contaminated, or whether he or she must go further and show that the contamination resulted from the failure of the Defendant, its staff or suppliers to exercise reasonable care and skill (prove negligence).

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Breach of contract

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1)Â Â Â Transfer of property

 In order to decide this, the appellate court had to assess the nature of the contract between the Claimant and the Defendant. The Defendant appealed against the initial finding that the food and drink should have been of satisfactory quality in accordance to s.4 (2) of the SGSA 1982. They argued that the consumption of food and drink at the hotel by the Claimant, involved no transfer of property. If there was no transfer of property then s.4 (2) could not be relied upon. In analysing the Defendant’s submissions, Burnett LJ saw that “[t]he submissions advanced on behalf of First Choice (the Defendant) have an elegant simplicity.” The Defendant had tried to rely on the case of PST Energy 7 Shipping LLC & Anor v OW Bunka Malta Ltd & Anor [2016] (PST Energy). In that case, there was an agreement for the supply of fuel to a ship. This agreement consisted of two parts:

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1)Â Â Â Â Â To allow consumption of fuel prior to payment without the property passing in the fuel consumed.

2)Â Â Â Â Â To transfer the property in any remaining fuel when the price for the fuel had been paid.

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The Supreme Court in that instance rejected the argument that the property in the oil must have transferred a nanosecond before it was consumed. Instead it concluded that the title in the consumed oil had in fact never passed from one party to another.

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Burnett LJ felt that to accept this logic and apply it to food and drink consumption would be incomprehensible. In the case of PST Energy, there would have been no issue if it was not for the retention clause. No such express term existed here. Consequently, it was held that in absence of any express agreement to the contrary, when customers order a meal or drink, the property in the meal or drink passed to them when it was served. Additionally, “the fact that that the food and drink may be laid out in a buffet to which customers help themselves can make no difference.” Furthermore, the appellate court acknowledged that the Defendant was correct in conceding that a contract could be mixed (both being for the supply of goods and services). Therefore, there had been a transfer of property (goods) and s. 4 (2) of the SGSA 1982 could be relied upon by the Claimant.

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Satisfactory quality

Having identified that there had been a breach of an implied term in the contract by the Defendant to the Claimant the court had to address the notion of ‘satisfactory quality’. In defining this, Burnett LJ cited the long-standing case of Lockett v A&M Charles [1938]. The case involved Mrs Lockett contracting food poisoning after eating contaminated whitebait at a fish restaurant. In that case Hilbery J stated that “[i]t follows beyond all doubt there is an implied warranty that the food supplied will be reasonably fit for human consumption”. Hence, there is an objective standard that needs to be addressed when assessing the concept of ‘satisfactory quality’ for the purpose s.4 (2) SGSA 1982. In deciding this, the appellate court held that the Defendant was correct in conceding that ‘food contaminated with bacteria such as to cause illness could not be considered to be of satisfactory quality’. This is a well-established principle from the case of Antcliffe v Kemp and holds an objective standard explaining what a reasonable man would or would not regard as being of satisfactory quality. In that case it was decided that the food was not of ‘satisfactory quality’ because it was contaminated with various harmful bacteria that caused illnesses. In the present case, the appellate court was satisfied that there was a strong casual link between the contaminated food and the Claimant contracting an acute gastric illness. Therefore, the objective standard test for s.4 (2) SGSA 1982 was met.

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Was there negligence by the defendant?

The Claimant did not succeed on the claim of negligence as it was not found that the Defendant had failed to take reasonable care and skill. As a result of the above findings, the need to find negligence was not a main focus in this case.

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Implications

Initially, this case can be seen to be incurring more liability unto tour operators, as they have to ensure that certain components (food) of an all-inclusive package holiday have to be of satisfactory quality. However, Sir Brian Leveson acknowledged that “…there are many ways in which protection from exposure in this area can be achieved.” In addition, Brunett LJ highlights that this decision does not mean that every tour operator will be liable for an upset stomach. The burden is on the customer to prove that the food or drink caused contamination and it was not of ‘satisfactory quality’. Hence, if the Claimant had not had credible medical documents and medical experts present at the trial there may have been a different outcome.

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