When is evidence uncontroverted?
A recent Court of Appeal judgment on holiday sickness claims is likely to deter claimant lawyers from bringing future cases, argues Alec Hancock
When Wood v TUI was first handed down by the Court of Appeal in 2017, there was a problem. It was easiest to characterise with reference to the episode of Friends which saw Monica and Rachel trying to win back their apartment from Chandler and Joey. They decide to split a deck of cards, the couple with the highest card would win. The girls start and get a four, the boys then reveal they have an ace. Both couples are celebrating but are confused as to why the other couple are also jubilant.
Chandler: “Why are you screaming and hugging?”
Monica: “Because we won our apartment back!”
Joey: “What? Ace is high! Jack, Queen, King, ACE!”
Monica: “No! Ace is low! ACE, two, three, four!”
They all look to Phoebe to adjudicate but she had no idea who won. That’s how many holiday sickness practitioners felt back in 2017.
Claimant practitioners celebrated that they did not have to prove negligence, only that the food was contaminated and the consumption of it caused the illness. Defendant practitioners celebrated the strongly-worded obiter of the judges’ opinion that supported the assertion that it would be very difficult for a claimant to prove food contamination in the absence of cogent evidence.
“The defendant’s advocate would make submissions that poked at any holes in the expert’s report they could find.” It would be naive for claimant practitioners to say that Wood v TUI did not cause problems for claimants in holiday sickness claims. Defendants would submit that there was a lack of evidence of others being ill to support food poisoning but then argue that evidence of other holiday makers being ill was more in keeping with a viral outbreak.
It was also frustrating when a defendant relied on the obiter in cases where a predominately food-borne pathogen such as salmonella was identified. After all, evidence of salmonella could be one of the most cogent pieces of evidence in support of food contamination any holiday sickness claimant could adduce.
It became problematic too when defendants took to undermining expert reports. The defendant’s advocate would make submissions that poked at any holes in the expert’s report they could find, including arguing that the expert was not qualified to comment on causation, despite the pre-action protocol expressly limiting claimants to medical experts in the first instance.
Accepting expert evidence
Claimants finally caught a fresh breath of air when Martin Spencer J handed down his judgment in Griffiths v TUI. The decision prevented defendants from attacking expert reports at all in submissions, unless they specifically controverted the report’s findings. The court was essentially bound to accept an uncontroverted report.
In his obiter, the judge approved the distinction between cases which relied on cogent evidence to prove food contamination, such as those set out in the obiter of Wood v TUI, and cases where the claimant relied on positive stool samples and expert evidence to prove food contamination.
The role of evidence such as hygiene records and absence of others being ill would be less significant and hopefully lead to cases where a pathogen had been identified being settled without the need to go to trial. Although many still did, claimants saw a higher success rate than before.
Decision reversal
TUI sought permission to appeal and last October the Court of Appeal, with a split majority, allowed the appeal and took us back to the pre-Griffiths position.
There has been a range of discussion on legal social media both for and against this decision. The debate notes the dissenting comments of Lord Justice Bean, who, despite some agreement with others on some points, disagreed with the majority and would have dismissed the appeal. Although the Court of Appeal refused him permission, it is said that Mr Griffiths will now be seeking permission from the Supreme Court to appeal.
So where does that leave claimants? Many claimant practitioners are no doubt exhausted by holiday sickness litigation in general and this decision will deter many from bringing cases. This trend will certainly not be assisted by the further proposed extension of fixed recoverable costs, which suggests that holiday sickness litigation should attract the same fixed costs as road traffic accident claims.
The appeal did not consider the distinction between how food contamination can be proved, which is not surprising as it would not have got TUI where they wanted to be in overturning Martin Spencer J’s decision.
Although it may still be a persuasive point for claimants with confirmed pathogens, the qualitative approach still requires an expert to state their opinion that the pathogen came from the hotel food. Given that defendants can now, once again, challenge such evidence without controverting the expert’s opinion, counsel should expect holiday sickness trial dates to remain in their diaries with no settlements in sight.
CILEX Lawyer Alec Hancock is a consultant specialising in personal injury and holiday sickness claims