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Is Holiday Sickness the New 'Cash-Cow' for Claimants?

30-August-2016
30-August-2016 12:00
in Aviation and Travel
by Lawrence Power

Those working in the travel industry have expressed concerns that theirs may be the next sector to feel the effects of the “compensation culture”. In an article for travelweekly.co.uk, Andy Cooper, of Owens Cooper Consulting has stated that lawyers may be looking to use personal injury claims under the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the 1992 Regulations”) as a “new source of income”. In particular, Mr. Cooper criticises the practice of targeting of holidaymakers, through adverts in airports and misleading statements promising compensation for anyone who has fallen ill on a package holiday. The 1992 Regulations implement the EU Package Travel Directive 90/314/EEC and are focused on consumer protection, so naturally claims under them are going to be attractive to solicitors acting for claimants. However, it is important to note that claimants do still have to establish fault on the part of the supplier at their holiday destination, as well as causation.

Claims for personal injury on a package holiday are made pursuant to Regulation 15 of the 1992 Regulations. The case of Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 established that in order to claim under Regulation 15, a claimant would need to show that a supplier was at fault and failed to exercise reasonable skill and care. It is easy to see why claims for food poisoning, where the claimants allege that they only dined within the hotel, might be common; the fact that food has caused an illness might necessarily lead to the inference that reasonable care and skill was not employed in its preparation or serving. This was the argument advanced in Kempson & Kempson v First Choice Holidays & Flights Ltd (16, 17, 20 April and 7 June 2007, Birmingham County Court (unreported)). In that case, the judge allowed the claim for damages following salmonella poisoning on the basis of expert evidence that the presence of bacteria in the claimants’ food could only have been due to undercooking. The claimants also advanced an argument that s. 4 of the Supply of Goods and Services Act 1982 imposed a strict contractual obligation on a supplier to provide food that was safe to eat. The judge agreed with this approach but, his comments having been effectively obiter, a different approach may be taken on another occasion.

It is suggested that Kempson & Kempson does not necessarily open the floodgates for a raft of food poisoning claims against package holiday providers. It is just as possible to argue that Lord Justice Longmore’s observation in Hone that “in the absence of express wording, there would not be an absolute obligation, for example, to ensure that the holiday-maker catches no infection while swimming in the swimming pool” could just as well apply to cases of food poisoning. As Mr. Cooper points out, there are often a multitude of reasons for which a person may contract food poisoning (such as dehydration or simply a change in the drinking water) which will not necessarily be the fault of the hotel or the supplier.

As to the frequency of such claims, it is regrettable but somewhat inevitable that we should find ourselves in this position. Ever since the Jackson Reforms introduced a fixed-costs regime for fast track trials and legal aid was withdrawn from personal injury claims, solicitors have sought out niche sources of revenue where they can. Given that the 1992 Regulations are now enshrined in domestic law, it is also unlikely that Brexit will have any effect in stemming the flow of such claims. However, if the courts are open to exploring the reasons that cause food poisoning, and move away from the obiter approach in Kempson & Kempson, it is arguable that this area of law may not provide the windfall that prospective claimants and their solicitors may hope for.

 

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