Food poisoning claims made easier for claimants

Posted: 19/09/2012

The recent county court case of Antcliffe v Thomas Cook Tour Operations Ltd imposes strict liability on tour operators if a consumer suffers food poisoning during the course of a package holiday.

All five members of the Antcliffe family became ill with symptoms of gastroenteritis during their all-inclusive holiday to the Dominican Republic which was organised by the defendant, as the tour operator.

The claim was pleaded on the basis of ‘improper performance’ arising from the Package Travel Regulations (PTR) and a breach of section 4 of The Supply of Goods and Services Act, which obliges a defendant to ensure that the food is of a satisfactory quality.

The claimants argued that section 4 should impose a duty of strict liability on the tour operator, rather than merely a duty of reasonable care.

There was some dispute as to the actual causes of the infection, with the defendant's microbiologist concluding that there were no fewer than six possible causes of the illness, given that the family had enjoyed two excursions outside of the hotel. The judge disagreed and concluded that the illnesses were caused as a consequence of infected food supplied by the hotel, on the balance of probabilities.

Despite this, the trial judge refused to make a finding of negligence with reference to the PTR. He did not consider there was sufficient evidence to prove a breach of local standards or improper performance of the package holiday contract, even though the food was infected.

The claimants instead succeeded on the basis of section 4 of The Supply of Goods and Services Act, stating that the contract was subject to an implied condition that the food would be of satisfactory quality. As a consequence, it did not matter that there was apparently no breach of local standards. The food was contaminated and consequently it could not be said that it was of satisfactory quality.

Although this is a useful case for claimants, tour operators will still try to argue the causation point (ie that the illness was caused by the consumption of food provided by a third party), whenever possible. It will therefore be important for both parties to collate supporting witness evidence regarding what was eaten, when and where. It is also essential to obtain credible evidence from a microbiologist if this issue is raised.

Finally, it needs to be borne in mind that this was a county court decision, and consequently, it is not a binding precedent. Nevertheless, claimants' solicitors will inevitably refer to it to assist the negotiation process.

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