It’s good news for insurers and the travel industry that slowly but surely sickness claims are reaching the courts and those without merit are being dismissed.
One recent fast track matter handled by Plexus Law on behalf of a tour operator was dismissed at trial following scrutiny over the medical expert’s written report.
The Claimant alleged food poisoning following a 14 night all-inclusive holiday to Tunisia in October 2013. This claim was not typical of the questionable sickness claims presented to the industry over the last 12-18 months. In this matter, the Claimant had clearly suffered with a gastric illness. Whilst no official report of the sickness was made in resort, the Claimant changed hotels on approximately the 4th day of the holiday. Rightly or wrongly, clearly the Claimant was dissatisfied with the original accommodation.
Within days of the Claimant’s return to the UK a detailed email of complaint was sent to the tour operator. The Claimant also posted a very unfavourable review on Trip Advisor the same day. The Claimant alleged food poisoning and described gastric symptoms which justified 2 days in bed at the start of the holiday. The Claimant cited the first lunch of fish and rice taken at the first hotel as the cause. Symptoms began approximately 5 hours after eating the lunch on the first day of the holiday.
The Claimant’s initial email went on to explain how, following the change of accommodation, confidence in Tunisian hotel hygiene standards resulted in taxis being taken to the local town in order to avoid getting food poisoning for a second time. This inferred that the short bout of sickness had resolved.
At the time of the holiday, the Claimant was on various medications for, amongst other things, asthma, a rheumatological condition and weight loss. The side effects of the medications could cause gastric symptoms. The medications and pre-existing issues meant the Claimant was a fairly regular visitor to the GP. The Claimant had visited the GP 3 weeks before the holiday with diarrhoea. The Claimant visited the GP 5 days after returning from Tunisia. She had a flu jab and there was no mention of the sickness recently suffered on holiday.
Proceedings were issued against the tour operator in October 2016. In the pleadings the sickness had increased to a fairly lengthy 6 weeks. The Claimant’s holiday was ruined as a result of ‘barely leaving the bed for the rest of the holiday’ (the witness statement of the Claimant’s travelling companion).
The Claimant’s medical expert opined that the sickness was an infective gastroenteritis acquired by ingesting food and drink at the first hotel. Part 35 questions were put to the expert and asked the expert to consider the possibility that the sickness was idiopathic traveller’s diarrhoea. The expert maintained his opinion and elaborated that the cause was most probably a strain of E-Coli. The medical expert did not consider the incubation periods required for the various possible pathogens; E-Coli in particular has a typical incubation period of 3-4 days. The expert did not consider the breakfast consumed at home or the inflight meal earlier that same day. The expert’s report was therefore unable to persuade the judge that the first meal eaten at the first hotel was the most probable cause of the symptoms which began just 5 hours later. Put simply, the Claimant was sick too quick. The judge accepted that the Claimant was reasonable in believing that this meal was the cause and further accepted that the apparent exaggeration as to the length of the sickness and effect on the holiday was simply a cloudy memory due to the passage of time.
The abundance of hygiene documentation, lack of sickness outbreak at the hotel and willingness of the head chef to give evidence by way of video link from Tunisia is likely to have assisted the judge in reaching this conclusion.
The claim was dismissed at the trial on 21 September 2017 and costs were awarded to the Defendant. As qualified one-way costs shifting applies, the Defendant is however unable to enforce the costs order.
For further information on this case please contact:
Claire Scargill, Solicitor
T: 0344 245 5330 | E: firstname.lastname@example.org