Peter Griffiths v TUI (UK) Ltd

Hearing date: 27 th July 2021

Approved Judgment

This appeal raises the question of whether and if so, in what circumstances, the court can evaluate and reject what is described as an “uncontroverted” expert's report. The question arises in the context of a claim in respect of gastric illness allegedly suffered as a result of consuming contaminated food or drink whilst staying at a hotel in Turkey on an all-inclusive package holiday provided by the Appellants, TUI (UK) Limited (“TUI”). The Respondent, Mr Peter Griffiths, suffered a serious gastric illness whilst on holiday in 2014, the symptoms of which persisted after his return home. He made a claim in contract and pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992.

By an order dated 5 September 2019, Her Honour Judge Truman dismissed Mr Griffiths' claim and ordered him to pay TUI's costs. She did so on the basis that she was not satisfied that the medical evidence showed that on the balance of probabilities Mr Griffiths' illness was caused by contaminated food or drink supplied by the hotel. Martin Spencer J (the “Judge”) allowed Mr Griffiths' appeal and set aside Judge Truman's order. His judgment is to be found at [2020] EWHC 2268 (QB). This is a second appeal, therefore.

Factual background

Mr Griffiths purchased the all-inclusive holiday from TUI for himself and his family for the period 2 August 2014 – 16 August 2014. At Birmingham Airport, he ate a burger purchased from a well-known burger chain. All other meals which he consumed were prepared and provided by the hotel in Turkey save for one which was eaten at a nearby town on 7 August 2014.

Mr Griffiths fell ill on the evening of 4 August 2014 suffering from stomach cramps and diarrhoea and spent the next two days in his room, by which time his symptoms had begun to lessen. On 7 August 2014, he went to a pharmacy in the local town to buy medication. Whilst he was there, he and his family went to a local restaurant. He said that he ordered a meal but could not eat much because he did not have much appetite.

On 10 August 2014, Mr Griffiths' symptoms worsened. On 13 August 2014, he spoke to a doctor who advised him that he required hospital treatment. He was admitted to Kusadasi Hospital for three days and two nights where he was treated with intravenous fluids and antibiotics. The diagnosis was acute gastroenteritis. A stool sample was taken and analysed which showed multiple pathogens, both parasitic and viral.

The Claim

Proceedings were issued and Particulars of Claim served on 19 July 2017. The claim was allocated to the multi-track. The matters relied on as to the cause of the illness included the food served at the hotel, dirty cutlery and crockery, the fact that the swimming pool appeared dirty and was inadequately cleaned, the fact that the public toilets near the swimming pool smelt offensive and that on at least one occasion, faecal contamination from a baby's nappy was in evidence within the swimming pool. The pre-issue medical report obtained from Dr Linzi Thomas, a consultant gastroenterologist, and dated 14 July 2015, stated that on the balance of probabilities it was the poor hygiene standards within the hotel and a breakdown in general and food hygiene processes such that the food, drink or fluids consumed at the hotel were the cause of the illness.

In the Defence, TUI denied that Mr Griffiths' illness had been caused by his consumption of food or drink at the hotel and put Mr Griffiths to proof as to when, where and under what circumstances he had fallen ill and as to the means by which any such illness was transmitted to him.

Thereafter, amongst other things: TUI was granted permission to obtain a report from a gastroenterologist and to serve a report from a Dr Gant, a consultant microbiologist, dealing with causation by 4pm on 15 August 2018; and Mr Griffiths was granted permission to rely upon the expert evidence served with the Particulars of Claim (the report from Dr Linzi Thomas), to obtain an updated report from Dr Thomas and to obtain and serve a report from a consultant microbiologist, a Professor Pennington, addressing causation.

TUI failed to serve a report from a gastroenterologist within the time specified, nor did it serve a report from its nominated microbiologist, Dr Gant. TUI having confirmed that it did not intend to rely upon expert evidence from a microbiologist, Professor Pennington's report was served, on behalf of Mr Griffiths. On 29 October 2018, TUI's application for permission to rely on a report from a gastroenterologist, and for relief from sanctions, was dismissed and as a result it was left without any expert evidence for the purposes of the trial.

At the trial before Judge Truman, the judge heard oral evidence from Mr Griffiths and his wife. Statements from Dr Ibrahim Kocaoglu, a medical doctor at the hotel in Turkey where Mr Griffiths and his family had stayed, and from Ms Kathy Nys, the Head of Guest Relations and Executive Assistant to the General Manager at the hotel, were also admitted in evidence.

Judge Truman accepted Mr Griffiths' evidence and that of his wife in full. As a result, she found that: Mr Griffiths had been ill as he had described; that he had eaten and drunk what he had described; and that he had fallen ill on the dates he had specified and had been hospitalised. The reports of Dr Thomas were relied upon solely for the purposes of proving Mr Griffiths' condition and prognosis. Professor Pennington's report was relied upon, together with his answers to questions put to him by TUI pursuant to CPR Part 35, in relation to causation. Professor Pennington was not required to be called or cross-examined, however. Accordingly, the only expert evidence in relation to causation which was before Judge Truman was Professor Pennington's report and his answers pursuant to CPR Part 35.

Professor Pennington's report

Professor Pennington's report, which is dated 23 July 2018, is short. The Judge described it as “minimalist” [11]. As one might expect, Professor Pennington set out his professional credentials, referred to the documents which he had used in preparing the report which included the Particulars of Claim, and set out his instructions, which included: “to confirm as to whether on the balance of probabilities the illnesses in question were caused as a result of staying at the hotel in question and a breakdown in the health and hygiene practices at the hotel”. He also asserted that he had understood his duty as an expert witness and had complied with it and provided a statement of truth.

The body of the report comprises four numbered paragraphs of which three were substantive. As the nature of the content of the report is central to this appeal and whether, in the circumstances, it can be impugned as insufficient to prove causation, it is helpful to set out the substantive paragraphs in full:

“2. Peter Griffiths [Mr Griffiths] stayed at the … Hotel, Turkey, on an all-inclusive basis from 2 August – 16 August 2014. He fell ill on the night of 4 August with diarrhoea. His symptoms were severe for 48 hours. They eased but returned after seven days. He was admitted to hospital on 13 August. His blood pressure was high and he was dehydrated. He was discharged on 15 August. His stools were tested in the Turkish hospital, Ada Private Hospital. According to the discharge report of 16 August 2014 by Dr Yusuf Tuna, entamoeba histolytica cysts and Giardia intestinalis was said to be seen on microscopy, and rotavirus, adenovirus, E. histolytica and Giardia antigen tests were positive. However, the Witness statement of Ibrahim Kocaoglu, the hotel doctor, the stool tests showed Entamoeba histolytica and Giardia intestinalis cysts, but the Rota, Adeno and Noro virus tests were negative. His statement says that Peter Griffiths was seen on 13 August 2014 with a history of 6 days sickness, abdominal cramps, and diarrhoea, which complaints started after dinner in Kusadasi town center on 6 August 2014. Self medication partially relieved the symptoms, but diarrhoea stated again on 11 August 2014.

3. I do not think that Peter Griffiths had amoebic dysentery caused by Entamoeba histolytica. Entamoeba cysts (which were found in his stools) are not diagnostic on their own because they cannot be distinguished routinely from the far commoner cysts of the harmless Entamoeba dispar. The onset of amoebic dysentery is usually gradual or intermittent; acute colitis is uncommon. Vomiting is not a feature and the diarrhoea is almost always bloody. Cases of amoebic dysentery most commonly have an incubation period of two to four weeks. None of these features lend support to a diagnosis of amoebic dysentery contracted in Turkey in Peter Griffiths' case. I consider it to be statistically improbable that he had been infected simultaneously with Giardia, adenovirus and rotavirus. I note that a microscopic diagnosis of Giardia is not straightforward. However it is...