TUI UK Ltd v Griffiths
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lord Lloyd-Jones,Lord Briggs,Lord Burrows,Lord Stephens |
| Judgment Date | 29 November 2023 |
| Neutral Citation | [2023] UKSC 48 |
| Court | Supreme Court |
[2023] UKSC 48
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Briggs
Lord Burrows
Lord Stephens
Appellant
Robert Weir KC
Stephen Cottrell
Thomas Westwell
(Instructed by Irwin Mitchell LLP (Birmingham))
Respondent
Howard Stevens KC
Sebastian Clegg
Dan Saxby
(Instructed by Kennedys Law LLP (London))
Heard on 21 and 22 June 2023
Lord Hodge ( with whom Lord Lloyd-Jones, Lord Briggs, Lord Burrows and Lord Stephens agree):
Mr and Mrs Griffiths and their youngest son went on a package holiday to a resort in Turkey. While staying at a hotel, which offered an inclusive package of meals and facilities, Mr Griffiths suffered a serious stomach upset which has left him with long term problems. He sued the travel company. At trial Mr and Mrs Griffiths gave uncontested evidence as to fact. Mr Griffiths also led the evidence of an expert who opined that, on the balance of probabilities, the food or drink served at the hotel was the cause of Mr Griffiths' stomach upset. The travel company defendant did not require the expert to attend for cross-examination and did not lead any evidence of its own. In his closing submissions, the travel company's counsel argued, and persuaded the judge, that deficiencies in the expert's report meant that the claimant had failed to prove his case on the balance of probabilities.
The appeal raises a question of the fairness of the trial. The question is whether the trial judge was entitled to find that the claimant had not proved his case when the claimant's expert had given uncontroverted evidence as to the cause of the illness, which was not illogical, incoherent or inconsistent, based on any misunderstanding of the facts, or based on unrealistic assumptions, but was criticised as being incomplete in its explanations and for its failure expressly to discount on the balance of probabilities other possible causes of Mr Griffiths' illness.
Mr Griffiths entered into a package holiday contract with TUI UK Ltd (“TUI”), which is a well-known tour operator, for himself, his wife and their youngest son. The holiday package included return flights from the United Kingdom to Turkey and 15-nights' all-inclusive accommodation at the Aqua Fantasy Aquapark Hotel in Turkey between 2 and 16 August 2014. Mr Griffiths fell ill on the evening of 4 August 2014 suffering from stomach cramps and diarrhoea. He spent two days in his bedroom before his symptoms began to lessen but they did not settle completely. On 7 August 2014, on the advice of a tour representative, Mr Griffiths, his wife and his son took a hotel shuttle bus to the local town to obtain medication from a pharmacy. While in the town, the Griffiths family went to a local restaurant. Mr Griffiths ordered a meal but could not eat much as he did not have much of an appetite.
After 8 August Mr Griffiths felt that he was beginning to recover. But on 10 August 2014 Mr Griffiths began to feel unwell again. He suffered from diarrhoea and needed to visit the bathroom approximately every hour. He spoke to a doctor, who advised him that he needed hospital treatment. He was admitted to Kusadasi hospital on 13 August where he remained for three days and two nights. He was diagnosed as suffering from acute gastroenteritis and was given intravenous fluids and antibiotics. A stool sample was taken, which on analysis showed multiple pathogens, both parasitic and viral. He continued to feel unwell but was able to travel home with his wife and son on 16 August 2014.
Before Mr Griffiths went on holiday he had eaten food, including a Burger King meal at Birmingham airport. Between 2 and 4 August Mr Griffiths ate only at the hotel. The only food which he ate in Turkey outside the hotel was when he and his family ate at the local restaurant mentioned in paragraph 3 above.
At the time of his trial in June 2019 Mr Griffiths was still suffering from stomach churning and bubbling, cramping pains in his stomach, increased stomach bloating and an increased frequency in bowel movements with urgency and episodes of diarrhoea. Those symptoms are likely to be permanent and affect his ability to undertake social outings. He has concerns about long car journeys. As explained more fully below, the trial judge, HHJ Truman, dismissed his claim. The trial judge expressed the view that the appropriate level of compensation would have been £29,000 for pain, suffering and loss of amenity (including the spoiling of the holiday), plus damages for care and medication costs.
In August 2017 Mr Griffiths commenced his action in the County Court. He pursued his claim on two bases: first, he claimed damages as a consumer against TUI under the Package Travel, Package Holiday and Package Tour Regulations 1992 (SI 1992/3288); secondly, he pursued a claim under sections 4 and 13 of the Supply of Goods and Services Act 1982.
TUI lodged a defence, in which it denied that the illness had been caused by the consumption of food or drink in the hotel and put Mr Griffiths to proof as to the cause of his illness. Thereafter, the claim was allocated to the multitrack under Part 29 of the Civil Procedure Rules on 12 January 2018. Mr Griffiths obtained medical reports from a gastroenterologist, Dr Linzi Thomas, and a microbiologist, Professor Hugh Pennington. Under the case management by the court which that procedure provides, both parties were given permission to rely on expert evidence from a gastroenterologist and a microbiologist.
TUI failed to serve a report from a gastroenterologist within the time specified by the court. It chose not to serve a report by a Dr Gant, a consultant microbiologist, which addressed causation. TUI confirmed that it did not intend to rely on expert evidence from a microbiologist. Mr Griffiths' lawyers served Professor Pennington's report. TUI's lawyers had by then applied for permission to rely on a report by a gastroenterologist and for relief from sanctions. The court refused that application with the result that TUI went to trial without the support of any expert evidence. TUI lodged witness statements by witnesses as to fact who TUI had intended would give evidence by video link but, in the event, they were not called or cross-examined. Their evidence was accordingly discounted. Further, TUI did not seek to have Professor Pennington attend the trial for cross-examination with the result that his evidence was accepted on paper. His expert evidence was therefore uncontroverted in the sense that it was not in conflict with any other evidence led at the trial and was not subjected to challenge by cross-examination.
HHJ Truman heard the evidence and the submissions of the parties in a one-day trial on 20 June 2019. She accepted the evidence of Mr and Mrs Griffiths, who were cross-examined and whom she described as patently honest and straightforward witnesses. Mr Griffiths in his witness statement criticised the hygiene standards of the hotel, and in particular the buffet restaurants in the open air, and Mrs Griffiths confirmed the contents of his statement. The trial judge made no findings of fact on those matters, but recorded the allegations made in the Statement of Claim. The trial judge recorded the evidence of Dr Thomas including that relating to causation, which drew on the Griffiths' witness statements about the hygiene standards in the hotel. Dr Thomas was asked questions under CPR Pt 35.6, which she answered, but she did not attend trial. In the event, Mr Griffiths' counsel relied on Dr Thomas's report in relation to diagnosis and prognosis but did not rely on her conclusions in relation to causation. As a result, the only expert evidence on causation before the trial judge at the conclusion of the trial was the uncontroverted expert report of Professor Pennington and his answers to questions posed by the defendant's solicitors under CPR Pt 35.6.
Counsel for TUI made specific criticisms of Professor Pennington's evidence which were set out in a skeleton argument served on the afternoon before the trial. Those criticisms formed the basis of counsel's submissions at trial and of the trial judge's decision. It is therefore necessary to set out in full the substantive parts of Professor Pennington's report and the CPR Pt 35.6 questions and answers which followed it.
After Professor Pennington recorded his professional qualifications and the materials with which he had been provided for his report, he described his instructions as being to comment on the chronology of events, provide a detailed commentary on the issue of gastric illness and any breaches of health and safety procedures in place at the hotel, and express an opinion as to whether on the balance of probabilities Mr Griffiths' illnesses were caused by staying at the hotel and a breakdown of health and hygiene practices there. After a brief summary of Mr Griffiths' symptoms, Professor Pennington recorded the results of the tests on stool samples taken in the Turkish hospital. He stated (para 2):
“According to the discharge report of 16 August 2014 by Dr Yusuf Tuna, Entamoeba histolytica cysts and Giardia intestinalis were said to be seen on microscopy, and rotavirus, adenovirus, E. histolytica and Giardia antugen (sic) tests were positive. However, [according to] 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 (sic) on 6 August 2014. Self...
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