Rawson v TUI UK Ltd [2025] EWHC 2093 (KB)

Dan Saxby (instructed by Kennedys) for the Respondent.

This judgment was handed down remotely at 10.30am on 12 August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Mr Justice Cavanagh:

• This a rolled-up hearing of the Appellant’s application for permission to appeal, which took place on the basis that the parties should be prepared to argue the full appeal, if permission is granted. I have, therefore, heard full argument on the appeal, and I indicated that I would give a judgment that will deal with permission to appeal and, if permission is given, will also deal with whether or not the appeal is to be allowed.

• The appeal is against a judgment that was handed down orally on 1 March 2024 by HHJ Murdoch, sitting at Leicester County Court, and following a trial that lasted three days, beginning on 13 December 2023. The judge described his judgment as “ex tempore”, though it was delivered over two months after the trial concluded. Counsel were in attendance, via CVP, at the time that the judgment was handed down. The judge has since approved the transcript of the judgment in the papers before me.

• The Appellant was represented before me by Mr Ian Pennock of counsel, and the Respondent by Mr Dan Saxby. Both were trial counsel. I am grateful to both counsel for their clear, helpful, and skilful submissions, which were of a high standard.

• In his judgment dated 1 March 2024, the judge dismissed the Appellant’s claim against the Respondent. The Appellant, who is a school teacher, had travelled to Mexico in July 2016, with her then partner, for a holiday at an all-inclusive hotel, which had been booked through the Respondent. The hotel was the Rui Vallarta in Nuevo Vallarta, on the Pacific coast of Mexico. She arrived on 8 July 2016 and left on 23 July 2016. At about 5 pm on 11 July, the Appellant fell ill with diarrhoea and vomiting. She continued to feel unwell for the rest of the holiday, though she was able to participate in a number of excursions after she had first felt unwell. She suffered bouts of diarrhoea six or seven times a day for the remainder of her holiday. After the Appellant’s return, she continued to suffer from diarrhoea, and was diagnosed with gastroenteritis. She has since been diagnosed with Post Infective Irritable Bowel Syndrome and has suffered from anxiety, stress and discomfort as a result. It was the Appellant’s case that this resulted from an infection that was caused by a pathogen in contaminated food or drink that she consumed at the hotel. It was her primary case that the cause was a pathogen known as cyclospora. Stool samples were analysed by a regional laboratory and the national reference laboratory in September 2016, some weeks after the Appellant’s return from holiday. The regional laboratory was the local Public Health England Laboratory and the national reference laboratory was the National Parasitology Reference Laboratory. The analysis at the regional laboratory concluded that stool microscopy had identified cyclospora oocytes (eggs) in the Appellant’s stool. The results of further analysis at the different, national reference laboratory, nine days later, did not indicate the presence of cyclospora oocytes. It was the Appellant’s case that the court should conclude, based on the regional laboratory’s results, that her illness was caused by cyclospora. However, she submitted in the alternative that, even if the pathogen concerned was not cyclospora, the court could be satisfied, on a balance of probabilities, that her illness was caused by another pathogen or pathogens that had been consumed in food or drink when staying at the hotel. The Appellant further contended that the food hygiene standards at the hotel were inadequate.

• The Respondent submitted at trial that the Appellant could not show that she fell ill whilst on holiday. The Respondent said that there was evidence that she had been suffering from diarrhoea before she left for Mexico. In any event, the Respondent submitted that the evidence, including the test results and the expert evidence, did not establish that the Appellant’s illness was caused by cyclospora. The Respondent further submitted that, whether the illness was caused by cyclospora or by another pathogen, the Appellant could not prove, to the civil standard, that the source of the pathogen was food or drink that the Appellant had consumed at the hotel.

• Though in substance a personal injury claim, in strict legal terms this was a claim for breach of contract. It was alleged that the Respondent was in breach of an implied obligation to ensure that the food and drink supplied by the hotel to which the Appellant was sent would be of satisfactory quality and safe for human consumption. This term was implied by section 4(2) of the Supply of Goods and Services Act 1982 and/or section 2 of the Consumer Rights Act 2015. The Appellant also alleged that the Respondent was in breach of a duty to ensure that the hotel would carry out the services supplied to the Appellant under her contract with the Respondent with reasonable care and skill, as implied by common law and/or by section 13 of the 1982 Act and or section 49 of the 2015 Act. The Appellant also contended that, pursuant to regulation 15(1) of the Package Travel Regulations, Package Holidays, and Package Tour Regulations 1992, the Respondent was liable to the Appellant for the proper performance of the obligations under the contract by the hotel. These legal obligations were not disputed by the Respondent. Their existence in foreign package holiday cases was confirmed by the Court of Appeal in Wood v TUI Travel plc t/a First Choice [2017] EWCA Civ 11; [2018] QB 927. The issue for the court was therefore whether the Appellant could prove on the balance of probabilities that she had contracted her illness from a pathogen in food or drink consumed at the hotel, in which case these obligations would have been breached.

• I say at the outset that the judge found in his judgment that the Appellant and her partner gave straightforward, honest, evidence, which the judge accepted in its entirety. This is not one of those cases in which a claimant is alleged to have fabricated or exaggerated the symptoms of sickness and diarrhoea that were encountered on holiday.

• The issues relating to liability that the judge had to consider were set out by Mr Pennock in his skeleton argument at trial.

• The first issue was whether the Appellant suffered from the symptoms that were alleged. There was no dispute on this issue. It was accepted that the Appellant had suffered the symptoms of gastroenteritis that she had described.

• The second issue was whether the symptoms had started before the Appellant went on holiday to Mexico, and so could not have been caused by food poisoning at the hotel. The judge accepted the Appellant’s case on this issue. He found that the Appellant is not the sort of person to mislead the court or her GP, or indeed to fly to Mexico when suffering from diarrhoea.

Continue reading this Judgment here.