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.
(1) Factual background
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.