Andrew Young, led by Robert Weir QC, has recently appeared for the successful claimants in an appeal to the Court of Appeal in the case of Wood and Wood v TUI Travel Plc  EWCA Civ 11. The judgment (handed down on 16th January 2017) is of great significance to the travel industry.
In this case, the claimants became ill with gastroenteritis as a result of eating contaminated food at a meal provided by the hotel where they were staying as part of an all-inclusive package holiday in the Dominican Republic arranged by the Defendant tour operator. The trial judge found that, whilst the food consumed by the claimants at the hotel had caused illness, it had been contaminated without fault on the part of the hotel. Accordingly, the claims brought by the claimants under the Package Travel Regulations and in common law negligence failed. However, the trial judge found in favour of the claimants on the basis that the food supplied by the hotel was not of satisfactory quality for the purposes of section 4(2) of the Supply of Goods and Services Act 1982 and that this made the tour operator in breach of his statutory duty under that Act and therefore liable to the claimants.
The tour operator appealed on the basis that the package holiday contract was a contract for the supply of services and could not therefore at the same time be a contract for the transfer of goods within the meaning of the 1982 Act. This ground of appeal was effectively abandoned during the course of the appeal. However, the tour operator also raised a more interesting argument, which was that, because of the complicated nature of the contractual arrangement in package travel cases, no property in goods was transferred by the tour operator to the claimants, so the claimants never acquired property in the food that they consumed and the tour operator never became subject to the duty to supply goods of satisfactory quality under the 1982 Act. Burnett LJ conceded that this argument had an elegant simplicity, but he had little difficulty in rejecting it and affirming that, as in the more straightforward case of a meal in a restaurant, which is governed by the equivalent duties under the Sale of Goods Act, a person supplying food to a consumer will be liable, if that food is not fit for human consumption.
This case is a very important decision in the field of travel law, as the Court of Appeal has confirmed a point which has hitherto often been disputed by defendants, namely that it is not necessary for a claimant to establish fault on the part of the hotel or to rely on the Package Travel Regulations in order to succeed in a food poisoning claim against a tour operator. Provided the claimant can show that he became ill as a result of eating contaminated food provided as part of the holiday contract, he should succeed in a claim for damages against the tour operator and it is no defence for the tour operator to adduce evidence that this happened despite the hotel taken all reasonable care to avoid any outbreak of food poisoning at the hotel.
Aside from the point of law decided by Wood, the Court of Appeal judgment is entertaining for its discussion in response to what it called the appellant’s metaphysical submissions as to the precise moment when property in food passed to the customer (was it when it was put on his plate or when it entered his mouth?) and whether the customer was the owner of scraps left on his plate that he decided to feed to his dog. These are encouraging signs that Court of Appeal judges do in fact have a sense of humour after all!
Please click here to read the judgment in full.
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October 8, 2021