Our latest Personal Injury and Travel Update focuses on Gastric Illness Claims, Andrew Young examine two recent Court of Appeal cases in which members of 3 Hare Court acted.
Dubbed variously ‘the new PPI’ or ‘the new whiplash’, gastric illness claims have been increasing exponentially in the last 12 months. Seen by many as a sign of consumer empowerment and a way to make tour operators more accountable for the quality of holidays they sell, to others the rise is attributable to unscrupulous claims management companies and fraudulent or exaggerating claimants. Recent months have seen the MOJ open a consultation on gastric illness claims, the police warn of the risk of prosecution for bringing false claims and defendants pursue cost awards on the grounds of fundamental dishonesty.
In fact the battle over gastric illness claims has been quietly raging in the courts for several years and 3 Hare Court has been in the vanguard. Two of our recent Court of Appeal cases arose in different corners of the debate.
Howard Stevens QC appeared for the successful appellants in Swift & ors v Fred Olsen Cruise Lines  EWCA Civ 785. In that case it was established that the illness was caused by norovirus, a highly contagious virus which has long been a bète noire of cruise operators. An Athens Convention claim, the issue at first instance was whether the claimants had contracted norovirus due to the fault or neglect of the defendants, its servants or agents. In practical terms the question was whether reasonable steps had been taken to implement the Fred Olsen ‘Norovirus Outbreak and Control Plan’.
The Court of Appeal upheld the first instance decision in favour of the claimants. Whilst Fred Olsen CL could not have guaranteed that passengers would not contract norovirus nor could they guarantee that all surfaces on board ship would be clean at all times, it was at fault because of material failures to implement its own plan. That failure had caused or materially contributed to the spread of norovirus on board ship and to the claimants’ illnesses.
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This article forms part of our bi-monthly PI and Travel Update
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