Food for Thought; Holiday Sickness
The industry has been experiencing a significant increase of illness claims by consumers over the last few years. It is thought that we are actually yet to see the true extent of the upsurge in these claims. The expected increase is due to the fact that claims management companies have only turned their attention to such claims in the last couple of years now that motor accident claims are far less lucrative than they once were.
The tenacity of the claims management companies and the solicitors who rely upon them in bringing such claims should not be underestimated. You may have seen recently in the national press that a claims management company would go as far as parking an ambulance, specifically touting for illness claims, outside a medical centre in Tenerife to sign clients up.
The reason they are interested in holiday illness claims is because they have proved difficult to defend where a claimant’s evidence is that they consumed food they thought contaminated. Even in the absence of a diagnosis of a food borne pathogen if the consumer says, on oath, in Court, that they believe they ate undercooked food in a hotel and if believed, it is very easy for the Court to conclude that the source of any illness was the food. As seen in Antcliffe v Thomas Cook, the service of contaminated food is sufficient to establish liability without any further proof of fault.
Amongst the genuine claims there is plainly scope for abuse if a consumer is willing to exaggerate or lie. Damages are often modest but they can also be very substantial if the illness causes complications and we have seen those seeking seven figure sums for the alleged life long disability and loss of career earnings after nothing more than eating an undercooked piece of chicken. There is therefore often an incentive to settle cheaply and quickly rather than let a claim become ever more complicated over time even if its believed it could be exaggerated or outright fraudulent. Qualified one way costs shifting is also a powerful incentive to settlement as unless the Court can be persuaded that a claim is “fundamentally dishonest” an operator will be unable to recover its legal costs even if successful. The irrecoverable costs of running a case to trial could therefore approximate to the costs of early settlement. Claimant solicitors it seems are well aware of this predicament and are prepared to bring increasingly marginal claims and are less inclined to compromise to achieve a settlement.
The problem is not limited to all inclusive package holidays to Tenerife and the like, if there is evidence of poorly prepared food at accommodation which formed part of a package there is risk. Operators are also at risk when contracting to provide accommodation only services where provision of food forms part of the hotel services.
The prospects of defending such claims increase where there is evidence of food being consumed outside the hotel, where no complaints were made, or where evidence of exaggeration or deceit is uncovered. But where there is a cultural shift in holidaymakers willingness to attribute holiday illness to food and thousands of such claims are being made, defending each one is currently less of an option.
Removing the provision of food from the holiday services would stop such claims but it is hardly the most practical commercial solution for many operators. If food is going to remain a regular feature of the holiday services it is likely that improvements in the collection and sharing of data between operators and also their suppliers will have to occur. Assistance by suppliers will remain a central feature of defending such claims and their contractual obligations to the tour operator will be key.
Please contact Claire on Claire.Ingleby@mb-law.co.uk for further advice.
Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.