Pragmatic Judge dismisses isolated salmonella claim at all-inclusive hotel
The judgment in Sheila Thomas v Virgin Holidays handed down recently demonstrates that it is possible in specific circumstances to defend cases involving confirmed salmonella and also provides a rare and helpful insight into the process of elimination adopted by the Judge when considering causation.
The Claimant stayed at an all-inclusive hotel in the Caribbean for a fortnight. She claimed that she only consumed food and drink provided by the hotel, apart from one bottle of water consumed at an unconnected local restaurant. During the second week she came down with diarrhoea and by the final day of the holiday her symptoms were severe. The stool sample tested positive for salmonella. She alleged that the infection had caused post infectious irritable bowel syndrome.
A cautious insurer would be forgiven for settling a case with these facts at an early stage. However, the case was defended firstly because an indemnity was acquired from the hotel at an early stage and secondly because the hotelier had an unshakeable confidence in the standards it operated. Nevertheless, causation of the salmonella remained a fundamental and challenging issue.
The Claimant gave detailed evidence about the food she ate which included regular amounts of chicken and seafood, but no eggs or mayonnaise. She confirmed she would not have deliberately eaten chicken that looked under cooked and stated she had catering experience. The hotel produced unusually high quality documentary evidence and excellent testimony from the senior chef who took great pride in maintaining standards and who impressed the court. Keeping those matters in mind, the Judge then methodically examined each food source in an attempt to establish the causation of the infection.
The Claimant argued it was an implied term of the holiday contract that the provision of uncontaminated food was an absolute obligation (applying strict liability rather than a fault based approach). She argued that if the hotel happened to serve a single piece of contaminated food then the tour operator would be automatically liable in every case. Happily for tour operators and insurers alike, this extreme approach was rejected. The Judge upheld the well established fault based test that the implied duty is to exercise reasonable skill and care and to devise the best practicable systems and to enforce them with reasonable safety.
In light of the evidence, the Judge was satisfied that he was safe to eliminate the hotel food as a source of the salmonella infection. He accepted that the Claimant was the only guest who had been ill at the material period and was careful about what she ate, and was satisfied that the standards operated and food consumed were of an appropriate standard. He therefore held that the Claimant did not contract the infection from the hotel at all. He also found that this was an isolated case and concluded that it came from an outside source, most likely the local restaurant visited by the Claimant, (despite her evidence that she only consumed water from that establishment which he didn’t entirely accept). Accordingly the claim was dismissed.
However, of particular importance, the Judge commented that even if he was wrong and the source of the infection had been the hotel, he would have still dismissed the claim on the basis that this was an isolated occurrence and there was nothing in the hotel’s detailed health and hygiene records to show that the infection was due to staff negligence.
The case is a heartening demonstration that there is scope to defend isolated occurrences of salmonella provided the supplier provides consistent cooperation throughout the claim, the best incentive being the obligation to indemnify from the outset.
If you would like further information please contact Gary Tweddle at firstname.lastname@example.org
Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.