News and Insights

If you want to make a claim, you must prove it

The recent surge in gastric illness (GI) claims, branded “the new whiplash” has caused significant debate. In fact, research from the travel industry suggests that total claims made by British holidaymakers may have risen by as much as 500% since 2013. A staggering figure which doesn’t come close to claims made by other European countries. The dramatic increase has triggered suspicion that large numbers of these claims may be exaggerated or false and has even led to threats of a ban on British people from all-inclusive holidays in some parts of Europe.

Tour operators are quick to point out that these numbers are in no small part down to unscrupulous claims firms which have been allegedly targeting tourists whilst they are abroad. The report of one such firm which plies its trade in Tenerife, operating in an ambulance emblazoned with the words “claims clinic” and driving around various hotels and hospitals in the hope of coaching malleable tourists into making a claim. Reports have been made that these companies convince claimants to fudge their stories, by exaggerating the number of days they may have been ill for, lying to say they only ate food served by the hotel, and/or pretending that more family members had been ill.

As a consequence of this, the costs suffered by tour operators are drastically increasing, and there are concerns that this, in turn, will lead to an increase in the price of package holidays, penalising the honest majority of holidaymakers. In an attempt to mitigate this, the UK Government (in a move not dissimilar to how the UK now deal with whiplash cases), want to reduce the cash incentives of bringing erroneous claims. They wish to introduce a system whereby tour operators pay a prescribed sum dependent on the value of the claim that would make the cost of defending a claim predictable. Prison sentences of up to three years for fraudulent claims are already in place to act as a deterrent but the government want more people prosecuted if they are found to be lying or exaggerating their GI claims.

When the public eye is so keenly evaluating these claims, it is not surprising that people with honest claims may be put off from making a claim. However, provided you are able to prove that your hotel was responsible for your illness, holidaymakers should not be put off making genuine claims particularly as the very recent case of Wood v TUI Travel Plc. [2017] PIQR P8 has made it easier for claimants to establish a duty upon their tour operators/hotel.

Wood is now the leading case on GI cases. Mr and Mrs Wood had purchased a two week package holiday to the Dominican Republic in 2011 with First Choice, to mark their 40^th wedding anniversary. Together with their return flights, they had their hotel with an “all inclusive” deal in which all their food and drink would be provided, and their transfers to and from the hotel were all organised for them. During their holiday, the couple only consumed food or drink that was provided by the hotel, primarily from a buffet. However, Mr Wood quickly developed symptoms of gastroenteritis and was admitted to hospital. A couple of days later, his wife also fell ill.

The Woods issued against Frist Choice who had sold them the holiday. The court found there was insufficient evidence to prove the hotel had been negligent in the preparation of their food, however they determined this did not prevent the Wood’s establishing liability. In a landmark decision, the court found First Choice liable pursuant to the Supply of Goods Act 1982 by providing food which was unfit for consumption. Although First Choice appealed, the Court of Appeal agreed with the lower court. This is an important decision for this type of claim because it makes it clear that tour operators will be responsible for the quality of food and drink they provide as part of a package holiday. However, it is not all plain sailing for claimants who wish to claim for GI. The burden shifts from having to establish a duty to having to prove you were ill and that illness was directly caused by the food or drink. No easy task!

What should you do if you fall ill while abroad?

It is possible that if you arrange a package holiday in Jersey, your tour operator will rely on UK regulations. You will be able to find this out by checking your terms and conditions. If your contract is governed by UK regulations you should seek advice from a UK lawyer.

Irrespective of whether your claim should be issued in the UK or Jersey, we recommend you carry out the following:

• Report your illness to the tour operator while you are still abroad and keep a record of any communication you have with them;
• Keep any records of medical treatment you received, and save packets of any medication you were prescribed, while abroad;
• If you know of other people in the hotel who suffered from a similar illness to you, note down their contact information;
• If you notice any additional things that might help prove your claim, for example, unhygienic work surfaces etc. that may have affected the quality of your food, then take photos of them.

If you are unfortunate enough to become ill whilst you are away and believe you are eligible for a claim, please contact our personal injury team on +44 (0)1534 632255 or email them on litigation@viberts.com.