Faheem v Red Sea Holidays (October 2017) - unreported elsewhere - successful holiday illness case
I am very grateful to Paul O'Callaghan of Clerksroom for a note of the Judgment in this case:-
Judgment - 19/10/17 - DJ Evans - Manchester County Court.
The Claimant went on holiday on 24th August 2015 and her case is that she became ill as a result of eating food that was not of satisfactory quality. She became ill on the evening of 25th August 2015.
The Claimant evidence is that before she went on the trip she had only eaten food from home, she ate her own sandwich on the aeroplane. When she got to the hotel she ate food from the buffet. She didn't eat or drink anything outside of the hotel or on the aeroplane. She says that she didn't drink any tap water only bottled water. She noticed at the buffet that the food was not covered and there were flies around the food. She noticed that the food was topped up and the workers were not wearing gloves. She later noticed that some of the food was not cooked properly and some of the ice was made from tap water. This was a special holiday involving various excursions and a birthday trip she went on the excursions but she was unable to participate as she was ill. She went on the glass bottom boat on the last day and she didn't enjoy it as she was still nauseous.
In cross examination it was put to her that she didn't complain either at the hotel or on her return from the holiday either to the hotel staff or to the tour operators. She did mention her illness to the reception but the receptionist did not understand english and was rude. She went to a pharmacy to seek treatment rather than the hotel doctor.
When it got to December and she was less busy she contacted solicitors. She said it hadn't occurred to her at the time to complain. She did go to the doctor and the medical records record an attendance shortly after she returned from holiday. She says that they arrived at 9am at the hotel with around 25 others. They ate from the buffet she said that on the first day of the holiday she had gone into the town. It was put to her that this was inconsistent with the medical records but she had already corrected this in evidence in chief. She said when she went out fo the hotel she didn't go to any cafes she just went to the shops. It was put to her that she should have taken photos of the hygiene issues if there were any but she said that wasn't what she wanted to take photos of this whilst on holiday. She was cross examined about the excursions she tried to enjoy herself be- cause she had paid for the holiday. She said that not all of the photographs were her own.
She had gone to a pharmacy and purchased medication after explaining symptoms. She did not take a receipt. She was asked about the glass bottom boat and she said she was still unwell but she didn't suffer with seasickness. She said it was right to say she had anxiety pre-dating the holiday. It was put to her that she enjoyed the holiday perfectly well but she denied this.
The medical evidence is from Mr Pinto he is a GP rather than a gastroenteritis. He took a history from the Claimant and he said that in his opinion on balance the bowel upset was caused by one of the meals she ate in the resort on a balance of probabilities.
He said that there are a number of common pathogens from which she could have contracted her illness. He was asked questions by the Defendants. He accepted in his replies that it was possible that her symptoms could have been caused by food that she had eaten before the trip. He accepted that there were other possible causes of illness.
He said if there was no evidence of anyone else ill at the resort this would have no effect on his opinion. He also said it was possible that the unwell person could have eaten a single piece of contaminated food. He accepted as was proper that his opinion was based on the history provided by the Claimant but he remained of the opinion that the infection was caused by food poisoning as a result of failings in the hygiene at the hotel.
Defendant’s evidence came from Monsieur Huart the manager of the hotel and Dr Raafaat. Both of them said the hotel had very good hygiene standards and they produced various documents from Cristal who deal with the hygiene audit for them. The documents identified that the hygiene standard was low risk with a score of 67/100 anything above 65 being low risk. He said there were no complaints by the claimant whilst she was there although there was an engineering problem> Claimant told me this was because her key didn't work.
A document shows three complaints of traveller’s diarrhoea recorded by the hotel doctor. He said there were regular audits of hygiene and all staff operate to high standards. In cross examination he accepted the complaints to the doctor only included those people treated by the doctor. His opinion was that 99% of diarrhoea illness had to be seen by the doctor. He said that there has never been a case of food poisoning in his hotel as far as he was aware. He was taken to the documents in the bundle that were supposed to show records of hygiene checks. They were all blank. He couldn't explain it. It was put to him that insects and birds can get into the buffet he said impossible because it is closed.
He told the court about the opening hours. He denied that food would be re-heated for people arriving late. Dr Raafart then gave evidence. He said he was not aware of any food poisoning in the hotel as they have good food hygiene measures. He was asked about the blank forms and he said these were templates. He said there were indeed completed versions of these forms in the kitchen and he would sent them over now. He said nobody had ever asked about them. He then went on to say he had sent the records to the Defendants or their solicitors. He too said the buffet was closed but he accepted that there were doors that led out to a terrace.
That was his evidence. There were two issues 1) was the claimant ill as she describes and 2) whether she is able to prove on balance of probabilities that the illness was caused by unsatisfactory food.
Counsel for the Defendant submitted that her evidence was inconsistent and the delay in bringing the claim was indicative of her not being able to prove contamination. Miss Moore pointed to the photographs and submitted she was having fun. In my view the claimant was an honest and straightforward witness and I accept the entirety of her evidence. It was not in a material sense inconsistent. The explanation for not complaining immediately was entirely reasonable. Importantly shortly after her return from holiday she did go to her GP. Now that might very well be the kind of attendance that some claimants might arrange to bolster a claim that they propose to bring. But this claimant had not got solicitors at this time. In my judgment it is a contemporaneous record.
I also accept what she says about the hotel receptionist failing to record her complaint.
The more difficult issue for the Claimant is one of causation because it is absolutely true to say as Miss Moore points out to me and as identified by the Court of Appeal in Wood their can be all sorts of causes of illness whilst on holiday. The fact of illness does not mean the claimant has eaten contaminated food. People fall ill all the time for all sorts of reasons. Miss Moore rightly took me to the paragraph in Wood where the Court noted it was not enough to infer that the food was to blame when someone was sick. Nonetheless that is not a statement of law because this is a statement of fact for me to determine. What it does is correctly identify for everybody the difficulties that a claimant may have. In this case it could be that the claimant suffered co-incidentally from some kind of viral illness or it could be, as Dr Pinto accepts, something she had eaten before she left. It could be that she is just susceptible to this type of thing or it could be that the food is unsatisfactory.
Dr Pinto’s view having regard to all of those potential causes taking into account what the Claimant told him about the standard of hygiene is that the most likely explanation is that the food was to blame. The fact that others were not ill does not mean that the claimant’s illness was not caused by the hotel.
I find as a fact that the food hygiene procedures were wholly inadequate. Firstly because I accept the claimant’s evidence. Secondly, neither of the Defendant’s witnesses were able to explain why it is that in circumstances where they claim to have temperature control and hygiene method why it is that they haven't been disclosed.
The Defendant is not suggesting that don't have control it has given disclosure of a large number of documents. If the documents had been available I would expect them to be disclosed as they are highly relevant. The second thing that I find is the fact that only three people complained doesn't mean that they were the only people who suffered. As I have already found that the claimant suffered there is already 1 person who suffered who doesn't appear on those records. All those records tell me is who actually saw the doctor.
Nobody really needs to see a doctor for food poisoning unless it is exceedingly severe. So whilst the Claimant cant bolster her case by pointing to numerous others who suffered illness the absence of such a record does not assist the defendant. The reality is I have found as a fact that the food hygiene was wholly inadequate and likely to lead to contamination on balance the cause was indeed the food at the hotel rather than any of the other possible but unlikely causes.
As far as quantum is concerned having regard to the guidelines and bearing in mind as Mr O’Callaghan has said this was a special holiday I find she didn't get a great deal of enjoyment out of it in terms of PSLA I will award ￡1800.
As for Diminution in Value bearing in mind I have uplifted the GD I will allow ￡200.
Damages
￡2000
Interest ￡24.00 P36 uplift ￡202.40
Total sum payable to Claimant = ￡2226.40
Order
- 1) Judgment for Claimant. Damages assessed at ￡2000, interest at ￡24 and P36 uplift at ￡202.40. Defendant to pay sum of ￡2226.40 to the Claimant within 21 days.
- 2) Defendant is to pay the Claimant’s costs and disbursements assessed at ￡7,003 within 21 days.