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The Dekagram 11th April 2023

Articles, News | Tue 11th Apr, 2023

We trust our readers enjoyed their long weekend and that they have returned to the fray, like us, refreshed and ready for anything. Just before the break judgment was handed down in a gastric claim which brought into focus a number of issues which have troubled courts and litigators alike for some time; we’ve distilled for you a selection of them in the case study for this week’s Dekagram. But that’s not all. As promised, this week’s issue carries a competition – following the roaring success of the merger between 1CL and 9GC, the 1CL Official Cocktail, the French 75, has been retired from its role, and we need to find a new cocktail or mocktail that encapsulates the spirit of the new set. The reader who nominates the winning Dektail will of course receive a small prize and the honour of being toasted at chambers events hereinafter.

Evidential Issues in Food Poisoning Claims: Rollo v Jet2 Holidays Limited, unreported, 3rd April 2023

It’s hard to believe that it’s been over six years since Mr and Mrs Wood succeeded in their claim in the Court of Appeal (in Wood v TUI Travel Plc [2018] 2 WLR 1051), at which time Sir Brian Leveson uttered the now immortal words:

“Neither do I accept the floodgates argument which Mr Aldous advanced. I agree that it will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.”

The status of these obiter dicta has been endlessly debated ever since, with some litigators taking them as an evidential milestone and others as a throwaway remark, but it is certainly true that following Wood the floodgates did indeed open, and to such an extent that the legislature swiftly moved to stem the incoming tide of diarrhoea and vomiting by way of fixed costs and a new pre-action protocol dealing specifically with gastric illness claims valued at less than £25,000.

So where do we now stand?

As foreshadowed by Sir B, where an outbreak of illness is shown to have occurred, it will often be difficult (but not impossible) for a defendant to defend a group claim. The notable exception, of course, is in respect of viral illness, since in any case not involving acquisition via food or drink the claimant must prove fault on the part of the hotelier, and it is notoriously difficult to prevent viruses from spreading in closed environments such as hotels or (even worse) cruise ships.

Similarly, where the claimant can show that (s)he fell ill as a result of the acquisition of an identified pathogen, so long as the incubation period fits the holiday dates the claim is likely to succeed. Hence, where a claimant is shown to have been infected with salmonella, did not eat outside the hotel for the duration of the holiday, and fell ill towards the end of the holiday, it is overwhelmingly likely that (s)he will establish liability, irrespective of the proven standards of hygiene at the hotel. This is because salmonella most commonly has an incubation period of between 12 and 36 hours and is overwhelmingly spread via the consumption of contaminated food, particularly poultry. Therefore on the balance of probabilities if everything the claimant ate in the 36 hours prior to falling ill was provided by the hotel, (s)he was probably infected by hotel food.

As a rule of thumb, then, where the claimant has tested positive for a foodborne pathogen and the incubation period for that pathogen falls within the holiday period, the claim is likely to succeed, if (s)he gives evidence that no food was eaten outside the hotel for the duration of the holiday.

But what of the claimant who has tested positive for a pathogen, the incubation period for which falls partly within and partly outside the holiday? The answer, as always with barristers, is that everything will depend on the facts of the case.

A recent decision provides an illustration of how a claimant can win such a case with meticulous preparation and the right factual nexus.

Iain Rollo was not in the best of health even before he and his wife embarked on their holiday. He had a history of renal cancer and required kidney dialysis three times a week; he had type 2 diabetes; and he was taking a proton pump inhibitor (PPI). He and his wife took a half board holiday in Benidorm with the Defendant tour operator between 2nd and 14th July 2017, during the course of which he fell ill with the symptoms of gastric illness. He was hospitalised locally, but the cause of his illness was not investigated. On his return to the UK his symptoms deteriorated markedly, and on 23rd July 2017 he was admitted to hospital for emergency thrombectomy, angiography, angioplasty and stenting. On 25th, 26th and 27th July he provided stool samples which tested positive for campylobacter. He brought a claim alleging that he had acquired the infection whilst on holiday and as a result of eating food provided by the hotel which was contaminated with the pathogen. The Defendant defended the claim on the basis that he had fallen ill very early on in the holiday, and therefore might have eaten the contaminated food prior to leaving the UK; alternatively that the positive stool samples were provided so long after the holiday that he might have acquired the illness after his return to the UK. Essentially, in the absence of a proven outbreak of illness at the hotel, he could not prove on the balance of probabilities that he had eaten the contaminated food during the holiday and at the hotel.

The Rollos gave evidence at trial to the effect that:

  • when in the UK they ate the same food, hardly ever ate chicken, and on those rare occasions when they did eat chicken, it had previously been frozen;
  • Mrs Rollo, knowing that her husband was in poor health and that an episode of gastric illness could have very serious consequences for him, took particular care when preparing the couple’s food;
  • notwithstanding that the couple had booked a half board holiday, Mr Rollo did not eat outside the hotel during the course of their stay – he was under strict instructions to limit his fluid intake due to the need for him to undergo dialysis, and as a result his intake of food was also very limited;
  • Mr Rollo had probably eaten flattened chicken from the show cooking station on the evening of 2nd and/or 3rd July; Mrs Rollo had not done so;
  • whatever the records from the Spanish hospital might show, Mr Rollo had fallen ill on the afternoon of 4th July, the second full day of the holiday, and not on 3rd July. They remembered this most distinctly because he had undergone dialysis on the afternoon of 4th July and would not have been able to do so (or at least it would have been a highly memorable event) had he been suffering from diarrhoea at the time.

The Defendant found itself in the frustrating position of not being able to adduce evidence from its hotel witnesses at trial. This was because these witnesses were located abroad, in Spain, and although the Defendant’s solicitors had made early appropriate enquiries as to whether the Spanish authorities permit the giving of evidence abroad, the results of those enquiries were inconclusive. Notwithstanding that everyone present in court knew full well that Spanish witnesses routinely give evidence in the English courts, the judge decided that she could not permit such evidence to be given in this particular case, in the face of doubts raised by the relevant authorities as to whether it was permissible to do so. It may be that this in itself did not alter the course of the trial, however, since (spoiler alert) the witnesses the Defendant had proposed to call were unable to speak as to the day to day running of the show cooking station which turned out to be the likeliest source of the undercooked poultry found to have caused the illness. The Defendant was able to call a witness from the tour operator itself, and she gave evidence to the effect that no outbreak of illness had occurred at the hotel at the time of the holiday; but this was undermined by the fact that the Defendant’s reporting system was shown to have been fallible, by the fact that the hotel was not exclusive to the Defendant tour operator, and by the consensus amongst the experts that campylobacter tends to be sporadic and does not usually result in outbreaks anyway.

So the factual nexus was that the Claimant had fallen ill about 44 hours or so after first eating at the hotel, at which time he had eaten chicken from a show cooking grill. There was very little evidence about the hygiene standards at the grill, save that it was probably the case that whatever was happening there, it had not caused an outbreak of illness. However, the court accepted that whilst the legal burden of proof remained on the Claimant throughout, the evidential burden of proving the standards of food hygiene in place at the time of the holiday rested on the Defendant, as the only party with any realistic chance of bringing evidence as to the systemic culture at the time:

The Court therefore accepts, in my judgement, that whilst the burden of proof in this case, is on the Claimant, the evidential shift of the burden of proof, would lie with the Defendant, and their knowledge with regard to the disclosure of documents in respect to food hygiene standards. In my judgement, therefore the Court accepts Miss Prager’s submission, that where there is a gap in information with regard to the evidence, the burden is on the Defendant to disclose that evidence. This court consequently, will prefer the evidence of the Claimant, and his observation and lived experience.

Campylobacter, the experts all agreed, typically has an incubation period of between two and five days; but a wider known range of between one and eleven days. The microbiologist instructed on behalf of the Claimant gave evidence that he may well have fallen at the lower end of the range, due to his medical conditions and the medication taken to control them, particularly the PPI, which lowers stomach acidity, rendering it more likely that a higher dose of the pathogen will survive the stomach. The Defendant’s microbiologist, on the other hand, opined that a considerable majority of cases of campylobacter have an incubation period greater than two days. He gave evidence that it was for exceptional for longer or shorter periods to be encountered; in one study, 30% or fewer cases showed symptoms after two days or less, and only 10% or fewer showed symptoms after one day or less.

The court found the argument that taking PPIs has a tendency to shorten the incubation period for campylobacter ‘persuasive’. Moreover, there was evidence in the scientific papers before the court that the incubation period was shorter for children, and it followed from this that in adults it would be longer than the median for all ages:

There was an agreement between experts, that there was a longer incubation period in children, and therefore, if the study showed a mean incubation period of between 2.5 days and 4.3 days, and that study included children, as well as adults, then inevitably that would mean that it was more likely than not, adults could have a shorter incubation period.

The judge took into account Mr Rollo’s age, gender, unrelated medical conditions and medication, and the fact that he rarely if ever ate chicken at home (and when he did it had previously been frozen – notably, freezing destroys campylobacter). She concluded in the light of all of these factors that it was more likely than not that he had acquired his illness from food eaten at the hotel, probably contaminated poultry cooked at the show cooking station.


The outcome in Rollo is a reminder that notwithstanding what Sir Brian Leveson may have assumed, in the County Courts these gastric cases will all turn on the lay and expert evidence presented to the court, and (crucially) how it is presented. The Rollos were as credible a pair of witnesses as you could hope to have, whereas the evidence from the Spanish witnesses had to be read, and there was no evidence from the members of staff who would actually have handled the food in question. The Defendant’s expert evidence, whilst no doubt cogent as far as it went, took insufficient account of the Claimant’s particular characteristics or of the niceties of the scientific literature presented, in particular the difference between incubation periods in children and in adults.

The author was also interested to note the court’s willingness to reverse the evidential burden of proof, something regular readers will know is a recurring theme in claims under the Package Travel Regulations 1992 and 2018. Although the claimant will always bear the legal burden of proving his or her case in these claims, it is suggested that the defendant ought to bear the burden of proving, for example, the date at which a particular hotel was built or renovated, or that the hotel has a particular inspection regime in place, since the tour operator is better placed than the consumer to adduce such evidence. Failure on the part of the defendant to adduce this evidence is likely to lead to adverse inferences being drawn, often affecting the outcome of the claim.

Sarah Prager KC, instructed by Jessica Moss of Irwin Mitchell, acted for the Claimant in Rollo v Jet2 Holidays.

Read the judgment here.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.

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