The Dekagram: 25th November 2024

We hope to see as many of our readers as possible at the APIL International Injuries Conference on Friday 29^th, which (naturally) Deka Chambers is sponsoring – so you may be assured of the highest level of merch, including some festive objets d’art provided in response to overwhelming public demand. You can still Book now not only to see Deka’s Matthew Chapman KC and Kerry Nicholson in action, but to drop in on Emma Williams and David Barrow as they man the Dekastall. The program is of such interest, and the merch of such outstanding quality, that you never know who else from Deka might pop in to participate.

In the meantime, as we hurtle ever faster towards the festive season, Robbie Parkin reminds us of the importance of checking that your drinks are of a quality commensurate with Dekamerch, and examines the redress available in the sad event that they are not.

The Laotian Tainted Alcohol Incident in English Law

Earlier this week, a number of Western tourists, including at least one British citizen, died or were seriously injured as a result of consuming alcoholic beverages served at a popular backpacker hostel in Vang Vieng, Laos. It transpired that the drinks had been tainted with Methanol.

Methanol is a highly toxic variety of alcohol, used primarily for quasi-industrial functions such as antifreeze, hand sanitisers, and windscreen wash. It is, however, inexpensive and has a superficially similar intoxicating effect to the Ethanol alcohol intended for human consumption.

As a result, Methanol has a sorry history of misuse in the moonshine or bootleg alcohol industry; i.e. low grade home manufactured alcoholic drinks, clandestinely produced, often to evade regulatory or tax implications. Doing so courts disaster. If consumed, Methanol causes acute neuropathic injuries, leading to blindness, a coma, and eventually death, even in fairly modest doses.

This article is written at a very early stage with criminal investigations in Laos still ongoing, and so no more than assumptions can yet be drawn, but the implication of these events appears to be that the hostel had (carelessly or deliberately) cut its costs by acquiring cheap knock-off alcohol for its bar facilities, sold it to customers, not appreciating, until far too late, that it was toxic for human consumption. This article considers the legal position if that in fact transpires to be the case (accepting that it is not yet proven).

Incidents of this kind are not nearly as uncommon as the reporting of this incident may imply- illustratively, 30 died and nearly 100 were injured in a similar incident in Russia in 2023[1]; 54 died and 117 were injured in an incident in Peru in 2022[2]; and 23 died and nearly 300 were injured in an incident in the Philippines in 2019[3]. Without wishing to diminish the tragic effects of any of these incidents, there should be no illusion that the media attention paid to this case was a result of anything other than the fact that Western tourists were affected.

It follows that looking at these poisonings through the lens of the tourism industry is unavoidable. While this event was particularly awful in scale, incidents involving tainted food or drink in the tourism industry are not as rare as it might comfort us to believe. They are common enough that, in certain circumstances, the law of England and Wales will seek to provide a remedy for a person injured, or worse, in this manner abroad.

What, if any, recourse might those injured, or the families of those killed, have in this jurisdiction?

The Package Tour Regulations

Had any of those affected booked a qualifying kind of holiday from a UK-based travel agent, it is likely that they would have a cause of action, in the UK, against that travel agent or their insurers.

That right derives from the Package Travel and Linked Travel Arrangements Regulations 2018[4] (“the Regulations”). These apply to package holidays as defined in regs.2(5)-(6)[5] thereof. In short, where two or more travel services are sold together as a package (say, accommodation, transport, or catering), that is a “package holiday” for the purposes of the Regulations.

A distinct set of regulations apply to holidays booked before the coming into force of the 2018 Regulations on 1 June 2018; the Package Travel (etc) Regulations 1992[6]. The rules are materially very similar, and as it has now been more than six years since the 2018 Regulations came into force, there must be precious few claims of that nature still to be issued- but it could in principle happen.

It seems likely that some of the victims of this incident, had, say, booked a package, staying at the hostel, but also paying a single inclusive price for flights, catering, or excursions. Those, at least, would be covered by the 2018 Regulations assuming the holiday was not booked many years ago. 

What then? A contract for the supply of goods is subject, at least in England and Wales, to an implied term under s.4(2) Supply of Goods and Services Act 1982[7] that the goods supplied under the contract are of satisfactory quality. So, in the case of alcoholic drinks, that would be tantamount to an implied term that the alcohol would be fit for human consumption.

The Regulations incorporate into the Package Travel agreement a further implied term imposing responsibility on the “package organiser” (almost invariably the selling travel agent) liability for the performance of the services pursuant to the Package.

Under reg.15[8] of the Regulations:

15.—(1) The provisions of this regulation are implied as a term in every package travel contract.

(2) The organiser is liable to the traveller for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers.

So, crucially:

• The England or Wales based organiser is liable in contract for the performance of the package services.
• Notwithstanding that the claims may involve personal injury, the potential claim against the organiser is in contract, not tort; so the position under the Limitation Act 1980 is more favourable to the Claimant.
• That contract is formed in this jurisdiction, and so is subject to the laws of England and Wales; and a claim may be issued against them here, notwithstanding foreign performance of the services.
• The organiser is liable, even though the services in breach were provided by a third-party agent- in other words, it is conceptually similar to vicarious liability.

What standard of performance is to be expected? The position is that set out in Wilson v Best Travel [1993] 1 All ER 353:

The duty of care of the tour operator is likely to extend to checking that local safety Regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question.

In short, the operator will be in breach of the 2018 Regulations where the injury in question is caused by:

• A failure to comply with local safety standards (which will not necessarily be the same as UK standards).
• Some failure which would lead a reasonable holidaymaker not to visit the hotel in question.

As to the former, what those local standards are, and whether they have been breached, is a question of fact for expert evidence. If there is sufficient evidence that the local standards are unclear or wholly absent (as opposed to merely inadequately evidenced), a court may be able to infer that the standards are those internationally accepted, mostly by reference to UK practices- TUI UK Limited v Morgan [2020] EWHC 2944 (Ch)[9]. However, the injured Claimant relies on that principle “at their peril”- Lougheed v On the Beach Limited [2014] EWCA Civ 1538[10].

In other words, in order to succeed under this head, a consumer of a package tour would have to demonstrate the existence and nature of the local regulations in Laos, show that there were specific provisions of law relating to Methanol toxicity, and show that those had been breached- or; at a push, demonstrate that no such standards at all existed, and, as such, other globally recognised standards should be adopted instead.

That, of course, is quite a handful. But the alternative route works better, in this case. In TUI UK Limited v Griffiths [2023] UKSC 48[11], liability was found in the absence of local standards entirely where there was a failure to comply with well-established international standards such as Hazard Analysis Critical Control Point (“HACCP”) relating to food and beverage safety- a failure in this regard would lead a reasonable holidaymaker not to visit the hotel in question.

Standards relating to food or drink safety may, for now, be the only type of claim capable of falling into this bracket, and not for lack of trying- see Gouldbourn v Balkan Holidays [2010] EWCA Civ 372[12], for example.

Regardless, a special status for claims related to food or drink contamination is well recognised. Most of the case law relates to outbreaks of foodborne pathogens such as salmonella or E-Coli; but it seems manifestly obvious that cases of Methanol poisoning would fall into the same category. A beverage tainted in such a manner is clearly not of adequate quality.

The normal issue is one of causation, as described in Wood & Anor v TUI Travel Plc (t/a First Choice) [2017] EWCA Civ 11[13]:

29… The judge was satisfied on the evidence that Mr and Mrs Wood suffered illness as a result of the contamination of the food or drink they had consumed. Such illness can be caused by any number of other factors. Poor personal hygiene is an example but equally bugs can be picked up in the sea or a swimming pool. In a claim for damages of this sort, the claimant must prove that food or drink provided was the cause of their troubles and that the food was not “satisfactory”. It is well-known that some people react adversely to new food or different water and develop upset stomachs. Neither would be unsatisfactory for the purposes of the 1982 Act. That is an accepted hazard of travel. Proving that an episode of this sort was caused by food which was unfit is far from easy. It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved; and it might be difficult to prove that food (or drink) was not of satisfactory quality in this sense in the absence of evidence of others who had consumed the food being similarly afflicted. Additionally, other potential causes of the illness would have to be considered such as a vomiting virus.

So, in a more traditional case, a traveller becomes ill with diarrhoea and stomach cramps while staying at a hotel. He says that his illness could only have been caused by poor quality food consumed there. The hotel, by contrast, argues that he may have eaten or drunk outside the hotel on an excursion; or may have been infected by contact with contaminated seawater; or not be suffering from an infectious illness at all, but merely heatstroke or the effects of over-indulgence. The traveller denies this, asserting that he did not eat outside the hotel and used only bottled water, and pointing to poor hygiene practices or record keeping at the hotel, or a large number of other cases of sickness occurring at the same time- and the battle lines are drawn.

But in this particular case, there is no apparent question of the causation of the symptoms (Methanol poisoning) or the source of that poisoning (the backpacker hostel), given the number and nature of the cases. It seems far fetched that the hostel could escape liability in this way.

Could it argue that a rogue supplier had caused the poisoning by some frolic of his own? Perhaps, and such an explanation may well be factually credible. But it seems unlikely to provide much of a defence- the net in respect of vicarious liability by employees of local service suppliers is cast rather broadly following X v Kuoni Travel [2021] UKSC 34[14]:

48. The CJEU has taken a narrow view of the exemption from liability under the third indent of article 5(2) of Directive 90/314. It has no application where a failure of performance of obligations under a package travel contract is the result of acts or omissions of employees of suppliers of services performing those obligations. Accordingly, regulation 15(2)(c)(ii) which implements the Directive provides no defence to Kuoni in the present proceedings.

Alternatives

So far so good. But what if these were not booked as part of a package tour? While that distinction may have blurred over the years, a backpacker hostel seems most likely to have been booked as part of a privately organised travel arrangement, rather than as a package holiday. If so, does that extinguish any possible remedy in the UK?

Not necessarily, though certainly it makes matters more complicated. Claims arising from foreign torts can only be pursued in England and Wales where CPR PD 6B para.3.1(9)(a) applies- i.e.: the “damage was sustained … within the jurisdiction”.

That sounds impossible for an accident occurring abroad, as the injury itself was sustained entirely in Laos (in this case).

Not necessarily so, as result of FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45[15]. The concept of damage caused by the accident is to be understood broadly. It is sufficient for some substantial loss to be incurred in England and Wales. The PSLA element of the loss may not have been, but might the victims, or their families, have medical expenses, loss of earnings or dependency, or repatriation, funeral, or testamentary expenses in the jurisdiction? It seems almost inevitable that they will.

There is an additional requirement that England or Wales is the appropriate forum in which to bring a claim- so this cannot be used to pursue claims where there is no substantial connection between the wrongdoing and this jurisdiction. Again, that would be circumstance specific, but given that a number of potential claims would be brought by family or dependants in the UK, that seems highly plausible.

There is a catch, as may be expected. In such a claim, the applicable legal system is determined under Art.4 of the Rome II Convention[16], and, in short, liability and damages are determined in accordance with the law of the place in which the accident occurred, whereas procedure and evidence are determined in accordance with the law of England and Wales.

Local law is a matter for expert evidence, similar to evidence of local standards. There will need to be a report from a local lawyer setting out the rules in the jurisdiction regarding liability and quantum. Damages will not be those recoverable in England and Wales, but in Laos.

Interest is governed by local law- Troke & Anor v Amgen Seguros Generales Compania De Seguros Y Reaseguros SAU [2020] EWHC 2976 (QB)[17], whereas matters related to costs are governed by English law- Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB). But either way- the objective will be to identify a possible cause of action in Laos, not in the UK.

Summary

Bluntly, while a great deal of the facts about this incident are not yet entirely clear (and could potentially change the picture significantly), if any of the victims of this poisoning incident booked their stay at the backpacker hostel as a package tour in England or Wales, the organiser responsible would be wise to notify their insurers of a strong potential claim against them.

Even if no package tour was involved, the victims or their families, at least those affected from this country, probably could pursue a claim for damages in England or Wales against the operator of the backpacker hostel, assuming the law of Laos permits it.

The question would then be a practical rather than a legal one. Would there be sufficient insurance, or a clearly identifiable defendant, against whom such a claim could be brought? It is one thing to have a claim against a luxury hotel operated by a large international corporation, albeit in Egypt; and quite another to have a claim against a doubtless somewhat ramshackle, albeit popular, backpacker hostel in Laos.

Ought, as a matter of public policy, a travel agent really be expected to be aware of one-off local practices in far-flung destinations around the world? Scepticism is understandable.

But, on the other hand, much of the law in this area is about ensuring that genuine loss suffered in circumstances such as these is covered by insurance, and can be pursued domestically. It is more a matter of pragmatism than apportionment of the blame.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

[1] https://www.vedomosti.ru/society/news/2023/06/08/979330-kolokoltsev-uvolil-zamnachalnika-samarskogo-gu-mvd

[2] https://medicalxpress.com/news/2022-10-methanol-laced-dozens-peru.html

[3] https://newsinfo.inquirer.net/1206933/lambanog-death-toll-reaches-23

[4] https://www.legislation.gov.uk/ukdsi/2018/9780111168479/contents

[5]The Package Travel and Linked Travel Arrangements Regulations 2018

[6] https://www.legislation.gov.uk/uksi/1992/3288/contents

[7] https://www.legislation.gov.uk/ukpga/1982/29/section/4

[8] https://www.legislation.gov.uk/ukdsi/2018/9780111168479/regulation/15

[9] https://www.bailii.org/ew/cases/EWHC/Ch/2020/2944.html

[10] https://knyvet.bailii.org/ew/cases/EWCA/Civ/2014/1538.html

[11] https://www.bailii.org/uk/cases/UKSC/2023/48.html

[12] https://www.bailii.org/ew/cases/EWCA/Civ/2010/372.html

[13] https://www.bailii.org/ew/cases/EWCA/Civ/2017/11.html

[14] https://www.supremecourt.uk/cases/docs/uksc-2018-0102-judgment-1.pdf

[15] https://www.bailii.org/uk/cases/UKSC/2021/45.html

[16] https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32007R0864:EN:HTML

[17] https://knyvet.bailii.org/ew/cases/EWHC/QB/2020/2976.html