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PI Practitioner, September 2020

22/09/20. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB)

The Claimant purchased an all-inclusive holiday in Turkey from the Defendant. He had a hamburger at Birmingham Airport at a well-known burger chain, but thereafter he had all his meals at the hotel in Turkey. He alleged that he had contracted gastric illness as a result of the consumption of contaminated food or fluid at his hotel whilst on holiday in Turkey in August 2014. The Claimant was taken to hospital and stool samples were taken. The Claimant's claim for breach of contract against the holiday provided was dismissed by Her Honour Judge Truman. The Claimant was granted permission to appeal by Pepperall J, and his appeal was later heard by Martin Spencer J. The central question concerned the courts' ability to reject expert's evidence which is uncontroverted.

The Claimant relied upon a report from Dr Linzi Thomas, which opined that the Claimant's illness had been caused by the food, drink and fluids consumed at the hotel. The Claimant was also granted permission to rely on a report from Professor Pennington, consultant microbiologist. The Defendant was granted permission to rely on a gastroenterologist, but failed to serve this report in time and later applied unsuccessfully for relief from sanctions.

At trial, HHJ Truman accepted the evidence of the Claimant and his wife in relation to what they ate and when the Claimant fell ill. The Claimant relied upon Dr Thomas' report for condition and prognosis, and on Professor Pennington's report and Part 35 answers for causation. No application was made for Professor Pennington to attend to be cross-examined. His evidence was therefore uncontroverted.

HHJ Truman was critical of Professor Pennington's report and Part 35 answers, and found that the medical evidence had not established that, following Wood v TUI Travel Plc [2018] QB 927, it was more likely than not that the Claimant's illness was caused by ingesting contaminated food or drink supplied by the hotel.

Martin Spencer J found that Judge Truman had not, as suggested by the Claimant, raised the threshold for proving causation, but had merely applied the dictum of Wood v TUI. However, Martin Spencer J considered that Burnett LJ and Sir Brian Leveson P "had in mind, when they stated their dicta, cases where the Claimant was seeking to prove his case from the mere fact of illness, not cases where, as here, stool samples gave evidence of the potential pathogens at work and expert evidence gave an opinion as to which of those pathogens was the actual culprit, and the most likely source of infection". He considered that there is a distinction between the quantitative case and a qualitative case, such as the Claimant's. "In a qualitative case such as the present, where an expert says that the great majority of cases of food-borne infective gastroenteritis do not occur in outbreaks, the absence of evidence of large numbers of other guests similarly affected may be of less significance whilst, in a quantitative case, such absence of evidence will be fatal to the case's success."

As to when a court may reject an uncontroverted expert report, Martin Spencer J held that the court would always be entitled to reject a report, even if uncontroverted, which is a bare ipse dixit. For example, if Professor Penning's report had simply stated "In my opinion, on the balance of probabilities [the claimant] acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel."

However, where a report is uncontroverted, a court is not entitled to subject it "to the same kind of analysis and critique as if it was evaluating a controverted or contested report, where it had to decide the weight of the report in order to decide whether it was to be preferred to other, controverting evidence such as an expert on the other side or competing factual evidence." That role of the court falls away when a report is uncontroverted. All the court needs to determine is "whether the report fulfils certain minimum standards which any expert report must satisfy if it is to be accepted at all." To meet the minimum standard, the report must substantially comply with paragraph 3 of Practice Direction 35. The Practice Direction did not require that the summary of conclusions of the report included the reasons for those conclusions. Whilst the failure to set out reasoning might diminish the weight to be attached to the report, it is not required by the law. The question of weight, however, only arises when the report is controverted.

Professor Pennington's report did meet the minimum standard required and was not bare ipse dixit. He had gone a long way towards substantiating his opinion by identifying the pathogen which in his opinion was causative of the Claimant's illness, he considered other potential causes, the incubation period and the meals that the Claimant had. Thus, HHJ Truman had not been entitled to reject the report. Her criticism of the report went to an issue with which the judge was not concerned, namely the weight to be given to the report. Accordingly, the appeal was allowed and judgment was entered for the Claimant.

Olivia Rosenstrom
Temple Garden Chambers

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