Wood v TUI - Food poisoning in the Court of Appeal - Jack Harding, 1 Chancery Lane
12/02/17. The Court of Appeal handed down judgment on 16th January 2017 in in Wood v TUI Travel PLC (2017) EWCA Civ 11, the first appellate authority on the liability of travel companies for gastric illness caused by alleged food poisoning.
The issue in the case was whether, in a claim based upon gastric illness which is alleged to have been caused by consuming food at an all-inclusive restaurant – in particular a ‘buffet’ - as part of an ordinary package holiday, it is enough for a Claimant to establish that the food was contaminated by an illness-inducing pathogen, or whether he or she must go further and show that the contamination was itself caused by the failure of the Defendant, its servants or suppliers (i.e. the foreign hotelier) to exercise reasonable skill and care.
This issue, in turn, depended upon whether or not the provision of food and drink as part of a package holiday can properly be characterized as a contract for the transfer of goods within the meaning of section 4 of the Supply of Goods and Services Act 1982 – in which case the implied contractual term is that the goods will be of ‘satisfactory quality’ – or whether provision of food is a service, in which case the implied term, pursuant to section 13, is only that reasonable skill and care will be used. The Defendant conceded that it was possible to have contracts which included both the transfer of goods and services – indeed, this is expressly envisaged by section 1(3) of the Act – but argued that in the case of food and drink served as part of an all inclusive package – the contract is for the provision of services alone
On the facts of Woods, which were unremarkable, the judge at first instance found that the hotel’s hygiene systems were of a sufficient standard that the claimant could not establish a failure to exercise reasonable skill and care. However, he held that the contamination of the food alone was enough, since the presence of a pathogen (even of unknown origin) rendered the food of unsatisfactory quality and therefore in breach of the term implied by section 4 of the 1982 Act...