Fraudulent holiday sickness claims are in the media spotlight again. In the last month or so, we have seen the Government call for evidence from experts to support a clamp down on sickness scams, the successful private prosecution of a British couple guilty of fabricating bouts of gastric illness, and other cases whose sensationalist headlines almost write themselves – for example, the dismissal of a former UK Beauty Queen’s claim following the revelation of social media photos demonstrating the Claimant, who had alleged she was crippled by diarrhoea, “wearing a tight white outfit exposing her midriff and hanging out of the open-top bus with two thumbs in the air.”
It is estimated that since 2013 there has been a five-fold increase in British tourists seeking compensation for being struck down by food poisoning or other illnesses while abroad, while the number of sicknesses reported to resorts has remained stable.
This article looks at the legal background to holiday sickness claims, the issues that practitioners will encounter when fighting suspected fraudulent claims and, finally, how the Government should focus its energies in order truly to clamp down on fraudulent claims.
The Legal Background
Claims arising out of alleged illnesses contracted on holiday are usually brought in reliance on the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Package Travel Regulations”).
A “package” is defined at Regulation 2 as “the pre-arranged combination of at least two of…” transport, accommodation, or “other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package”.
Regulation 15(1) sets out the liability of a tour operator for the proper performance of the contract: “[t]he other party to the contract [other than the consumer] is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.” Regulation 15(2) goes on to provide a number of limited exceptions to the operator’s liability, including where there is fault on the part of the consumer, or where the damage is caused by failures due to unforeseeable or unavoidable circumstances beyond the control of the operator.
However, it is not only the Package Travel Regulations which may assist a Claimant. Negligence will be pleaded concurrently. Additionally, in the particular context of holiday sickness claims, the provision of food and drink will likely be argued to constitute a contract for the transfer of goods within the meaning of section 4 of the Supply of Goods and Services Act 1982.
Earlier this year, the Court of Appeal handed down judgment in Wood v TUI Travel plc t/a First Choice  EWCA Civ 11, which resolved a controversy as to whether the provision of contaminated food and drink on a package holiday could give rise to strict liability on the part of a tour operator.
In Wood, the Claimants purchased an all-inclusive package holiday from TUI Travel. As part of the package, they dined at the Hotel’s buffet. The Claimants alleged that they contracted food poisoning from food provided at the buffet. They pleaded breach of the Package Travel Regulations, negligence, and breach of contract, relying on the Supply of Goods and Services Act 1982.
The Trial Judge held that the Hotel had a sufficient standard of hygiene systems and procedures, and that it had provided accommodation services with reasonable care and skill. The claims brought under the Package Travel Regulations and in negligence were therefore dismissed.
However, the Judge found that the food and drink provided to the Claimants was indeed contaminated. The Judge further held that the provision of food amounted to a contract for the provision of goods for the purposes of the 1982 Act. It followed that the contaminated food was in breach of the condition implied by section 4(2) that goods be “of satisfactory quality”.
The Court of Appeal upheld this reasoning, dismissing TUI Travel’s argument on appeal that their contract with the Claimants only included a licence to use the buffet, and that there was no contract for the provision of goods so far as food and drink were concerned. Following a detailed analysis, the Court concluded that there had been a transfer in the title of goods (the food and drink), and therefore a contract for the provision of goods. Burnett LJ, giving the leading judgment, held as follows:
“In the absence of any express agreement to the contrary, when customers order a meal, property in the meal passes to them when it is served. The same is true of a drink served by the establishment. … It is unreal to suppose, for example, that the pizza placed in front of a customer remains the property of the hotel or restaurant any more than the content of a glass of wine or lemonade could do so after it was served to a customer… When the customer helps himself to the meal or pours himself a drink property in the fare becomes that of the customer.”
The Court of Appeal’s conclusion removed a potentially useful legal argument from the armoury of tour operators. Burnett LJ sought to reassure tour operators that this conclusion should not, in reality, open the floodgates unduly and emphasised the importance of causation:
“Proving that an episode of [illness] 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.”
Practical Issues with Fraudulent Claims
In light of the Court of Appeal’s decision, emphasis has been placed firmly on questions of fact: the Court will first have to determine whether, as a matter of fact, the Claimant(s) genuinely suffered a gastric illness and, secondly, whether that illness was caused by any contamination of the food or drink consumed. Whilst Wood was not a fraudulent claim, this has an impact on the area of fraudulent (or allegedly fraudulent) claims.
Despite Burnett LJ’s warning against inferences, there is a fear that in the context of claims that are estimated to be worth £2,100 on average, Judges may be willing to draw inferences where credible witness evidence is given by the Claimant(s) and their family members.
Whilst the Claimant(s) and their family will be able to give witness evidence as to their alleged illness, Defendants will usually struggle to obtain high quality evidence from witnesses who work at the Hotel, and who have likely looked after hundreds or thousands of guests in the time that has passed since the Claimant’s visit. That is not to mention the cost of trying to obtain witness evidence from individuals living abroad.
Commonly, Defendants will rely on evidence gathered from social media. Sun-drenched Instagram photos and boastful tweets can help to undermine a Claimant’s false account of having been cooped up in their room throughout the holiday. Tweets that boasted of “sun, fun and laughter” led to the conviction of Deborah Briton and Paul Roberts, a British couple, who were on 13th October 2017 sentenced to 9 and 15 months in jail respectively after a private prosecution brought by Thomas Cook.
However, fraudsters are likely to become more sophisticated. At the very least, privacy settings on social media accounts may be adjusted, so that otherwise-incriminating photos are kept hidden from the public. Photos and tweets may also be deleted when a claim is being advanced, and especially cunning fraudsters may elect not to upload any photos or incriminating posts in the first place.
To combat a greater degree of sophistication, Defendants will have to be more careful about gathering appropriate contemporary documentary evidence from the resorts in question: is there any record of complaints being made to the Hotel at the time? Does the Hotel have a record of the additional expenses incurred by the Claimants? If, for example, a Claimant has alleged they were unable to leave their room due to food poisoning, but records show that they were buying drinks at the poolside bar every day, this may be compelling evidence.
There are, sadly, no easy answers to the problems posed by fraudulent claims. However, a thorough review of all contemporary evidence – including social media and Hotel records – is a definite first step to mounting a proper defence.
On 13th October 2017, the Government announced its call for evidence from experts to “give Ministers a greater insight into the reported rise in suspected false insurance claims for gastric illnesses like food poisoning being brought by British holidaymakers.”
After the announcement of the call for evidence, Christina Blacklaws, the Law Society’s Vice-President, commented that “cold calling should be banned and claims companies which seek to profit from bogus or exaggerated claims must be brought to task”. Her approach is to be praised. Whilst some civil claims can be fought on the basis of the sorts of evidence referred to above, others cannot.
Cold-calling and claims companies may encourage Claimants that they will get away with lies, and facilitate claims that would otherwise not have been brought. If these companies can successfully be targeted, we will be one step closer to stemming the rising tide of fraudulent holiday sickness claims.
Luka Krsljanin, Barrister at 2 Temple Gardens
 See fn. 1 above
 EU Member States are required to transpose into their national laws the new Package Travel Directive (2015/2302/EU) by 1st January 2018.
 There was no suggestion that the claims were fraudulent.
 Para 27 of the judgment
 Para 29 of the judgment
 See fn. 1 above
 See fn. 1 above