E-mail this to a friend
Print this
Food Poisoning Holiday Claims
28 May 2008
Unfortunately a number of people go down with food poisoning whilst on holiday. Sometimes this is just due to a different type of food being encountered for the first time. The symptoms might be down to hot weather. Sometimes however it is down to poor hygiene standards in a hotel or resort.
If it can be shown that the food poisoning was caused by poor standards, it is possible to bring a claim in the British courts even if the problem arose abroad. This is because the Package Travel Regulations allow holidaymakers to bring a claim against their tour operator. The tour operator is liable for improper performance of the holiday contract on the part of its supplier (the hotel/resort).
In considering whether or not one can pursue a case involving food poisoning, it is of vital importance that the illness from which the claimant is alleged to have suffered, is identified at an early stage. One would also expect other people, staying at the same hotel at the same time, to be similarly affected.
It is vital to consider with a potential case, where the affected person had eaten in the weeks prior to the onset of symptoms and what they had eaten. For example, in cases involving holidaymakers on an all-inclusive holiday, they are likely to have eaten largely at the hotel; they should be asked whether they ever purchased an ice cream at the beach or took lunch outside the hotel.
Proof of the type of illness someone has suffered from is very important. This is because it will need to be demonstrated, that the particular type if illness being suffered from is one that results from food poisoning. If the cause of the illness can only ever be poor food hygiene then that is very helpful to a potential claim. If food poisoning is just one of a large number of potential causes, the claim is weaker.
A recent case was that of Kempson v First Choice Holidays. The Kempson family took a holiday with the defendant tour operator in Corfu for 14 nights on a half board basis in summer 2003. Whilst on holiday Mrs Kempson and her 6 year old daughter contracted gastroenteritis caused by salmonella poisoning.
The first issue was, had they became infected with salmonella whilst on holiday? This was easily answered as there had been a stool sample tested which proved positive for salmonella and indeed a strain of salmonella associated with Greece.
The second issue was whether the illness has been contracted from food in the hotel? The family gave evidence that they had eaten out of the hotel only once during the course of the holiday. Mrs Kempson and her daughter emphasized that they had eaten scrambled eggs every day for breakfast at the hotel and had often eaten chicken and egg based dishes at other times with their hotel meals. Salmonella can be caused as a result of eating under cooked eggs.
Although the evidence showed that the hotel was generally well run and preparation and service of food was undertaken with reasonable care, if the claimants had contracted salmonella from scrambled eggs, then this in itself was indicative that the egg must have been inadequately cooked. The court said that the food supplied on an all inclusive holiday must be of satisfactory quality. If it poisons the consumer, by definition, it cannot have been of satisfactory quality. Therefore the supplier is liable. There is no need to go into detail about whether the supplier was actually at fault.
It has been argued by defendants that food can be of satisfactory quality even if it causes illness. For example, if a consumer takes a holiday to outer Mongolia and is provided with fermented yak milk, which makes them ill but which would not make a Mongol ill, the yak milk can be said to be not of perfectly satisfactory quality. However, in the vase of Kempson the Judge found that the tour operator’s obligation to provide food as part of the package holiday was strict. The tour operator was liable for the provision of unsatisfactory food, notwithstanding the lack of fault on the part of either the tour operator itself or the supplier. This should be of great assistance to holidaymakers who bring such claims.