Travel companies will be interested to read the recent Court of Appeal case of Wood & Wood V Tui Travel plc trading as First Choice (“First Choice”) (2017) where the court found that Mr & Mrs Woods could recover damages for acute gastroenteritis suffered by them whilst on holiday.
Mr & Mrs Wood booked a two week holiday with First Choice in the Dominican Republic. First Choice agreed to provide or arrange return flights, transfers to the hotel, accommodation together with the board element described as “all-inclusive”. That meant that all food and drink would be provided by the hotel without the Woods being responsible for paying anything for it locally.
The Woods departed from Gatwick airport on 30 March 2011. On the evening of 2 April 2011 Mr Wood became unwell. He was admitted to hospital 3 days later and discharged on 9 April 2011. He had suffered a bacterial infection of some sort. Mrs Wood became ill on 11 April 2011.
The judge accepted that the Woods had consumed only food and drink provided by the hotel and that prior to becoming ill they ate consistently from the hotel buffet save for one meal which they ordered from a menu.
The Woods brought a claim which was advanced principally under the Package, Travel, Package Holidays & Package Tours Regulations 1992 No. 3288 (“the Regulations”) which govern the circumstances in which a representation in a brochure is binding on a tour operator & requirements of information that must be provided to a customer.
The Regulations provide a wide range of protections to holiday makers. Liability for injury or damage resulting from the improper performance of the contract arises when there is fault of some sort on the part of the provider of the obligation in question.
The judge heard detailed evidence of the systems in place at the hotel and was provided with much contemporary documentation which demonstrated the care taken to comply with high standards of food hygiene. The Woods failed to establish that the hotel was at fault in the manner required by the Regulations – there is little doubt that food might be contaminated without fault on the part of a restaurant or hotel.
However, Mr & Mrs Woods also sought, in the alternative, to rely upon the implied condition found in section 4(2) of the Supply of Goods & Services Act 1982 (“the Act”) which provides that where property in goods is transferred pursuant to a contract in the course of business, the goods must be of “satisfactory quality”.
There were no terms or conditions in the contract which concerned themselves with the question of property in the food and drink provided, and when (or whether) it passed to the customers. The Woods contended that First Choice agreed to supply them with food and drink and agreed that property in the food and drink would transfer to them before or when it was consumed.
At first instance the judge concluded that the supply of food and drink to the Woods constituted the supply of goods for the purpose of the Act. Despite First Choice’s contentions to the contrary, he concluded that a contract could be both a contract for the supply of services and goods at the same time – the provision of food and drink was the supply of goods, even though most of what First Choice contracted to provide were services.
Consequently, the judge decided the Woods’ illness was caused by contaminated food or drink that they were given in the hotel. It was not of “satisfactory quality” for the purposes of section 4(2) because it was contaminated. He therefore awarded Mr Wood damages which included £16,500 for pain, suffering and loss of amenity and Mrs Wood £7,500.
First Choice appealed against the finding of liability under the Act on the basis that the contract did not contemplate that property in the food and drink would be transferred to the Woods.
Upon appeal, First Choice accepted that a single contract could be both a contract for the supply of goods and services at the same time. Instead, it concentrated its submissions on the fact that there was no contract by which First Choice could agree to transfer property in food and drink to the Woods – all that First Choice did was to provide a licence to its all-inclusive customers to consume food and drink with no question of their ever becoming the owners of what was on their plates or in their glasses. When consumed by customers the food/drink was destroyed.
The Woods, on the other hand, submitted that First Choice’s characterisation of the food remaining the property of the hotel at all times until it was placed into the mouths of the customers, at which point it was destroyed was unreal.
The court of appeal found that in the absence of any express agreement to the contrary, when customers order a meal/drink property in the meal/drink transfers to them when it is served or, if available at a buffet service, when the customer serves himself. That is so whether the transaction has no other components or provides other services, for example accommodation.
Having regard to the above, the court of appeal considered the judge at first instance had been correct. The contract was a contract both for the supply of services and the supply of goods. The food and drink supplied to the Woods at the hotel were goods in which it was agreed that property would be transferred. Those goods were not of satisfactory quality because the food in question was contaminated. Accordingly, the appeal was dismissed.
Whilst the court did find against First Choice in this particular case, it should be remembered that the question of whether food or drink is of satisfactory quality will be a matter of fact to be determined in each case. Here, the Woods’ case was supported by expert evidence from medical advisers. However, the court stressed that it considered it was likely to remain difficult to prove that an illness is a consequence of food or drink which was not of satisfactory quality without cogent evidence that others have been similarly affected.
For more information about the issues in this article or to find out more about how the Leisure and Hospitality sector can help you please contact the team on 0118 952 7711 or email leisure&[email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.