Holiday claims: score draw between claimants and defendants
A couple who became ill after a holiday in Egypt have won what it is believed to be the first court victory since the appeal judges’ ruling in Wood v TUI Travel at the start of this year.
But, at the same time, Thomas Cook has claimed a victory of its own by winning a declaration that two claimants had been fundamentally dishonest in their sickness claims from a holiday in Gran Canaria.
The issue of holiday sickness claims – which has rapidly become a flashpoint between claimants and defendants – will be debated at our PI Futures conference on 19 September in Liverpool, booking for which has just opened.
In Wood, the Court of Appeal held that tour operators were strictly liable if guests became ill from consuming contaminated food at their hotel.
In the Egypt case, Lavery and Lavery v TUI UK, Bradford County Court heard that the claimant relied on the Package Holiday Regulations and the Supply of Goods and Services Act 1982.
According to a note of the ruling by barrister Ian Skeate of Barrister-Direct, who acted for the claimants, they were in good health before the holiday and ate only at the hotel.
However, they told the court that the food was not “served at the appropriate temperature”, there were no fridges, the cups and crockery were dirty, and there were “cats and flies in the eating area”.
Deputy District Judge Mahmood said he had “absolutely no hesitation in finding for the claimants” and described their evidence as “compelling”.
The judge went on: “The defendant has not produced a shred of evidence to show that good food hygiene procedures were being followed.”
He awarded Linda Lavery, who suffered from diarrhoea for 12-14 days, £2,000 in damages and Leslie Lavery, who suffered both from diarrhoea and vomiting, £3,000.
They were each awarded a further £600 each for loss of enjoyment, and an additional 10% uplift on their damages as they had beaten their part 36 offers.
Meanwhile, Thomas Cook said it had successfully argued at Liverpool County Court that claimants Julie Lavelle and her partner Michael McIntyre had been fundamentally dishonest, and had suffered no sickness at all. As a result, they were ordered to pay costs.
He said Ms Lavelle and Mr McIntyre had booked a two-week holiday for themselves and two young children at a hotel on Gran Canaria.
Sarah Hill, head of fraud and partner at BLM, which acted on behalf of Thomas Cook, said: “Given the recent surge in false holiday sickness claims, the industry has been anticipating a case of this significance for quite some time now.
“The ruling of fundamental dishonesty is a satisfying outcome, not just for Thomas Cook but for the wider travel industry, and will hopefully set a precedent for the future treatment of false claims in UK courts.
“The next steps will be to remove the financial incentives driving this activity, as we saw with the 2013 government measures relating to whiplash. A firm and proactive approach, as seen in this particular case, is necessary on the part of tour operators, hoteliers and travel agencies under threat from this particularly unsavoury type of claim.”
Chris Mottershead, UK managing director of Thomas Cook, added: “It’s not comfortable for us to be in court questioning our customers’ credibility, but the significant increase in unreported illness claims being received by the travel industry threatens holidays for all UK customers.
“This case follows an increasingly common pattern for these claims, with a previously unreported illness being raised years after the holiday, with no medical or other evidence to support the illness having occurred.”
However, Andrew McKie, co-director of Barrister Direct, said: “We think the vast majority of these cases are genuine. The rhetoric put out by the tour operators that most of them are tainted by fraud is wrong.
“We share concerns with the operators over unregulated claims management companies referring cases to law firms which should never be brought.”
Referring to plans by the Ministry of Justice to impose fixed costs on holiday claims, Mr McKie said: “We are not opposed to a sensible fixed cost regime, as opposed to a tariff scheme.
“The problem now is that costs are becoming wholly disproportionate because they are being so robustly fought. In the majority of cases, families or couples have gone on holiday, having saved up all year for it, and had it absolutely ruined by their experiences.”
Both Sarah Hill and Andrew McKie are taking part in the PI Futures session on holiday sickness claims. Click here for the details.
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