Food poisoning on holiday – How concerned should the travel industry be?

3rd May 2017 by Professor David Grant

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A recent report in the Insurance Times quotes a Spanish lawyer issuing a dire warning about fraudulent food poisoning claims by British holidaymakers and saying that prices will increase or all-inclusive holidays will no longer be offered.

This is not news; that well known newspaper of record, the Mail on Sunday reported on this phenomenon as long ago as last September and it has been a concern of ABTA for some time. As in other fields it is claims management companies who are being blamed for the increase in claims. And if you undertake a quick Google search of ‘food poisoning holiday claims’ it throws up several claimant solicitors’ firms on the front page touting for business and reciting a frightening list of diseases that could form the basis of a claim, including salmonella, norovirus, campylobacter, E. Coli, shigella, cryptosporidium and legionnaires’ disease. All in all the image is of an industry under siege from dishonest claimants, unscrupulous claims management companies and venal lawyers.

Undoubtedly there are false claims (as well as genuine ones) but how concerned should the travel industry be? Although a recent case, Wood v TUI, resulted in a successful claim by a holidaymaker, the important message to be taken from the case is that food poisoning cases are difficult to prove. As Claire Mulligan points out in her recent article, ‘Clarification of Tour Operator Liability for Sickness Claims. Wood and Wood v TUI Travel Plc’ TLQ [2017] 40, the burden of proof lies on the claimant to show that the illness was caused by the food poisoning and this is not easy to do. And not all holiday illnesses are caused by food. In the Wood case the claimants had the advantage that liability was for their food poisoning ws strict, no fault had to be proved, but in other cases, such as norovirus, the claimant must also prove negligence by the defendant. Anyone who has been on a cruise ship recently knows the lengths to which cruise lines now go to keep the ships clean and healthy so proving negligence in a case of norovirus would be an uphill task for even the most determined claimant.

It is also the case that travel companies, no doubt encouraged by their insurance companies, will develop defensive strategies to protect themselves against false claims. This happened when local authorities found themselves faced with an upturn in ‘trip and fall’ cases and I have no doubt that the travel industry, in consultation with their lawyers, will respond in much the same way.

The furore over false claims however should not be used as an excuse to limit the rights of genuine claimants. In the Mail on Sunday article, Conservative MP Craig Tracey was quoted as saying that solicitors’ fees should be capped in such cases. But if the cap is set too low then solicitors will not take such cases and in practical terms this would leave claimants without redress – and what would then happen to hygiene standards? How would travel companies be brought to account in such circumstances?

It may be a counsel of perfection but surely the remedy to false claims, cowboy claims companies and rising costs is to improve standards – thus keeping consumers, travel companies and insurance companies happy by eliminating the claims at source.

David Grant

Editor in Chief

david.grant@tlq.travel

About the Author

David Grant is Professor Emeritus at Northumbria University and was Visiting Professor of Travel Law at Leeds Metropolitan University.

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