The Dekagram 11th April 2023

• Published date: 25 April 2023
• Subject Matter: Media, Telecoms, IT, Entertainment, Food, Drugs, Healthcare, Life Sciences, Food and Drugs Law, Hotels & Hospitality
• Law Firm: Deka Chambers
• Author: Ms Sarah Prager

We trust our readers enjoyed their long weekend and that they have returned to the fray, like us, refreshed and ready for anything. Just before the break judgment was handed down in a gastric claim which brought into focus a number of issues which have troubled courts and litigators alike for some time; we've distilled for you a selection of them in the case study for this week's Dekagram. But that's not all. As promised, this week's issue carries a competition - following the roaring success of the merger between 1CL and 9GC, the 1CL Official Cocktail, the French 75, has been retired from its role, and we need to find a new cocktail or mocktail that encapsulates the spirit of the new set. The reader who nominates the winning Dektail will of course receive a small prize and the honour of being toasted at chambers events hereinafter.

Evidential Issues in Food Poisoning Claims: Rollo v Jet2 Holidays Limited, unreported, 3^rd April 2023

It's hard to believe that it's been over six years since Mr and Mrs Wood succeeded in their claim in the Court of Appeal (in Wood v TUI Travel Plc [2018] 2 WLR 1051), at which time Sir Brian Leveson uttered the now immortal words:

"Neither do I accept the floodgates argument which Mr Aldous advanced. I agree that it will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded."

The status of these obiter dicta has been endlessly debated ever since, with some litigators taking them as an evidential milestone and others as a throwaway remark, but it is certainly true that following Wood the floodgates did indeed open, and to such an extent that the legislature swiftly moved to stem the incoming tide of diarrhoea and vomiting by way of fixed costs and a new pre-action protocol dealing specifically with gastric illness claims valued at less than '25,000.

So where do we now stand?

As foreshadowed by Sir B, where an outbreak of illness is shown to have occurred, it will often be difficult (but not impossible) for a defendant to defend a group claim. The notable exception, of course, is in respect of viral illness, since in any case not involving acquisition via food or drink the claimant must prove fault on the part of the hotelier, and it is notoriously difficult to prevent viruses from spreading in closed environments such as hotels or (even worse) cruise ships.

Similarly, where the claimant can show that (s)he fell ill as a result of the acquisition of an identified pathogen, so long as the incubation period fits the holiday dates the claim is likely to succeed. Hence, where a claimant is shown to have been infected with salmonella, did not...