THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED

There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB)  will have in relation to food poisoning cases and more generally. That case related specifically to the treatment of expert evidence in a holiday food poisoning case.  I am grateful to barrister Dominique Smith for sending me a copy of the decision of Her Honour Judge Karen Walden-Smith in  Turpin -v- TUI UK Limited (Cambridge County Court 17th August 2020).  This is the first case I know of where there Griffiths case has been considered by the courts.  It is another case where a finding in favour of the defendants in a food poisoning case was overturned on appeal. A copy of the judgment is available here.  Turpin

 

THE CASE

The claimants both suffered from food poisoning whilst on holiday. They brought an action for damages against the travel company. That action was dismissed at trial before a District Judge.  The claimants appealed. That appeal was successful.

THE JUDGMENT

The judge set out the background facts and expert evidence in  detail.*

This appeal is brought on four grounds:
  • That the Judge was wrong to require the medical evidence of Dr Thomas to establish that the food was contaminated by flies;
  • That the Judge was wrong to require the Appellants to have specifically alleged that the food was contaminated by flies;
  • That the Judge was wrong to accept that the document from the Kos Medical Centre was contemporaneous and, as such, place any or any significant weight on its content;
  • That the Judge was wrong to find that Mr and Mrs Turpin had failed to establish causation between their illness and the foot provided by the hotel.
  1. Ground 1, the flies and contemporaneous documentation.
In paragraph 6 of his judgment, DDJ Staves holds that “the expert does not properly or appropriately deal with the issue of causation or identify the actual cause of the Claimant’s illness.” In doing so the Judge was criticising the contents of Dr Thomas’ Report for failing to establish the causal link between the food served and the illness.   He also found that the allegation of flies in the restaurant did not provide either adequate or cogent evidence that was the cause of contamination or that there was any contamination.   “Even if the issue of flies were an issue in the hotel the quality of the expert report… does not prove, in my opinion, causation.”
  1. I do not accept that the Judge was in fact requiring the expert to establish food contamination by flies. While the judgment lacked detail, it appears that what the Judge was finding is that as a consequence of some issues – in particular  the change of date from 6 June 2017, in the TripAdvisor review, to 5 June 2017 in the information given to Dr Thomas and in his statement to the court, and the alleged failure to deal with the query about the audit, he was not satisfied about her evidence.
  2. In my judgment, the Learned Judge erred in his conclusions on this matter. The change of date from 6 June to 5 June as the date of the onset of the illness neither undermined the doctors’ conclusions that this was a bacterial rather than a viral infection, nor did it undermine the credibility of Mr Turpin.
  3. In Dr Thomas’ report she states (on the information provided by Mr Turpin) that he came unwell “on or around 5 June 2017. That encompasses 6 June 2017 if that were the correct date.   In his statement, Mr Turpin corrects what he had told Dr Thomas saying that while her report recorded that he was suffering from diarrhoea and vomiting from the morning of 5 June 2017 he thought that was incorrect as he started with suffering with diarrhoea to begin with and then vomiting after two days while he had been suffering stomach cramps.
  4. That difference in account does not make any difference to the diagnosis that this was not a viral infection but that the severity of the symptoms was consistent with a bacterial infection. The Judge’s disregard of Dr Thomas’ report such that he placed no reliance upon it, was not justified on the basis of what was before him.   His decision to do so runs counter to the most recent decision of the Queen’s Bench division in Griffiths v TUI.
  5. Dr Thomas had provided an opinion as to what she considered the likely cause of the illness. She pointed out that Mrs Turpin had also become ill had roughly the same time, pointing towards a common source of infection.  Further the nature in which the illness had affected Mr Turpin was consistent with a bacterial rather than a viral infection – namely diarrhoea followed by vomiting or diarrhoea and vomiting together.  With a viral infection it would be expected for there to be projective vomiting and for the symptoms to be less severe.
  6. Dr Thomas did, contrary to what has been suggested on behalf of TUI, answer the question raised by way of a part 35 request by TUI about the evidence from the Kos medicare centre that this was a viral infection, by setting out that the longevity of the illness was inconsistent with a viral infection and that the symptoms presented on 8 June 2017 would not provide the doctor on that occasion with sufficient information to be able to diagnose that this was a viral infection. Further, she pointed out that the treating doctor had in fact prescribed antibiotics which is inconsistent with having determined it was viral.
  7. Dr Thomas was also referred to the note drafted in May 2019 and asked whether, if accepted that Mr Turpin had said “very much improved” on the day after he visited the Kos Medicare, that was consistent with a viral infection. Again, she did answer the question, and it was not correct to characterise her answer as failing to meet the question.   Her answer was that, had it been said that he was “very much improved”, that did not equate to recovery.  
  8. The other evidence available to the court both from Mr and Mrs Turpin, together with the evidence of Mr Spowage, all established that the illness continued beyond 9 June 2017. A longer illness is consistent with a bacterial rather than a viral infection.
  9. Dr Thomas was not asked in the course of the part 35 questions about the audit. While Mr Candlin on behalf of TUI is correct to say that it is not for the defendant in a case to make the case for the claimant, it is not appropriate to criticise an expert for failing to comment upon a piece of evidence which they have not been asked to comment.  The audit is important evidence in this case and is something that the Judge was required to give due weight to.       Indeed, in Wood v TUI Burnett LJ set out that if the evidence at trial shows that the hotel was applying standards of hygiene and monitoring of their food which were designed to minimise the chances that food was dangerous “would inevitably lead to some caution before attributing illness to contaminated food in the absence of clear evidence to the contrary.”  However, in this case, the evidence of the audit is not as powerful as TUI seek to suggest or the Judge found.    It was a snapshot of how things were on a particular day (the 6 June 2017) from an accompanied visit.  There is no evidence to say whether the inspection is announced in advance to the hotel, but that fact it was accompanied suggests it may well have been.   There was no-one to cross examine with respect to the audit and the manner in which it was undertaken and, while the DDJ appreciated that Miss Theodoiadou had not been called for reasons of expediency and cost and that he ought to consider the evidence in light of its limitations, his judgment does not reveal that he did in fact acknowledged that there were limitations with the evidence and that the claimants were handicapped by not being able to cross-examine.   The audit was undertaken either on the day that Mr Turpin fell ill or the day after.    That inevitably means that it was undertaken shortly after the infection occurred and could not be a complete answer to the allegation that the food eaten by Mr Turpin and his wife had been the cause of their illnesses.  The Judge needed to also take into account the live evidence of Mr and Mrs Turpin and Mr Spowage and the evidence of reviews from others contained on TripAdvisor which supported their complaints.
  10. Dr Thomas was not, in my judgment, being criticised for failing to say that it was the flies which were the vector for contamination. Rather she was being criticised for failing to provide evidence that the food was contaminated so as to satisfy the court.      The Judge found that the “expert does not properly or appropriately deal with the issue of causation or identify the actual cause of the Claimant’s illness”. That conclusion is not supported by the evidence of Dr Thomas which properly considers and discounts other potential causes of both Mr and Mrs Turpin’s illness, and concludes that “it was a breakdown in the general and food hygiene process within the resort such that the food, drink or fluids which were consumed, or contact with contaminated surfaces which caused their illnesses.”  The Judge erred in not giving the evidence of Dr Thomas the weight it deserved.
  11. The criticism the Judge makes of the expert’s report with respect to key dates is not justified. If the illness commenced on 5 June, as per Mr Turpin’s witness statement, or on 6 June, as per his TripAdvisor review, is not such that could properly lead to his evidence being impugned as not being credible and it does not undermine the expert’s conclusions.  Dr Thomas had referred to the illness commencing on or about 5 June 2017.
  12. The nature of the illness was consistent with a bacterial infection (diarrhoea and then vomiting rather than violent projective vomiting as its commencement), the length of the illness was consistent with a bacterial infection (in accordance with the evidence of Mr and Mrs Turpin and Mr Spowage) and the fact that the treating doctor provided antibiotics (in accordance with the medical notes) all point towards her conclusion being the correct one. The only evidence against that is the note from the treating doctor, made some 23 months after the event, that it was a viral infection – contrary to his own treatment – and that there was a telephone call the next day in which he said he was very much improved.   The Judge erred in finding that the medical note was contemporaneous and placed too much weight upon the doctor having no good reason for wrongly recording that there was telephone conversation the next day.  Mr Turpin was clear that there was no telephone conversation and that he did not recall it.  That evidence was given live by Mr Turpin and subjected to cross examination.   The claimants were again handicapped by not having anyone to cross examine about the doctor’s note and there was nothing in the evidence to suggest where the information had been obtained that there had been a telephone conversation on 9 June and, contrary to what was said by the Judge, there was no contemporaneous note..
  13. Dr Thomas properly came to a conclusion that in her opinion, on the balance of probabilities, the breakdown in the general and food hygiene processes within the resort or contact with contaminated surfaces caused their illnesses. Mr Candlin contends that because Dr Thomas has left open the possibility that the cause of the illness was contact with contaminated surfaces within the resort the claimants failed to establish causation for the purpose of this being a case brought on there being a breach of the Consumer Rights Act 2015 rather than a case framed in negligence.
  14. However, while Mr Candlin contends that this creates a “gaping hole” in the claimants’ case, this was not the basis upon which the decision of the Judge was reached and there is no cross-appeal. Further, such an argument ignores the entirety of the evidence of Dr Thomas and the existence of the further evidence before the Judge beyond that of the expert.   The inevitable conclusion of that evidence together with the evidence of the expert is that the cause of the illnesses was contaminated food.
  15. In all the circumstances, I find that ground 1 of the appeal is made out. I do not find that the Judge was requiring the medical evidence of Dr Thomas to establish that the food was contaminated by flies but the Judge did fail to properly appreciate that the report did establish causation by considering possible causes and excluding them, and concluding that it was the food or surfaces and that the other evidence of live witnesses and contemporaneous documentation, established it was the food provided by the hotel which was the cause.
 
  1. Ground 2, the Kos Medical report
The Judge clearly erred in accepting that the medical report from the Kos Medical Centre was written contemporaneous to the events in June 2017.  It is clearly dated 16 May 2019, although the representatives of TUI had referred to it as a document dated 8 June 2017.   It is now accepted on behalf of TUI that it was not a contemporaneous document but it is said that it was the same doctor who saw Mr Turpin on 8 June 2017 and who wrote the note on 16 May 2019 and that Mr Turpin only provided a “weak rebuttal” to there having been a conversation on 9 June 2017.
  1. To say that Mr Turpin only gave a weak rebuttal mischaracterises the evidence. He clearly stated that he knew about the letter saying there had been a telephone conversation but denied it and then later repeated that he did not recall any conversation.   That is a clear rebuttal in the face of the written document. 
  2. The fact that it is the same doctor does not assist TUI as, without any documentation to set out where this information came from, it is impossible to say where the doctor obtained his information. The court knows that he is not infallible, having written down that this was a viral infection while prescribing antibiotics that indicate that he actually considered it to be a bacterial infection,, Further, while there is no explicit evidence before the court notice can be taken of the fact that a doctor who works in a medical centre which obtains referrals from large hotel complexes is likely to see a large number of people complaining of gastro issues over a two year period.   There is no reason why the doctor would particularly remember this case and there is no note of a telephone conversation in the contemporaneous medical notes available.
  3. The Judge erred in considering this to be a contemporaneous note, placing too much weight on the doctor having no reason to record the telephone conversation incorrectly – without considering that he may be mistaken, and giving little or no weight to the evidence of the live witnesses.
  4. In the circumstances, therefore, Ground 2 is also made out. Reading the judgment as a whole, this is one of the crucial matters that the Judge relied upon in finding against the claimants.  He erred in doing so.
  5. Ground 3, causation
I have already dealt with this matter in some detail above under Ground 1.  The claimants had established causation between their illness and the food provided by the hotel.  Dr Thomas had discounted the other potential causes of the illness save for contaminated surfaces and that potential cause was discounted by the evidence before the court.   The audit itself, while an important piece of evidence that needed to be taken into account, was given too much weight when the claimants were not able to cross examine with respect to it and there was contemporaneous evidence which rebutted it.   The TripAdvisor reviews referring to the number of flies present around the food were responded to by the hotel acknowledging that there had been a problem and that it had subsequently been dealt with, and that evidence was further supported by the claimants and Mr Spowage, who all gave live evidence, and the reviews themselves.
Conclusion
  1. For the reasons already set out in detail above, I find that the Judge erred in dismissing the claim and I allow this appeal with Judgment to be entered against TUI.
  2. In light of this judgment, the parties should seek to agree a form of order which can be given by the court on handing down Judgment. If there are any issues with respect to the appropriate order then there can be a short hearing to deal with those matters on the handing down, otherwise the handing down can be without attendance.   Further if the parties wish to make any further submissions with respect to Griffiths v TUI then they may do so in writing by no later than 12 noon on Thursday 27 August.”

* The numbering here is different to the numbering in the judgment.