KA-2024-BHM-000008 - [2025] EWHC 2093 (KB)

Discussion

In my judgment, as with the cyclospora issue, there was ample evidence to justify the judge’s conclusion on the causation issue. He did not misunderstand the evidence, or overlook key evidence, and he gave more than adequate reasons for his conclusion on this issue. The judge reviewed the evidence carefully and thoroughly.

The Appellant’s task of proving, on the balance of probabilities, that she was made ill by a pathogen ingested from food or drink at the hotel was made more complicated, though not impossible, by the judge’s finding that she had not ingested cylospora. The judge went on to consider the causation issue on the basis that the Appellant had ingested a pathogen that was not cyclospora whilst she was resident in the hotel in Mexico.

The burden of proof rested with the Appellant. It was for her to prove, on the balance of probabilities, that she had ingested a pathogen from food and drink at the hotel. It was not necessary for the Respondent to plead a specific alternative method by way the Appellant had, or might have, ingested the pathogen.

As I have said, the judge ultimately decided the case on the burden of proof, as he was bound to do.

It is true that the alternatives were necessarily speculative. As the Appellant’s own witness, Professor Threlfall, had said, unless the source can be isolated and identified at the point when infection takes place, it is not possible to be certain what the source was. However, this does not mean that the Respondent was not entitled to posit alternative sources, in support of a contention that the Appellant had failed to prove that the source was food and drink at the hotel. There were a number of potential alternative sources. In particular, as Dr Gant explained in his evidence, the Appellant could have ingested the pathogen by touching a surface that was contaminated with the pathogen and then putting her hand to her mouth. Alternatively, the Appellant could have touched a pathogen with her hand and transferred it to her mouth when wading in the sea or swimming in the swimming pool (even if she had not put her head under the water).

The judge was entitled to consider these possibilities, even though there was no direct evidence of a contaminated surface at the hotel, or any direct evidence that the Appellant, or anyone else, had touched a contaminated surface. The judge said that he would have to look to circumstantial evidence.

It is true that there was no evidence that the Appellant ingested food and drink in Mexico anywhere else apart from the hotel. Indeed, it was clear that she had not done so before she started to exhibit symptoms. This means that the possibility that the source of the pathogen was food and drink outside the hotel could be discounted. There is no suggestion in the judgment that the judge fell into the trap of thinking otherwise.

The judge considered the evidence of the microbiologists, Professor Threlfall and Dr Gant. As I have said, the Appellant’s own gastroenterology expert, Dr Bowling, accepted that expert evidence on causation was a matter for microbiologists, not gastroenterologists. The judge accepted Dr Gant's evidence that the Appellant’s illness could have come from a range of sources. Dr Gant was qualified to give evidence of this type.

The judge took into account the evidence about food and hygiene procedures at the hotel, including the 2016 Audit. In his oral submissions, Mr Pennock criticised the judge for placing insufficient weight on the results of the Audit. The weight to be placed on the Audit was a matter for the judge. He plainly considered it carefully and gave reasons for his conclusion that it was not strong evidence of a problem with poor food hygiene at the hotel. Though the Audit found a number of failings, which the judge listed, and which included a failure to maintain hot food at the right temperature, the judge concluded, as he was entitled to do, that the food audit score overall was positive, with a score of 4 out of 5 on food and drink. The score was positive on some 50 measures for food and drink. It is also worth noting, though not specifically mentioned by the judge, that Dr Gant had said that he has expertise in food microbiology and that there have been great improvements in food preparation and handling standards in hotels in countries like Mexico over the last few years. Also, in his report, Dr Gant said that the hotel scored 99.93 out of 100 in another audit, the SGS Audit, of 24 July 2017, a year after the Appellant fell ill. There were no “critical defects.”

It follows that the judge did not think that there was clear evidence of failings at the hotel in relation to food hygiene and this was a view that was open to him on the evidence.

The judge considered that it was important to note that there was no evidence of a more generalised outbreak of food-based illness at the hotel at the time of the Appellant’s illness. This was plainly a relevant consideration, even though illness could be sporadic (i.e. not part of an outbreak affecting other people as well). The judge was aware of the evidence that had been advanced on this issue. There were no records, from the hotel or the Respondent, of any complaints of diarrhoea or vomiting from any other guest. This contrasted with other months, where there were some records. The judge bore in mind that the records were not entirely reliable but nevertheless concluded that general trends could be derived from the records and that this did not support the Appellant’s case. He was fully entitled to treat the evidence in this way. The fact that the Appellant would have preferred that the judge placed a different interpretation or weight on this evidence is not a reason to allow an appeal against the judgment. It was for the judge to decide upon the weight to place upon this evidence. I should add that Dr Threlfall agreed in cross-examination that there was no positive evidence of illness at the hotel at the time of the Appellant’s visit.

The judge said that the Appellant made no complaint about food hygiene in the resort whilst she was at the hotel. This is not challenged. She accepted this in cross-examination. The judge also said that the Appellant had not made a complaint about food hygiene in the resort when she made her first complaint to the Respondent. Mr Pennock submitted that this was in error. I have been provided with a copy of the complaint, which was made by email on 17 September 2016. In the complaint, the Appellant said that she found out that she had a parasite called cyclospora which she picked up at the hotel. She said that it had been picked up at Riu Vallarta as she did not eat anywhere else in the hotel and that the Respondent is “responsible for the poor hygiene that caused this parasite.” I accept that, read in full, this is a complaint about illness resulting from poor food hygiene at the hotel. However, I do not accept that this comes anywhere close to being a reason why the judgment cannot stand. This observation by the judge comes early in the judgment, at paragraph 10, and is not in the part of the judgment which sets out the reasons why the judge has decided to dismiss the Appellant’s claim. Moreover, the exact nature of the complaint cannot have any relevance to the causation issue. The Appellant is not a microbiologist, and she was not in a position to know whether the illness was caused by a pathogen found in food or elsewhere.

Mr Pennock submitted that the judgment cannot stand because there was uncontested evidence that the Appellant and her partner had concerns about hygiene deficiencies in relation to food preparation and display at the hotel. This included that some hot food was lukewarm. It is true that the Appellant gave evidence about such concerns, and they are mentioned by the judge in its judgment. However, once again, this had little or no significance for the causation issue, because the Appellant and her partner were not food preparation specialists. There was evidence (from Professor Threlfall) that the UK Food Standards Agency says that hot food can safely stand out of temperature control for up to two hours without a heat source. In those circumstances, a guest might think that the food is lukewarm, and yet the food is perfectly safe.

Mr Pennock also submitted that the judge erred because he did not deal with evidence that there had been outbreaks of cyclospora in Mexico in 2016. However, this was dealt with conclusively by Dr Gant. He said in the joint statement that the outbreak had been in the area of Cancun, some 2,500 km from the part of Mexico which the Appellant visited. In cross-examination, Professor Threlfall accepted that there was no evidence of a general outbreak of cyclospora in Western Mexico in the vicinity of the Appellant’s hotel. This was, frankly, a point that went nowhere and so it is not surprising that the judge did not mention it in his judgment. A judge is not required to refer to every point that is raised during a trial.

A point that was emphasised by Mr Pennock particularly in his oral submissions was that, in cross-examination, Mr Guitterez had accepted that the hotel had commissioned laboratory reports of microbiology samples of food and drink, and he had provided those reports to the defence, but they had not been disclosed in the litigation. This was, Mr Pennock submitted, highly suspicious, and the obvious inference is that the reports showed evidence of contamination of food by pathogens which was being covered up. The judge overlooked this, not even mentioning it in his judgment.

I am afraid that I cannot agree that this is a good ground of appeal. I have been shown the passage in the cross-examination. Mr Guitterez was not working at the hotel at the time when the Appellant visited it. He can have had no direct knowledge of whether the hotel had obtained laboratory reports into food and drink, which would show that there were pathogens in the food, during July 2016. The Respondent disclosed reports of tests made during that month which, on examination, turned out to be the results of tests into the swimming pool, not the food and drink. During determined cross-examination, Mr Guitterez appeared to concede that there must have been reports on food and drink and that he must have given them to the Respondent. I think that this was a storm in teacup. The obvious explanation for this is that Mr Guitterez became confused, and that, in fact, there were no reports into the food and drink at the hotel in July 2016 in the possession of the Respondent, or their solicitors. There is certainly no sufficient basis for inviting the judge to draw an adverse inference based upon alleged concealment of damaging documentation on the part of the Respondent or their solicitors. In his closing submissions at trial, Mr Pennock did not invite the judge to draw such an adverse opinion, and the judge cannot be criticised for failing to do so of his own motion, or for failing to mention the point.

Finally, Mr Pennock submitted that, in the vast majority of cases, the sources of pathogens causing illness are food or drink and Dr Gant did not give evidence about the degree of likelihood (as opposed to the possibility that the pathogen might have been ingested from another source). Only Dr Bowling and Professor Threlfall did that. I cannot accept this submission. Dr Bowling made clear that he could not express a view on causation. When cross-examined by Mr Saxby, he said that it was not his job to consider the detail of the acquisition of pathogens. It was his job to diagnose and to manage symptoms. Professor Threlfall gave evidence (for the first time in cross-examination) that pathogens can be acquired from another source, apart from food or drink. He said that it was very, very rare. Dr Gant was not cross-examined about this issue, which had not been addressed by either expert in their reports, perhaps because Mr Pennock was confident that the judge would find that the Appellant had ingested cyclospora and so he did not need to cover the possibility that the Appellant had ingested some other pathogen in a different way. Dr Gant did give evidence on these matters. He was permitted to do so by way of re-examination, because, as I have said, the issue was first raised by Professor Threlfall in cross-examination. He said that food hygiene has greatly improved in recent years and so the pattern recently has been that most illnesses on holiday are caused by person-to-person transmission of e coli. Dr Gant was asked directly by Mr Saxby if he thinks that on the balance of probability, if the pathogen was not cyclospora, that the source was food or drink. Dr Gant said “no”.

Accordingly, Dr Gant did give evidence that on his view it was more likely than not the source of the pathogen that caused the Appellant’s illness was not food or drink at the hotel, and gave reasons for his view. It follows that the judge was not obliged to accept Dr Threlfall’s view.

In his submissions, Mr Saxby submitted that the Appellant should not be permitted to advance some of the points that are now relied upon by Mr Pennock, because he did not cross-examine Dr Gant on it, and the authorities state that if a point is going to be taken against the evidence of a witness, that witness must be cross-examined. I do not need to deal with this submission because, for the reasons I have already given, I have concluded that the appeal should not succeed in relation to the causation issue.

I have concluded that the criticisms of the judge for failing adequately to give reasons for his conclusions on the cyclospora point and the causation point are not justified. Mr Saxby submitted that, even if there was some force in them, the appeal should not succeed because Mr Pennock did not take up the opportunity to invite the judge to give further reasons at the time of the hand-down of the judgment. Though it does not arise for determination, I should make clear that I do not accept this submission. It is true that the authorities say that a party should ask for elaboration from a judge at the time of judgment, if the party thinks that something has been missed out. But in the Glas SAS case, Falk LJ made clear that a party is not prevented from appealing if they fail to do so. In my judgment, in many cases, including this one, it would be unfair to criticise a party for failing to seek clarification or elaboration at the time that the judgment is being handed down. This judgment was given remotely. It is asking too much, in my view, to expect either party to assimilate the reasons given by the judge at such speed that they are in a position to ask for further points to be dealt with as soon as the reading of the judgment is concluded. They might reasonably think that they would not be very popular with the judge if they did, and it would be unreasonable to expect the judge to be in a position to give detailed additional reasons on the spot.