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

Grounds relating to the causation issue

Whether or not he had erred in relation to the cyclospora issue, Mr Pennock submitted that the judge had erred in relation to the causation issue in the following respects, namely by failing to appreciate, give proper weight to, or deal properly in his judgment with, the following matters of evidence which supported the conclusion that the Appellant’s illness had been caused by a pathogen ingested from food or drink at the hotel:

Ground 6(f). Most cases of food poisoning are sporadic, not part of an outbreak, so the absence of records of other cases at the same time as the Appellant fell ill is therefore not good evidence that the cause of her illness was something other than food poisoning at the hotel;

Ground 6(g). There was no evidence of a contaminated surface at the hotel or that the Appellant had touched a contaminated surface there, or that anyone else had done so;

Ground 6(h). There was no evidence that the Appellant had ingested anything in the form of food or drink in Mexico, apart from at the hotel. She said she had not, and the judge accepted that her evidence was truthful;

Ground 6(k). In any event, though, there were records of 37 other cases of food poisoning at the hotel in 2016, albeit none in the same month as the Appellant fell ill;

Ground 7. In the vast majority of cases, the source of pathogens causing illness is food or drink;

Ground 6(h) and Ground 8. There was uncontested evidence from the Appellant and her partner that they had genuine and significant concerns about hygiene deficiencies in relation to food preparation and display at the hotel. A beef stew had been served lukewarm in the buffet, and food was recycled for the buffet;

Ground 9. During cross-examination, the hotel manager accepted that, at around the time of the Appellant’s illnesses, the hotel had commissioned laboratory reports into the food and drink; these reports would have shown whether the food and drink was infected by pathogens; he had provided these reports to the defence but they had not been disclosed in the litigation;

Ground 10. It was clear that there were deficiencies in record keeping at the hotel where food poisoning was concerned, at the time that the Appellant fell ill. Her own illness was not recorded. This raises a doubt that the absence of records of food poisoning at the time when the Appellant fell ill actually means that there were no other cases in the same period. The records should have been dealt with by extreme caution (Ground 10);

Ground 11. In those circumstances, the conclusion that the Appellant contracted her illness by coming into contact with a pathogen on a contaminated surface, rather than from food poisoning at the hotel, was wholly speculative. There was no evidence that anyone else had fallen ill in this way, as one would expect if this was the cause. The finding of a lack of an outbreak at the hotel whilst the Appellant was there would invalidate the suggestion that the Appellant had been infected by a pathogen from an infected surface at the hotel just as much as it would invalidate the suggestion that she had been infected by food or drink;

Ground 12. The Respondent had not pleaded that the Appellant had been infected by a pathogen from a contaminated surface, and so the judge should not have given weight to this suggestion; and

Ground 13. The judge was wrong to conclude on the evidence that it was probable that the pathogen had been ingested from a contaminated surface, when this was mere speculation.

In his oral submissions, Mr Pennock emphasised the following points in relation to the causation issue:

It was common ground between the experts that the vast majority of pathogens are found in food and drink. They all agreed that it was possible for pathogens to be ingested from other sources but, crucially, Dr Gant, whose evidence was accepted by the judge, did not give any evidence about the degree of likelihood that the pathogens ingested by the Appellant came from a source other than food and drink. Professor Bjarnason’s evidence was not accepted by the judge. The only expert witnesses who gave evidence about the degree of likelihood that the pathogens would come from a source other than food and drink were the Appellant’s witnesses, Dr Bowling and Professor Threlfall. They had said that they thought that the likelihood of the pathogens coming from a source other than food or drink was low.

There was no evidence at trial of the Appellant coming into contact with a pathogen from any other source. This was wholly speculative.

The judge placed insufficient weight on the results of the April 2016 Audit, and on the Appellant’s own evidence about what she saw at the hotel buffet, and on the fact that there had been outbreaks of cyclospora infection in Mexico in 2016.

There had been a critical failure on the part of the Respondent’s to disclose documents, namely the results of food samples that had been taken at the hotel and analysed, whilst the Appellant was in residence. In cross-examination, Mr Guitterez had accepted that such results existed, but they were never disclosed. The Respondent had never provided a statement to say that Guitterez was mistaken, and that the results did not exist. In those circumstances, the judge should have drawn an inference that the results showed cyclospora pathogens in food at the hotel at the relevant time, which the hotel, the Respondent, or their solicitors had covered up.