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

Mr Justice Cavanagh:

This a rolled-up hearing of the Appellant’s application for permission to appeal, which took place on the basis that the parties should be prepared to argue the full appeal, if permission is granted. I have, therefore, heard full argument on the appeal, and I indicated that I would give a judgment that will deal with permission to appeal and, if permission is given, will also deal with whether or not the appeal is to be allowed.

The appeal is against a judgment that was handed down orally on 1 March 2024 by HHJ Murdoch, sitting at Leicester County Court, and following a trial that lasted three days, beginning on 13 December 2023. The judge described his judgment as “ex tempore”, though it was delivered over two months after the trial concluded. Counsel were in attendance, via CVP, at the time that the judgment was handed down. The judge has since approved the transcript of the judgment in the papers before me.

The Appellant was represented before me by Mr Ian Pennock of counsel, and the Respondent by Mr Dan Saxby. Both were trial counsel. I am grateful to both counsel for their clear, helpful, and skilful submissions, which were of a high standard.

In his judgment dated 1 March 2024, the judge dismissed the Appellant’s claim against the Respondent. The Appellant, who is a school teacher, had travelled to Mexico in July 2016, with her then partner, for a holiday at an all-inclusive hotel, which had been booked through the Respondent. The hotel was the Rui Vallarta in Nuevo Vallarta, on the Pacific coast of Mexico. She arrived on 8 July 2016 and left on 23 July 2016. At about 5 pm on 11 July, the Appellant fell ill with diarrhoea and vomiting. She continued to feel unwell for the rest of the holiday, though she was able to participate in a number of excursions after she had first felt unwell. She suffered bouts of diarrhoea six or seven times a day for the remainder of her holiday. After the Appellant’s return, she continued to suffer from diarrhoea, and was diagnosed with gastroenteritis. She has since been diagnosed with Post Infective Irritable Bowel Syndrome and has suffered from anxiety, stress and discomfort as a result. It was the Appellant’s case that this resulted from an infection that was caused by a pathogen in contaminated food or drink that she consumed at the hotel. It was her primary case that the cause was a pathogen known as cyclospora. Stool samples were analysed by a regional laboratory and the national reference laboratory in September 2016, some weeks after the Appellant’s return from holiday. The regional laboratory was the local Public Health England Laboratory and the national reference laboratory was the National Parasitology Reference Laboratory. The analysis at the regional laboratory concluded that stool microscopy had identified cyclospora oocytes (eggs) in the Appellant’s stool. The results of further analysis at the different, national reference laboratory, nine days later, did not indicate the presence of cyclospora oocytes. It was the Appellant’s case that the court should conclude, based on the regional laboratory’s results, that her illness was caused by cyclospora. However, she submitted in the alternative that, even if the pathogen concerned was not cyclospora, the court could be satisfied, on a balance of probabilities, that her illness was caused by another pathogen or pathogens that had been consumed in food or drink when staying at the hotel. The Appellant further contended that the food hygiene standards at the hotel were inadequate.

The Respondent submitted at trial that the Appellant could not show that she fell ill whilst on holiday. The Respondent said that there was evidence that she had been suffering from diarrhoea before she left for Mexico. In any event, the Respondent submitted that the evidence, including the test results and the expert evidence, did not establish that the Appellant’s illness was caused by cyclospora. The Respondent further submitted that, whether the illness was caused by cyclospora or by another pathogen, the Appellant could not prove, to the civil standard, that the source of the pathogen was food or drink that the Appellant had consumed at the hotel.

Though in substance a personal injury claim, in strict legal terms this was a claim for breach of contract. It was alleged that the Respondent was in breach of an implied obligation to ensure that the food and drink supplied by the hotel to which the Appellant was sent would be of satisfactory quality and safe for human consumption. This term was implied by section 4(2) of the Supply of Goods and Services Act 1982 and/or section 2 of the Consumer Rights Act 2015. The Appellant also alleged that the Respondent was in breach of a duty to ensure that the hotel would carry out the services supplied to the Appellant under her contract with the Respondent with reasonable care and skill, as implied by common law and/or by section 13 of the 1982 Act and or section 49 of the 2015 Act. The Appellant also contended that, pursuant to regulation 15(1) of the Package Travel Regulations, Package Holidays, and Package Tour Regulations 1992, the Respondent was liable to the Appellant for the proper performance of the obligations under the contract by the hotel. These legal obligations were not disputed by the Respondent. Their existence in foreign package holiday cases was confirmed by the Court of Appeal in Wood v TUI Travel plc t/a First Choice [2017] EWCA Civ 11; [2018] QB 927. The issue for the court was therefore whether the Appellant could prove on the balance of probabilities that she had contracted her illness from a pathogen in food or drink consumed at the hotel, in which case these obligations would have been breached.

I say at the outset that the judge found in his judgment that the Appellant and her partner gave straightforward, honest, evidence, which the judge accepted in its entirety. This is not one of those cases in which a claimant is alleged to have fabricated or exaggerated the symptoms of sickness and diarrhoea that were encountered on holiday.

The issues relating to liability that the judge had to consider were set out by Mr Pennock in his skeleton argument at trial.

The first issue was whether the Appellant suffered from the symptoms that were alleged. There was no dispute on this issue. It was accepted that the Appellant had suffered the symptoms of gastroenteritis that she had described.

The second issue was whether the symptoms had started before the Appellant went on holiday to Mexico, and so could not have been caused by food poisoning at the hotel. The judge accepted the Appellant’s case on this issue. He found that the Appellant is not the sort of person to mislead the court or her GP, or indeed to fly to Mexico when suffering from diarrhoea.

This left the third issue, which is the central one for the purposes of this appeal. This is what it was that caused the Appellant’s symptoms. The Appellant’s primary case was that the Appellant suffered food poisoning that was caused by cyclospora. Cyclospora is sometimes found in Mexico, and is transmitted via food and drink. On behalf of the Appellant, Mr Pennock stressed that the hotel was an all-inclusive hotel, and the Appellant had not eaten or drunk anything outside the hotel between her arrival in Mexico and falling ill, and so submitted that the only possible conclusion open to the court was that the food poisoning was caused by cyclospora pathogens in food or drink consumed at the hotel. He further submitted that, in any event, the Appellant did not have to identify the actual pathogen that caused her food poisoning, it being sufficient that her symptoms commenced on holiday. This was because she did not consume any food or drink, before her symptoms commenced, other than that provided by the hotel. Therefore, whatever the pathogens concerned, the illness must have come from food or drink that was consumed in the hotel.

This central issue can be subdivided into two subsidiary issues:

Has the Appellant proved on the balance of probabilities that the pathogen that caused her illness was cyclospora?; and

Has the Appellant proved on the balance of probabilities that her illness was caused by a pathogen in the food or drink that she consumed at the hotel, whether or not it was cyclospora.

Issue (1) was a key issue. Cyclospora is a pathogen that is found in some locations in Mexico but is rarely, if ever, found in the UK. Therefore, if the court was satisfied that the pathogen that caused the Appellant’s illness was cyclospora, that would put paid to the Respondent’s contention that the Appellant was suffering from the illness before she left the UK. More significantly still, cyclospora is a food-borne pathogen. Mr Saxby, counsel for the Respondent, accepted in argument before me that if the judge had found that the pathogen which had caused the Appellant’s illness was cyclospora, then it would have been highly likely that the judge would have gone on to find, on the balance of probabilities, that the cyclospora which infected the Appellant had been contained in food that she consumed at the hotel, and so it was highly likely that the judge would have found in the Appellant’s favour. It would still have been open for the Respondent to argue, notwithstanding a finding that the pathogen that caused the illness was cyclospora, that the Appellant had not ingested the cyclospora in food at the hotel in Neuva Vallarta, but the forensic reality was that the judge would find that she had done so.

As for (2), as I have said, the Appellant’s case did not depend entirely upon a finding that she had been infected by cyclospora. She contended that, if not cyclospora, some other pathogen or pathogens in the hotel food and drink must have been the cause of her illness. Therefore, a finding that the Appellant had been unable to prove that the pathogen in question was cyclospora was not fatal to her claim. However, as I have said, a finding that the Appellant had been infected by cyclospora, rather than another pathogen, would greatly have assisted her case. Regardless of whether the cause was cyclospora or another pathogen, however, Mr Pennock submitted to the judge that the possibility that the Appellant had been infected with food poisoning or some other illness before she departed for Mexico could be, and in the event was, excluded. Mr Pennock pointed to the fact that the Appellant had been staying in an all-inclusive hotel and so had been living in what is sometimes described as a “closed system”. There was, he submitted, in reality no other candidate for the cause of the Appellant’s illness, apart from the food and drink supplied by the hotel. The Appellant also relied on evidence that was said to show that the hotel’s food hygiene standards were sub-optimal, and that there had been recorded outbreaks of food poisoning at the hotel in other months in 2016. It was true that there had been no other recorded episodes of food poisoning at the hotel in July 2016, but there were records of undiagnosed illness (diarrhoea and vomiting) at the hotel in other months in Summer 2016, and Mr Pennock submitted that there was evidence that the hotel’s record-keeping was incomplete.

At trial, the court heard from four expert witnesses. These were two gastroenterologists, Dr Bowling for the Appellant, and Professor Bjarnason for the Respondent, and two microbiologists, Professor Threlfall for the Appellant, and Dr Gant, for the Respondent.