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

The judge’s conclusions on causation

The starting point is that, whilst he accepted that the Appellant fell ill whilst on holiday in Mexico, and that her gastric illness was caused by a pathogen, the judge did not accept that it had been proved that the pathogen was cyclospora. He proceeded to consider causation, therefore, on the basis that the cause was another, unidentified, pathogen.

The judge also proceeded to consider causation on the basis that the two gastroenterology experts deferred to the microbiology experts, Professor Threlfall and Dr Gant, on the issue of causation, as they did on the issue as regards whether the testing had established, on the balance of probabilities, that the pathogen was cyclospora.

The judge accepted Professor Threlfall’s point that it is only possible to be sure of the source of a pathogenic infection if the source, such as food and drink, can be contemporaneously located and then examined. In the absence of such clear proof, one must look to circumstantial evidence to see if the cause could be established on a balance of probabilities.

The judge considered the evidence about the food hygiene procedures operated by the hotel. He accepted that there had been a health and safety audit at the hotel on 29 March 2016, some 14 weeks before the Appellant’s holiday. This audit was conducted by a UK company called Argent, which provides health and safety audits for the hospitality industry. The judge accepted that the audit found that there were a number of failings: the temperature of all chilled and frozen food was not checked upon arrival against specific requirements; there was no documented procedure for defrosting which was maintained at all time; there was no documented procedure to ensure that cooked food was decanted and stored in appropriate storage containers and cooled to less than eight degrees within 90 minutes; hot food was not maintained at a temperature of 63 degrees and above; food temperatures were not monitored; the temperature of hot, held or displayed hot food was not recorded and the records were not made available for inspection; and the temperature of cold food displayed for service was not warranted and the records were not made available for inspection.

On the other hand, the judge observed that all of the other measures on the audit score, approximately 50 in total, were positive and the overall audit score was 4 out of 5.

The judge regarded a more important issue to be that there was no evidence of a more generalised outbreak of food poisoning at the time of the Appellant’s illness, as the judge would have expected there to be, if her illness had been caused by food poisoning. The judge accepted Mr Pennock’s point that the Respondent’s records cannot be complete, because they can only record complaints that are made to the Respondent’s representatives on site, and that the hotel records can only record complaints made to them. Other tour operators used the hotel, and there was no evidence as to whether they recorded any outbreaks during the relevant period. Some people who suffer food poisoning will not make a fuss about it and so it will not come to the attention of the hotel or their tour operator. The very fact that the Appellant’s own illness was not recorded is a clear indication that the records are not entirely reliable, and there will be other cases of illness that was not recorded. (The Appellant had not notified the hotel or the Respondent of her illness whilst she was in Mexico.) Nonetheless, these factors were always present and yet there were records in other months of illness at the hotel, but not such records for the period when the Appellant was at the hotel. There had been complaints of illness to the Respondent’s representatives at the hotel in the period from 1-8 July (this was a typo, in fact the period was 1-8 June), and then again from 8 August onwards, with a peak on 17 August, when six guests complained of gastric illness. The hotel’s doctor did not record any complaints of gastric illness between 14 June and 8 August and then there two peaks later in August which reflected the Respondent’s record.

It follows that holidaymakers did make reports of gastric illness whilst at the hotel in the Summer of 2016, but there were no such reports whilst the Appellant was there. The judge concluded that whilst the records were not 100% accurate, they showed an overall picture, and that picture is that there was no outbreak at the hotel whilst the Appellant was in residence.

The judge said that there was therefore no evidence of a general outbreak of food poisoning at that time. If there had been, that would have been clear evidence of contamination from a single source. In the absence of such evidence, it is much more difficult to identify the source of the Appellant’s infection.

The judge observed that the burden of proof rested with the Appellant. There is nothing in the hygiene records which points to a breakdown in hygiene at the hotel. There are no records of illness amongst other guests which point to a breakdown in hygiene at the hotel.

The judge accepted Dr Gant’s evidence on causation. This was to the effect that, though it was clear that the Appellant had fallen ill through the ingestion of a pathogen, it could have been from any source that the Appellant’s hand had touched, whether that be the swimming pool, the sea, or any of those sources.

Ultimately, the judge decided the case on the burden of proof. He said:

“In my judgment, it is not for the defendant to prove what the source was, it is for the claimant to prove that it is the food and the drink, something that she has consumed, and in my judgment, for the reasons that I have set out in my judgment, the claimant has failed to do so. So, in my judgment, the claim must be dismissed.”