An outbreak of holiday sickness claims

At this sad time of writing, post Westminster, Manchester, the London Bridge killings, and the Grenfell Tower losses, it seems wrong to consider ‘holidays’. But some of those killed and injured at London Bridge were on holiday, or extended work periods, enjoying the culture that we, as a nation, have to offer.

The nation, having decided on Brexit, has now, among those tragic events, also chosen the Conservatives as the largest party, albeit with support from the Democratic Unionist Party, which will lead us into the Brexit negotiations. The Conservatives and Labour, in their respective manifestos, set out that they could ‘negotiate the best possible deal for our country’ and would ‘seek to unite the country around a Brexit deal that works for every community in Britain’. We now know which it is to be – a negotiated softer deal.

As we hopefully turn a corner with clearing skies, families will look forward (albeit in trepidation from a parental perspective) to the summer holidays.

Sickness claims

From a legal perspective, we are still seeing the aftermath of last summer (and several before that) in respect of alleged sickness claims. It is an ongoing issue for the Association of British Travel Agents (ABTA), its members, and partners, who have been mounting a growing action against these claims and the firms who bring them.

Indeed, I can recount the following tale from my firm’s own experience in defending such claims. Often, there is no early notification of the complaint, such as a visit to the hotel doctor, an angrily penned resort customer complaint form, or a visit to the GP in the UK upon return. Many allegations are only brought to a defendant’s notice two or three years after the holiday via a solicitor’s letter of claim. Litigation, as a result of the approaching limitation period, follows shortly thereafter. The need for judicial guidance has led defendants to maintain robust defences and opt for a potentially more costly principled position over the, often cheaper, commercial settlement which might have been preferred six or 12 months ago.

A recent case has exposed one such claimant as being, at best, muddled and confused, or at worst, intentionally dishonest. The claimant booked a holiday to Egypt with a tour operator to depart in May 2013 with his (now estranged) partner. The claimant booked to stay at an all-inclusive hotel in Egypt, intending to enjoy some diving excursions. In November 2015 he instructed solicitors and stated that he had contracted food poisoning during his stay in May 2013, alleging poor hygiene standards at the hotel as the cause of the bacterial infection. Further, he alleged that he had been unable to take part in the diving excursions and had cancelled the excursions and obtained a refund. The claimant had not made any complaints to either the tour operator or its suppliers prior to November 2015.

As a result of this alleged disappointing experience, the claimant decided to book a second holiday with the same tour operator to the same hotel in November 2013. Once again, the claimant booked some diving excursions. Apparently, lightening can strike twice and the claimant alleged that he was ill again in November 2013 due to the poor hygiene standards at the hotel. This time, however, he was unable to cancel the diving trips in sufficient time.

Proceedings were issued on the May 2013 complaint in April 2016. At that stage, sickness allegations against all-inclusive hotels were often settled for commercial reasons. The claimant accepted £2,000 in damages and £4,500 in costs in September 2016. The November 2013 claim was issued in October 2016 and the strategy for fighting sickness claims lacking in evidence was in force. The claimant duly provided a receipt to evidence the costs of the diving excursions which he was unable to take. The claimant signed a statement of truth in his schedule of special damages to that effect.

The receipt provided handy contact details for the diving company with whom he had booked. The diving company was contacted and after a short period of silence confirmed that not only had the claimant attended all the diving excursions booked in November 2013, he had attended all those booked in May as well. Moreover, the diving company had an attendance document signed by the claimant in May 2013 and a boat passenger list for November 2013.

Once presented with the evidence and the threat of an action to recover costs due to fundamental dishonesty, the claimant agreed to discontinue his, as yet, unresolved November 2013 claim and also agreed to set aside the agreement reached in regards to the May 2013 claim. Well, to quote Shakespeare: ‘Oh, I am fortune’s fool!’

Non-injury costs

Non-injury costs were reviewed in the matter of Briggs v First Choice Holidays and Flights Ltd (SCCO, 23 September 2016), a group action resulting from illnesses on holiday. Master James, among other findings, addressed the question as to whether the claimants who had not become ill, but whose holiday had been ruined, should have pursued their claims through the ABTA arbitration scheme; the short answer was, yes.

The ABTA scheme covers non-personal injury claims up to £25,000. In this matter, that sum would adequately have covered the 152 claimants who did not suffer injury and would have resolved the issue with an expense of £40,000 as opposed to the £456,000 claimed, the latter being neither reasonable nor proportionate to incur. Claimants should ignore the fact that the scheme is voluntary; the defendant should quite rightly pay only the equivalent ABTA fee, a stance that should be taken more often by the defendant fraternity.

Air flight claims

In travelling to distant shores, many of us reach for the skies with the plethora of fleets now available to transport us abroad. I wrote this time last year (SJ 160/29) about the likely rises in the cost of fuel, given the value of the pound; the recent election has not helped that predicament. But, more fundamentally, many holidaymakers experienced delays over the recent half-term period. Whether such delays amount to extraordinary circumstances is fundamental to compensation in respect of air flight.

A recent decision by the Court of Justice of the European Union addressed the recurring issue of bird strikes. In Pešková v Travel Service (C-315/15), the court held that such a collision was not part of the normal process of air flight and was, therefore, an extraordinary circumstance within the meaning of the regulation, irrespective of whether the collision actually caused any damage.

We all hope carriers take measures to reduce or even prevent the risk of any collisions with birds. In this matter, the court concluded that a carrier is not responsible for the failure of other parties (for example, airport managers and air traffic controllers) to fulfil their obligations to take the preventative measures for which they are responsible. This is an almost isolated victory for air carriers against a background of judgments which have expanded in favour of the consumer in recent years.

European travel

Continuing the pro-European theme, and despite the imminent negotiations about to take place, holidaymakers should use the full services of the European Union available at the present time. From an illness and injury perspective, a European health insurance card (EHIC) is a must if going to Europe. Many of the cards have expired or are reaching their expiry dates; these should be checked before you go and new ones applied for.

I hope, like many others, you received recent notification from your network provider of the abolition of roaming charges on 15 June 2017, but do not forget your normal credit limits apply: it is just the fact that there will no additional charges. The new rules mean that citizens travelling within the EU will be able to call, text, and browse the internet on mobile devices at the same price they pay at home.

Finally, and wherever you decide to go, to the western Mediterranean, South America, or the Far East, preparation and sensible precautions should be at the top of your list. The industry is there to help those who get into legitimate difficulty: enjoy the summer and, most of all, be safe.

Dr Julian Morris is a partner at Plexus Law

plexuslaw.co.uk