By Paul Bonner, Senior Underwriter
(Estimated reading time: 1 minute, 30 seconds)
Since the Court of Appeal’s Decision in Wood v TUI in 2017, it has been harder for the claimant to succeed in demonstrating causation in relation to their gastric symptoms.
The defendant tour operators have had considerable success in challenging both the factual evidence in relation to whether the claimants dined away from their all-inclusive resort, and the reliability of the expert evidence in showing causation.
Now the High Court has overturned the first instance decision in favour of the defendant, where the defence had not led any expert evidence, but the court had accepted that the claimant’s expert had not gone far enough in establishing a causative link between the claimant’s gastric illness and the holiday resort.
On appeal to the High Court in Griffiths v TUI (2020), the Judge found that although the claimant’s expert’s report had some shortcomings it was uncontroverted, in that there was no expert’s report from the defendant; therefore it was wrong of the lower court to find against the claimant’s expert.
The court cannot ignore a report which complies with CPR Part 35 unless there are exceptional circumstances. If there is no expert challenge from the defence, the claimant’s expert is believed.
What will happen now?
In short, the defendant tour operator must commit to obtaining its own expert evidence on causation to counter the claimant’s expert. It can no longer simply seek to criticise the claimant’s expert’s report.
What will TUI do next? It can take the case to the Court of Appeal, or it will have to contemplate instructing expensive experts on each case it is defending. In this position TUI, and others, may seek to settle lower value cases.
For now at least, claimants have something to make them feel better.
If you have a question about a travel-related personal injury claim please email or call David on 01483 514808.
