INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW 2. THE DECISION AT FIRST INSTANCE The Claimant claimed damages against the Defendant tour operator under the Package Travel, Package Travel, Package Holidays and Package Tours Regulations 1992, the UK iteration of Council Directive 90/314/EEC (the Package Travel Directive 1990, the precursor to the 2015 Directive). Dr Linzi Thomas, a consultant gastroenterologist, and Professor Hugh Pennington, a consultant microbiologist, provided expert reports supportive of the Claimant’s claim that his symptoms were caused by consuming food or beverages provided to him by the hotel. The Defendant obtained permission to obtain and rely upon its own expert evidence in gastroenterology and microbiology, but did not do so, with the effect that at trial it had no expert evidence in response to the Claimant’s expert reports. Nor did the Defendant apply to cross examine the experts at trial, leaving the trial judge with only the evidence of Professor Pennington on the issue of causation. Since the judge accepted the evidence of the Claimant and his wife as being true and accurate, the factual underpinnings of Professor Pennington’s report were not shaken, and as a result, his evidence was uncontroverted, that is, it could not be challenged either factually or by reference to alternative expert evidence. On 4th September 2019 Her Honour Judge Truman nevertheless dismissed the Claimant’s claim. She adopted the criticisms of Professor Pennington’s report made by counsel for the Defendant: “…Counsel for the defendant was unhappy about a number of matters within the report. The Professor thought it unlikely that the claimant had been simultaneously infected with Giardia, adenovirus and rotavirus. That on the face of it would appear to suggest that the claimant had been infected on at least two separate occasions. The claimant’s history of being ill, recovering somewhat and then being ill again, might also suggest two separate infections, and indeed the report says that the possibility of there being two separate infections cannot be ruled out. Nothing further is then said about that. There is no explanation as to why the meal eaten on 7 August might not be at fault for the possible second illness and why the conclusion is that the claimant acquired his illness following the consumption of contaminated food or fluid from the hotel. Further, counsel points to the lack of reasoning between setting out the incubation periods (one to fourteen days for Giardia, average seven), the claimant falling ill after two and then nine days after arrival at the hotel, and then saying that the illness is due to the hotel, with again nothing to say why this is so. The report makes no specific mention of the food the claimant ate at the airport before reaching the hotel (which falls within the incubation periods given), nor what he ate in the local town, and why those potential sources
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