GRIFFITHS V TUI [2023] 3 WLR 1204 should be discounted. Counsel notes that, despite the Professor being asked to comment on possible breaches in health and hygiene procedures and having been provided with the hotel’s documentation on their procedures etc, nowhere is any breach, causative or otherwise, actually listed and no comments on any perceived breaches were made. Counsel submits that the court might consider that this lack of comment is because the Professor found no breaches. I also note that whilst the Professor says that a viral cause is much less likely than a bacterial one due to the fact that the claimant did not suffer from vomiting, that doesn’t explain how it was that adenovirus and rotavirus were found in the claimant. If they had no effect, or could otherwise be discounted, I would have expected the report to say in more detail why that was so, in the same way that it provided a reasoned explanation for why the claimant was not likely to be suffering from amoebic dysentery. The fact that viral infections more usually cause vomiting on the face of it means that sometimes you can have a viral infection without vomiting. Further, whilst a viral cause is apparently less likely than a bacterial one due to the lack of vomiting, I’m not clear how this fits in with the fact that only parasites and viruses were isolated in the sample, not bacteria, and the pathogens which were found were known to cause stomach upsets. The defence had set out a number of non-food related methods of transmission for the claimant’s illness from the identified pathogens. The report does not say why any of those should be discounted in this particular case. Similarly the report does not say why the possible routes for infection listed in the Particulars of Claim (air conditioning, leakage from a baby’s nappy in the swimming pool etc) are less likely to be applicable, or, if they might be relevant, what the breaches were in the health and hygiene procedures which led to the Claimant falling ill…” These criticisms seem on the face of them to be reasonable; Professor Pennington’s report was extremely brief and did not explore other possible modes of transmission in relation to the pathogens found in the Claimant’s stool sample. 3. THE APPEALS The Claimant appealed to the High Court on the basis that where expert evidence is uncontroverted, subject to exceptional circumstances it should be accepted by the court; and since there were no exceptional circumstances in this case, Her Honour Judge Truman ought to have accepted the evidence at face value and found for the Claimant. The High Court judge agreed. He accepted that there is a distinction between those gastric claims in which the Claimant relies on the occurrence of an outbreak of illness at the hotel as proving causation (‘quantitative claims’) and those claims where he or she relies on expert evidence to prove
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