Griffiths v TUI (UK) Limited  EWCA Civ 1442
October 28, 2021
A bad taste in the mouth?
- A Claimant brings a claim for damages for personal injuries (acute gastric illness), suffered as a result of consuming contaminated food or drink when on an all-inclusive holiday in Turkey provided by TUI (UK) Ltd (“TUI”).
- The claim is brought pursuant to the Package Travel, Package Holidays and Package Tours Regulations 1992.
- The expert evidence at trial was from a Consultant Gastroenterologist (Dr Linzi Thomas, on Condition and Prognosis) and a Consultant Microbiologist (Professor Pennington). The latter report dealt with causation (Report and CPR Part 35 Replies). The Defence had permission to adduce expert evidence from experts in like disciplines, but did not do so.
- Neither expert was called. The only expert evidence on causation was that of Professor Pennington.
The expert evidence
- The expert opinion evidence on causation from Professor Pennington was to this effect;
“2. Peter Griffiths [Mr Griffiths] stayed at the . . , Hotel, Turkey, on an all-inclusive basis from 2 August – l6 August 2014.He fell ill on the night of 4 August with diarrhoea. His symptoms were severe for 48 hours. They eased but returned after seven days. He was admitted to hospital on 13 August. His blood pressure was high and he was dehydrated. He was discharged on l5 August. His stools were tested in the Turkish hospital, Ada Private Hospital. According to the discharge report of 16 August 20l4 by Dr Yusuf Tuna, entamoeba histolytica cysts and Giardia intestinalis was said to be seen on microscopy, and rotavirus, adenovirus, E. histolytica and Giardia antigen tests were positive, However, the Witness statement of Ibrahim Kocaoglu, the hotel doctor, the stool tests showed Entamoeba histolytica and Giqrdia intestinalis cysts, but the Rota, Adeno and Noro virus tests were negative. His statement says that Peter Griffiths was seen on 13 August 2014 with a history of 6 days sickness, abdominal cramps and diarrhoea, which complaints started after dinner in Kusadasi town centre on 6 August 2014. Self-medication partially relieved the symptoms, but diarrhoea started again on 11 August 2014.
3. I do not think that Peter Griffiths had amoebic dysentery caused by Entamoeba histolytica. Entamoeba cysts (which were found in his stools) are not diagnostic on their own because they cannot be distinguished routinely from the far commoner cysts of the harmless Entamoeba dispar. The onset of amoebic dysentery is usually gradual or intermittent; acute colitis is uncommon. Vomiting is not a feature and the diarrhoea is almost always bloody. Cases of amoebic dysentery most commonly have an incubation period of two to four weeks. None of these features lend support to a diagnosis of amoebic dysentery contracted in Turkey in Peter Griffiths’ case. I consider it to be statistically improbable that he had been infected simultaneously with Giardia, adenovirus and rotavirus. I note that a microscopic diagnosis of Giardia is not straightforward. However it is much more likely as a cause of gastroenteritis in this case then any of the other pathogens.
4. The possibility cannot be ruled out that Peter Griffiths had two infections, one starting on 4 August and a second starting on 11 August. It is not possible to make an accurate aetiological diagnosis in cases of gastroenteritis from symptoms alone. On the balance of probabilities the absence of vomiting as a symptom make a viral cause much less likely than a bacterial one. The commonest recorded bacterial causes of acute gastroenteritis in places like Turkey are Campylobacter, Shigella and Salmonella. Giardia is considered to be reasonably common. Campylobacter is more commonly recorded in travellers returning to the UK from holidays abroad than Salmonella or Shigella. Enterotoxigenic E.coli (ETEC) and its relatives are considered to be common causes of diarrhoea in countries such as Turkey. For technical reasons they are not routinely tested for in the UK. The incubation period for Giardia ranges from one to fourteen days. It averages seven days, Peter Griffiths had been at the hotel for two days before he fell ill, and nine days before his diarrhoea returned. Campylobacter has an average incubation period of three days. For ETEC it ranges from 12 to 72 hours. On the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel.”
- Part 35 questions were put and answered by Professor Pennington as follows;
4) You offer opinion that the claimant suffered gastric illness caused by consumption of contaminated food or fluid from the hotel. In relation to your opinion on causation, to what extent do you consider that there would be:
a) A range of opinion on causation amongst appropriate experts?
b) If there is a range, what is it?
c) What is your position within that range?
d) what facts and matters have you relied upon in adopting your position within that range?
a)-d) Regarding causation etc. the appropriate experts would consider the gastroenteritis symptoms, their possible infective cause, the commonness of possible microbial causes in Turkey and their modes of transmission, their incubation periods and the length of time the claimant had been at the hotel. I did the same.”
Question 10 set out four sets of online guidance, three of which were in relation to giardia and giardiasis and the fourth of which concerned rotavirus, copies of which were attached. The Professor was asked:
“Do you consider the content of the above publications to be reliable sources of information? If not, why not?”
The Professor’s answer was that he did consider the publications to be reliable sources of information.
- The trial Judge (HHJ Truman) rightly directed herself that, following Wood v. Tui, in a case such as Mr Griffiths’ the Claimant would need to show that he had suffered an illness as a result of contamination of the food and drink he had consumed. Further, that the food he had consumed was unsatisfactory. Other potential causes of contamination would have to be considered.
- She accepted that C;
(i) had been ill as he described;
(ii) had eaten and drunk as he described;
(iii) had fallen ill on the dates he had specified; and
(iv) had been hospitalised.
- She was critical of Professor Pennington’s opinion in that the Professor failed adequately to;
(a) consider whether consumption of the meal offsite could not have been the cause of the Claimant’s illness;
(b) provide reasoning showing a link between the stated incubation periods for the Claimant’s illness and that it was the food at the Hotel which had caused the illness;
(c) comment upon alleged breaches in the health and hygiene procedures;
(d) explain why no bacteria were found in samples taken from the Claimant. The pathogens found were viral, thereby pointing to a viral cause for the illness not bacterial;
(e) consider any of the non-food related methods of transmission for the Claimant’s illness from the identified pathogens;
(f) give any range of opinion in his Part 35 answers.
- She concluded the Claimant had failed to prove his case on causation, despite the expert evidence supporting his case.
- A defendant could, she said, even without its own expert evidence, simply sit back and do nothing, save make submissions that the expert evidence was inadequate and the Claimant had failed to make out its case.
The appeal to the High Court:  EWHC 2268 (QB)
- The Claimant appealed and Mr Justice Martin Spencer allowed his appeal. He described the report and Part 35 replies of Professor Pennington as “uncontroverted”. This because the Defendant;
(a) called no expert evidence of its own to challenge it;
(b) called no factual evidence to undermine it;
(c) put in no documentary evidence to contradict it;
(d) mounted no successful challenge to the evidence of the Claimant or his wife as to their factual assertions, nor did they cross-examine Professor Pennington.
- The Judge determined that if, in reality, an expert report contained a bald assertion eg “x acquired his gastric illness following the consumption of contaminated food from the hotel”, a Court could reject that as a bare ipse dixit (a dogmatic and unproven statement).
- However, where a report is uncontroverted, as he found it was here, it was not open a party to subject that report to the same kind of critique as if it was evaluating a controverted or contested report. Once an expert report is truly uncontroverted, the role of the Court falls away, he found. In these circumstances, all the Court needed to do was to decide whether the report fulfilled certain minimum standards, which any expert report must satisfy.
- This required substantial compliance with CPR Part 35.
- He found that by ascribing, effectively nil weight to the report, the trial Judge was ruling that the report did not meet those minimum standards. She was wrong to so find.
- Professor Pennington’s report was not a mere ipse dixit. It “went a long way towards substantiating his opinion…”
The appeal to the Court of Appeal
- TUI appealed from the High Court Judge’s order. The essence of its contentions were;
(a) the Judge was wrong to state that in the case of an “uncontroverted” expert report all the Court needed to do was to decide whether it fulfilled the minimum requirements of CPR PD 35.
(b) If that approach were correct all the Court would need to do is to rubber stamp compliance with the PD. However, that was wrong, what the Court was required to do was to consider whether the expert report was accepted. This required a consideration of it.
(c) If the Judge were correct the cost of low value claims would be increased and there will be a deleterious impact upon Court resources. This because a defendant will likely need to adduce expert evidence of their own and/or require a Claimant to attend for cross-examination.
- The Court of Appeal, by a majority – (Asplin and Nugee LJJ, Bean LJ dissenting), allowed the appeal.
- Asplin LJ gave the leading judgment. She sought to distinguish the line of authorities upon which the Judge relied. There was no “bright line” between controverted and uncontroverted expert evidence. The approach was, she said more nuanced.
- Here, the Judge did not decide that Professor Pennington was “wrong”. She had decided the case on the burden of proof.
- There might be a case where an otherwise Part 35 compliant was sparse in its content but yet the expert opinions set out in it might be accepted. Asplin LJ gave the example;
“…if the sentences contained an opinion as to whether a certain chemical was present in a compound.”
- However, where the expert evidence is in the form of an evaluative opinion, as the Supreme Court pointed out in Kennedy v. Cordia (Services) LLP  1WLR 597, a mere ipse dixit is all but worthless.
- Nugee LJ agreed with Asplin LJ, giving some reasons of his own.
The dissenting opinion of Bean LJ
- His views were clear and trenchantly put. His judgment was that the Claimant did not have a fair trial. The Court should not allow litigation by ambush.
- In his judgment, Professor Pennington gave a very clear conclusion on the very issue on which he was asked to give an opinion. If desired, this could and should have been challenged in cross-examination.
- He did not agree with Martin Spencer J. stating he was wrong to hold that a judge was effectively bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence. In such a case, the role of the Court did not simply fall away. The fact finding judge cannot delegate the decision-making role to the expert.
- However, a judge was generally bound to accept the evidence of an expert if it is not controverted by other expert and factual evidence and the opposing party could have cross-examined the expert, but chose for tactical reasons not to do so.
- There was no authority cited which supported the proposition that a Defendant can seek to “dismantle the reasoning of an expert for the first time in closing submissions without having applied to cross-examine the expert.”
- He stated that he “profoundly disagree[d]” with the view of the majority that it was open to a Defendant to wait until closing to make its criticisms of an expert report.
What can we take from the majority view?
- It remains the case that if an expert report in a case deals with the relevant issues upon which the expert was instructed, the opinion was supported by logical reasoning and it is the only evidence upon the topic, it is difficult (but not impossible) to envisage a situation in which it would be appropriate to decide that it is wrong.
- While it may be a high-risk strategy, the majority in the Court of Appeal thought there was nothing wrong (or impermissible) to choose neither to adduce contrary evidence, nor to seek to cross-examine on it. It was open in such a case to challenge that expert evidence in closing submissions. This was not inherently unfair.
- Neither the expert and/or the party calling him are entitled to require the opposing party to give them an opportunity to make good deficiencies in their evidence by seeking to pose further questions or by cross-examining the expert witness whose report contains lacunae in the subject matter considered or in the reasoning. It was for the party who filed the report to make sure all relevant matters were covered and that the content of the report was sufficient to satisfy the burden of proof on the issue to which it is directed; see  – .
- The correct approach will depend upon the precise facts of any given case. However, if the expert is to fulfil his overriding duty to the Court, it is inevitable, said Asplin LJ. (at ) that a report must contain a basis for the expert’s conclusions. The extent of the reasoning required will depend upon what is necessary in the circumstances.
- Compliance with Part 35 alone is insufficient to require the Court to accept uncontroverted expert evidence. There is no right test, each case will depend upon its own circumstances.
A bad taste in the mouth?
- In my view, the decision of the majority is unwelcome and disappointing.
- Further, the outcome of this trial, contrary to the overriding objective that Courts will deal with cases justly, was unfair to this Claimant.
- It is arguable that in its approach to the expert evidence the Defendant did not assist the Court to help further the overriding objective; per CPR 1.3.
- If a Defendant has criticisms to make of expert opinion, in my view it should raise those criticisms by way of Part 35 questions and, if necessary, by seeking to have the expert attend for cross-examination. If, after cross-examination the expert is still unable to meet those criticisms, then it is entirely fair to highlight that in closing submissions. This could be by arguing that such evidence is without proper foundation and/or the Claimant had failed to discharge the burden of proof.
- Of course, in a high value multi-track claim, it will be open to a Defendant to seek permission to obtain its own expert evidence, without first putting questions. In sufficiently high value claims, the starting point will likely be that a defendant will seek permission to obtain its own expert evidence on a disputed issue. The Defendant here might have done that.
- I would strongly caution Defendant insurers and their legal teams from strictly following the majority view in this case. This case is highly fact sensitive.
- While each case must be considered on its own merits, an approach which seeks to undermine expert evidence by e.g. first putting Part 35 questions will;
(a) likely allow a better evaluation of the strengths or weaknesses of that evidence;
(b) thereby enable a more informed view to be taken on merits, at least insofar as the issue to which the expert evidence goes.
(c) allow a stronger argument to be made seeking to support a defendant’s application for its own expert evidence on the issue.
- In my view, ultimately it is hard to disagree with Bean LJ’s trenchant dissent. Time will tell whether the Supreme Court will consider this matter further.
  QB 927.
 At  –  and  – .