Holiday Sickness Compensation.

Holiday Food Poisoning Claims: Evidence, Compensation and Fraud

Food poisoning and other gastric illnesses can ruin a holiday and, in serious cases, cause lasting medical problems.

A traveller who becomes ill because food, water or hygiene standards at a hotel or resort were unsafe may be entitled to claim compensation. However, becoming ill while abroad does not automatically prove that the hotel or tour operator was responsible.

The claimant must normally show that the illness was caused by a failure to provide the holiday services with reasonable care and in accordance with the package-travel contract.

The Rise in Holiday Sickness Claims

During the years leading up to 2017, tour operators reported a very large increase in gastric illness claims by British holidaymakers.

ABTA reported that the number of claims had increased by more than 500% in three years, even though reported sickness levels in many resorts had remained stable or fallen.

Concerns were raised that:

• claims-management businesses were actively approaching holidaymakers;


• some people were encouraged to exaggerate or invent symptoms;


• claims were being made without illness being reported at the resort;


• medical evidence was sometimes absent;


• social-media posts contradicted claims of serious illness; and


• the legal costs recoverable in overseas package claims encouraged speculative cases.

Those concerns led to changes in the civil procedure rules and stronger action against dishonest claims.

Fixed Legal Costs for Package Holiday Claims

The old suggestion that solicitors could recover unlimited legal costs for holiday sickness claims is no longer an accurate description of the usual position.

In 2018, the Government introduced a specific pre-action protocol and fixed recoverable costs for qualifying package-travel sickness claims.

The reforms were intended to bring the cost treatment of these cases closer to comparable personal injury claims arising within England and Wales.

The current Pre-Action Protocol for Resolution of Package Travel Claims generally applies to qualifying claims valued at no more than £25,000.

Fixed recoverable costs do not mean that every client pays the same amount to their solicitor. A claimant should still check:

• whether the solicitor acts under a conditional fee agreement;


• the success fee;


• whether after-the-event insurance is recommended;


• what deductions may be made from compensation;


• whether unrecovered costs could become payable; and


• what happens if the claim is unsuccessful?

Package Holidays and Tour Operator Responsibility

The Package Travel and Linked Travel Arrangements Regulations 2018 provide important protection for people who purchase qualifying package holidays.

A package will normally combine at least two different types of travel service for the same trip, such as:

• flights and accommodation;


• accommodation and car hire;


• transport and a significant tourist service; or


• another qualifying combination sold as one package.

The package organiser is responsible for the performance of the travel services included in the contract, even where the hotel, airline or another supplier actually provides the service.

This may allow a UK traveller to bring a claim against the package organiser rather than having to pursue an overseas hotel directly.

What Must a Claimant Prove?

A successful claim normally requires evidence that:

• the holiday was a qualifying package;


• the claimant suffered a genuine illness;


• the illness was probably caused by food, drink or hygiene conditions forming part of the package;


• the relevant service was not performed properly;


• the organiser or supplier failed to exercise reasonable care; and


• the illness caused loss, injury or expense.

It is not enough merely to show that the traveller became unwell while staying at a hotel.

Gastric illness may be caused by:

• contaminated hotel food;


• unsafe drinking water;


• poor kitchen hygiene;


• inadequate food storage;


• undercooked food;


• food eaten away from the hotel;


• alcohol consumption;


• a viral infection;


• an existing medical condition;


• a change in diet or climate; or


• person-to-person transmission.

The court must decide what probably caused the illness on the evidence available.

Evidence of Poor Food or Hygiene Standards

Evidence supporting a claim may include:

• food served undercooked or insufficiently heated;


• food left uncovered for long periods;


• cold food kept at unsafe temperatures;


• new food being added to older buffet dishes;


• flies, insects or animals around food;


• dirty plates, cutlery or preparation areas;


• staff handling cooked and raw food without proper precautions;


• unsafe water or ice;


• sewage or sanitation problems;


• other guests becoming ill; and


• complaints made to hotel staff or the holiday representative.

A photograph of an untidy buffet will not by itself prove that the food caused an illness. The whole body of medical and factual evidence must be considered.

Medical Evidence

A traveller who becomes ill should obtain medical attention as soon as reasonably possible.

Medical evidence may include:

• a resort doctor’s notes;


• hospital records;


• prescriptions;


• laboratory or stool-test results;


• records from the traveller's GP after returning home;


• an independent medical report; and


• evidence of continuing symptoms or complications.

A medical diagnosis made while symptoms are present may be particularly valuable.

However, failure to see a doctor abroad does not automatically make a genuine claim invalid. A traveller may have been confined to their room, unable to obtain assistance or unaware of how to access medical care.

The absence of contemporaneous medical evidence may nevertheless make it more difficult to prove the illness and its cause.

Report the Illness at the Resort

The traveller should report the illness promptly to:

• the hotel management;


• the tour operator’s representative;


• the organiser’s emergency assistance service;


• the travel insurer; and


• the relevant local health authority, where appropriate.

Ask for the complaint to be recorded and retain a copy or reference number.

Prompt reporting gives the organiser an opportunity to:

• arrange medical assistance;


• investigate the source;


• inspect food and hygiene practices;


• identify other affected guests;


• preserve relevant records; and


• take action to prevent further illness.

A claim made months after the holiday without any complaint during the stay may attract closer scrutiny, although it is not automatically fraudulent or invalid.

Keep a Record of What Happened

A claimant should prepare a clear chronology recording:

• when the holiday began;


• where and what they ate;


• whether they ate outside the hotel;


• when symptoms began;


• the nature and frequency of the symptoms;


• any medical treatment received;


• complaints made to staff;


• other guests who became ill;


• activities or excursions missed;


• additional expenses; and


• the date symptoms ended or improved.

Receipts, booking documents, photographs and correspondence should be retained.

Do Not Exaggerate the Claim

A claimant must describe the illness and its effects accurately.

Evidence may be checked against:

• medical notes;


• hotel records;


• flight and excursion records;


• restaurant payments;


• social-media posts;


• photographs and videos;


• witness statements;


• employment records; and


• previous claims.

Posting photographs of meals, alcohol, excursions or sporting activities during a period in which the claimant later says they were confined to bed may undermine the claim.

A person should not delete or alter relevant material after a dispute has arisen.

Fraudulent Holiday Sickness Claims

Making a deliberately false holiday sickness claim can have serious consequences.

Dishonest conduct may include:

• inventing an illness;


• exaggerating the length or severity of symptoms;


• claiming that hotel food was the only possible cause when food was eaten elsewhere;


• producing false documents;


• persuading witnesses to provide untrue evidence;


• concealing contradictory photographs or posts; or


• signing a false statement of truth.

Possible consequences include:

• the claim being dismissed;


• an order to pay the tour operator's legal costs;


• loss of any genuine element of the claim;


• contempt of court proceedings;


• criminal prosecution for fraud;


• a fine or imprisonment; and


• difficulty obtaining insurance or bringing future claims.

A solicitor must not pursue a claim they know to be dishonest and may be required to stop acting if the client provides false information.

Fundamental Dishonesty

In a personal injury claim, a court may dismiss the entire case where the claimant has been fundamentally dishonest in relation to the claim or a related claim.

This can occur even where part of the underlying injury was genuine.

The court may also order the claimant to pay substantial costs.

An honest mistake or minor inconsistency is not necessarily fundamental dishonesty, but deliberate exaggeration can have severe consequences.

What Compensation Can Be Claimed?

Compensation may cover:

• pain, suffering and loss of amenity;


• medical and prescription costs;


• additional accommodation or travel expenses;


• lost earnings;


• care and assistance;


• the cost of missed excursions;


• loss of holiday enjoyment;


• continuing medical problems; and


• other reasonably incurred losses.

Compensation is based on the actual injury and loss proved. A claimant will not normally receive a full refund of the entire holiday simply because they were ill for part of it.

Receipts and documentary evidence should be kept for all expenses.

Long-Term Effects of Food Poisoning

Many gastric illnesses resolve within a short period, but some can produce serious or continuing complications.

These may include:

• post-infectious irritable bowel syndrome;


• reactive arthritis;


• kidney complications;


• dehydration;


• hospital admission;


• psychological effects;


• weight loss; and


• ongoing dietary restrictions.

Where symptoms continue, appropriate specialist evidence may be required before the claim is settled.

Do Not Settle Too Early

A tour operator or insurer may make an early offer before the full extent of the illness is known.

Once compensation is accepted in full and final settlement, the claimant will usually be unable to return for more money if symptoms continue or complications develop.

Medical prognosis should therefore be reasonably clear before a final settlement is accepted.

How Long Do You Have to Claim?

A personal injury claim brought in England and Wales will commonly be subject to a three-year limitation period.

The period normally runs from the date of the illness or from the date on which the claimant first had the necessary knowledge about the injury and its possible cause.

Different rules may apply where:

• the claimant was under 18;


• the claimant lacks mental capacity;


• the booking was not a package holiday;


• the claim is made directly against an overseas hotel;


• foreign law applies;


• an international transport convention applies; or


• the claim includes contractual losses without personal injury.

Some travel claims have much shorter limitation periods. Legal advice should therefore be obtained promptly.

Claims Involving Children

Where the person who became ill was under 18, a parent or litigation friend may bring the claim on the child's behalf.

Any settlement of a child's court claim normally requires court approval.

Compensation is usually protected for the child until they reach adulthood unless the court directs otherwise.

Package Holiday or Separate Booking?

The identity of the responsible defendant depends on how the holiday was booked.

Where flights and accommodation formed a qualifying package, the organiser may be responsible under the Package Travel Regulations.

Where the traveller booked directly with the hotel, or made separate arrangements with unrelated providers, they may have to pursue:

• the overseas hotel;


• a booking platform;


• a local restaurant;


• the travel insurer; or


• another responsible business.

Questions may then arise about jurisdiction, applicable law and enforcing a judgment abroad.

Linked Travel Arrangements

A linked travel arrangement is not the same as a package holiday.

Although it may provide some financial protection, it does not normally make one organiser responsible for the proper performance of every travel service.

Travellers should check their booking documents to establish whether they purchased:

• a package;


• a linked travel arrangement; or


• separate travel services.

Travel Insurance

Travel insurance may cover:

• overseas medical treatment;


• hospital costs;


• additional accommodation;


• repatriation;


• cancelled excursions;


• curtailment of the holiday; and


• other emergency expenses.

The traveller should notify the insurer promptly and follow the policy's assistance procedure where possible.

An insurance claim may be available even where there is insufficient evidence to prove that the tour operator caused the illness.

Complaining to the Tour Operator

Before issuing court proceedings, the traveller should normally make a written complaint setting out:

• the booking reference;


• the hotel and travel dates;


• the illness suffered;


• when it was reported;


• medical treatment received;


• the alleged hygiene failures;


• the losses claimed; and


• the outcome requested.

The package-travel pre-action protocol encourages early exchange of information, investigation and settlement without court proceedings.

Alternative Dispute Resolution

Where a dispute cannot be resolved directly, alternative dispute resolution may be available.

This could include:

• negotiation;


• mediation;


• an industry complaints scheme;


• ABTA arbitration where applicable; or


• another approved dispute-resolution service.

A court may consider whether the parties acted reasonably in attempting to resolve the dispute before litigation.

Can a Tour Operator Refuse Future Bookings?

A travel company may decide not to accept future bookings from a customer, subject to contractual, consumer and discrimination law.

However, making a genuine complaint or claim does not establish fraud.

A tour operator should have proper grounds before accusing a customer of dishonesty or placing them on an internal fraud-prevention list.

A person who believes inaccurate or unfair information has been recorded may seek advice about:

• data protection rights;


• access to personal information;


• correction of inaccurate records;


• defamation;


• consumer law; and


• discrimination.

Protecting Genuine Claimants

Fraudulent claims damage the travel industry and can increase costs for other holidaymakers.

They can also make tour operators more suspicious of people who have suffered a genuine illness.

The answer is not to prevent legitimate claims. It is to ensure that cases are supported by reliable evidence and investigated fairly.

A genuine claimant should not automatically be rejected merely because:

• they did not obtain a particular form from the hotel;


• they were too unwell to visit a resort doctor;


• the hotel denies responsibility;


• not every family member became ill; or


• laboratory testing did not identify a specific organism.

Each case should be decided on the complete medical and factual evidence.

How a Travel Claims Solicitor Can Help

A solicitor may assist with:

• establishing whether the booking was a package holiday;


• identifying the correct defendant;


• obtaining medical records and expert evidence;


• investigating food and hygiene standards;


• dealing with overseas evidence;


• valuing the injury and financial losses;


• complying with the pre-action protocol;


• negotiating with the organiser or insurer;


• responding to allegations of dishonesty; and


• issuing court proceedings where necessary.

Finding a Holiday Sickness Solicitor

A traveller who becomes ill because of unsafe food, water or hygiene standards may have a legitimate claim, but the illness and its cause must be properly evidenced.

Report the illness promptly, obtain medical assistance, retain documents and provide an accurate account of what occurred.

Use the search facility at the top of this page to find a solicitor experienced in travel claims, package holidays or personal injury.

Disclaimer

Solicitors.com is not a firm of solicitors. This article provides general information about holiday sickness claims and does not constitute legal, medical or travel advice. Limitation periods, jurisdiction and liability will depend on the booking and individual circumstances.

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