When your travel agent makes you ill
By Amien Hoosain
Wood v TUI Travel PLC t/a First Choice, a decision of the England and Wales Court of Appeal on 16 January 2017, dealt with a dispute between two very ‘unhappy campers’ and their package holiday provider.
In England, the Wood couple purchased an “all inclusive package” two week holiday in the Dominican Republic from First Choice to celebrate their fortieth wedding anniversary. The package included all flights, accommodation, and meals. The couple ate all their meals at the hotel included in the package. Two days into their holiday, Mr Wood suffering gastroenteritis (food poisoning) and spent three days in hospital. Just before their holiday ended, Ms Wood had a lesser bout of the same illness.
The couple sued First Choice for damages. They relied on the implied condition under the consumer protection legislation that if a supplier transfers ownership of goods to a consumer pursuant to a contract in the course of business, the goods must be of “satisfactory quality”. The Court of first instance held in favour of the couple, and, seemingly in addition to medical costs incurred, awarded damages for pain, suffering, and loss of amenity: £16 500 to Mr Wood, and £7 500 to Ms Wood.
First Choice appealed. Its main argument on appeal was that it had not transferred ownership of the (contaminated) food to the couple. Rather First Choice simply authorised consumption of food belonging to the hotel, the couple never becoming the owners of what was on their plates. The Court of Appeal described the argument as having “an elegant simplicity“. And then rejected the argument:
“In the absence of any express agreement to the contrary, when customers order a meal [ownership] in the meal transfers to them when it is served. … It is unreal to suppose, for example, that the pizza placed in front of a customer remains the property of the hotel or restaurant any more than the content of a glass of wine or lemonade could do so after it was served to a customer.”
First Choice may appeal further. Underlying this appeal was a concern that UK package tour operators now become the guarantor of the quality of food and drink the world over when it is provided as part of the holiday which they have contracted to provide. The Court did not accept this “floodgates argument”: “It will always be difficult (indeed, very difficult) to prove that an illness is a consequence of food or drink which was not of a satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.”
How would this case have been decided in South Africa? Under the Consumer Protection Act: (1) it is an implied term of every agreement that goods sold to a consumer are “of good quality, in good working order, and free of any [material] defects”; and (2) all of the supplier, producer, importer, distributor, and retailer are jointly and severally liable for the supply of unsafe goods (including if any injury to a natural person occurs). The result may well have been the same.