In this post Robert Oldham considers Bruder v Red Sea Holidays, a recent County Court appeal, which provides a useful early example of the application of the Supreme Court decision of Griffiths v TUI in the context of a holiday sickness claim (for a detailed post on the Supreme Court decision itself, see Peter Hale’s recent article on this blog).

In short, the general rule as stated by the Supreme Court in Griffiths v TUI is that a party must challenge in cross-examination the evidence of any lay or expert witness of the opposing party on a material point which he or she claims should not be accepted. In Griffiths, Lord Hodge explained that the requirement was not a rigid one and provides seven instances in which the requirement may be relaxed. Those are:

1. where the matter challenged is collateral or insignificant
2. where the factual evidence is manifestly incredible
3. where a bold assertion is made in an expert report without any reasoning to support it (“bare ipse dixit”)
4. where there is an obvious mistake on the face of an expert report
5. where the factual evidence is contrary to factual basis on which an expert premised his or her view
6. where an expert has been given sufficient opportunity to respond to criticism or otherwise clarify the report (e.g. via Part 35 questions)
7. where there has been a failure to comply with the requirements of CPR Part 35 and Practice Direction 35

The First Instance Case

The claimants, a couple, alleged that they had fallen sick due to low hygiene standards at the Defendant’s hotel.

At trial, both relied on reports from a gastroenterologist who had not had questions put to her and who had not attended trial. However, the Deputy District Judge found that causation had not been established. He considered that the number of cases reported as a proportion of the overall number of guests was not sufficient to establish causation on the balance of probabilities.

He therefore dismissed the claim, and the claimants appealed. This appeal was then stayed pending the decision in Griffiths v TUI.

The Appeal Judgement

The first instance judge had accepted the factual basis of the claimants’ account, including when and where they ate, their symptoms, their concerns about the hotel’s food preparation, and previous food audits where concerns were raised. It was accepted that the Claimants had come up to proof, and therefore the issue was whether causation was made out.

The appellants argued that following Griffiths v TUI, the expert evidence on causation was uncontroverted and had to be accepted. It had not been open to the judge to depart from it.

The respondent’s primary position was that the report was not uncontroverted and in any event that the Deputy District Judge had been entitled to depart from the general rule under the fifth exception in Griffiths v TUI, namely that “witnesses’ evidence of the facts may be contrary to the basis on which the expert expressed his or her view in the expert report.”

The appeal judge disagreed with the respondent and allowed the appeal. The Claimants had come up to proof, and therefore the evidence upon which the expert had based her report was sound.

The expert evidence itself was comprehensive and internally logical. It identified all possible causes for the illness and explained why each had been discounted. The report did not refer to particular proportion of guests suffering from illness, but there was no suggestion that the author had been misled as to the number of guests who had fallen ill.

Therefore, the case did not fall into the fifth exception of Griffiths v TUI. The report was not based on facts which were contrary to any witness evidence. The witness evidence upon which the report was based was accepted.

The appeal judge then turned to whether the report itself was ‘controverted’. He noted that it was the defendant who had access to the relevant hotel records regarding the number of cases. It might not have been proportionate to call the expert to give evidence at trial, but the defendant could have put Part 35 questions to the expert regarding the proportion of guests who had fallen ill. They defendants had not put such questions to the expert. As such, the report was uncontroverted. It had only been challenged in submissions. Therefore, the trial judge was not entitled to take his own view about causation.

In short:

‘A trial judge is an arbiter of fact. Having established the facts, he or she applies the law to those facts. In this case the Deputy District Judge went beyond that, in my view. The expert evidence was uncontroverted; it was based on sound and logical reasoning. It did not rely upon any matters which were not factually correct and indeed established at trial. The fifth exception identified by Hodge LJ did not apply’

Comment

This shows the importance, post-Griffiths, of challenging expert evidence in travel sickness claims. In many cases, it will not be proportionate to call the expert to give live evidence. Further, doing so will in many instances carry costs risks for the Defendant.

In this case, the appeal judge repeatedly highlighted the possibility of using Part 35 questions. In lower value claims, this may well be the most viable option for challenging weak expert evidence. However, these will need to be carefully drafted: questions will need to predict and pave the way for submissions at trial. General questions may not challenge the report sufficiently or specifically enough for the judge to consider the report ‘contravened’ for the purposes of specific submissions, and therefore the judge may consider themselves bound to accept the report’s findings.

Even if the report is robustly challenged via Part 35 questions, the expert may simply restate their opinion or sidestep the question. It is highly unlikely any concessions will be made. As a result, at trial claimants may argue that even though the report has been challenged, as there is no other evidence, and the questions have been dealt with (even if the reply is very brief and general), the judge should accept the report.

Further travel sickness cases will no doubt cast light on how effective Part 35 questions are at throwing expert evidence into question.

Source:  https://internationalandtravellawblog.com/2024/07/30/bruder-v-red-sea-holidays-expert-evidence-in-holiday-sickness-claims-post-griffiths-v-tui/