PI Brief Update

FREE BOOK CHAPTER: What Is a Holiday Sickness Claim? (from 'A Practical Guide to Holiday Sickness Claims, 2nd Edition' by Andrew Mckie & Ian Skeate)

08/12/17. The majority of holiday sickness claims are of course likely to occur outside of the jurisdiction, but are likely to fall under the Package Travel Regulations 1992. However, before looking at the law and likely causes of action, it is necessary for one to look at what actually constitutes a holiday illness. For example, a client may present a set of facts saying that they have travelled to Egypt and suffered diarrhea and abdominal pains for 4 days out of a 5 day holiday, but what was the actual cause of the sickness in the first instance?

Food Poisoning

The National Health Service website says “Food poisoning is an illness caused by eating contaminated food. It's not usually serious and most people get better within a few days without treatment. In most cases of food poisoning, the food is contaminated by bacteria, such as salmonellaor Escherichia coli (E. coli), or a virus, such as the norovirus”.

Symptoms

There are a number of types of symptoms one may look out for in a food poisoning (holiday sickness case). The NHS website says:-

“The symptoms of food poisoning usually begin within one to two days of eating contaminated food, although they may start at any point between a few hours and several weeks later.

The main symptoms include:

• feeling sick (nausea)

• vomiting

• diarrhoea, which may contain blood or mucus

• stomach cramps and abdominal pain

• a lack of energy and weakness

• loss of appetite

• a high temperature (fever)

• aching muscles

• chills”

Therefore a starting point when taking instructions from a client may be to have a checklist of these symptoms and ask the claimant at the outset of the case, whether they have experienced such symptoms. This will certainly be useful for the claimant’s witness statement later and will also form the basis of instructions to the medical expert.

Treatment

The National Heath Service provides the following guidance concerning treatment:-

“Most people with food poisoning recover at home and don't need any specific treatment, although there are some situations where you should see your GP for advice.

Until you feel better, you should rest and drink fluids to prevent dehydration. Try to drink plenty of water, even if you can only sip it.

Eat when you feel up to it, but try small, light meals at first and stick to bland foods – such as toast, crackers, bananas and rice – until you begin to feel better.

Oral rehydration solutions (ORS), which are available from pharmacies, are recommended for more vulnerable people, such as the elderly and those with another health condition”

It goes on to say about GP treatment:-

“You should contact your GP if:

• your symptoms are severe – for example, if you're unable to keep down any fluids because you are vomiting repeatedly

• your symptoms don't start to improve after a few days

• you have symptoms of severe dehydration, such as confusion, a rapid heartbeat, sunken eyes and passing little or no urine

• you're pregnant

• you're over 60

• your baby or young child has suspected food poisoning

• you have a long-term underlying condition, such as inflammatory bowel disease (IBD), heart valve disease, diabetesor kidney disease

• you have a weak immune system – for example, because of medication, cancertreatment or HIV

In these situations, your GP may send off a stool sample for analysis and prescribe antibiotics, or they may refer you to hospital so you can be looked after more closely”

In the context of a holiday illness case, at the outset of the case it will be important to clarify with the Claimant:-

1. Did the Claimant seek treatment abroad? If so, obtain the records?

2. Did the Claimant attend the GP on return to the UK? If so, obtain the records?

3. Did the Claimant obtain any treatment or medication from a pharmacy? If so, obtain the records or receipts?

Investigating a Holiday Sickness Case – Initial Questions of the Claimant

How is food contaminated? The NHS website sets out:-

“Food can become contaminated at any stage during production, processing or cooking. For example, it can be contaminated by:

• not cooking food thoroughly (particularly meat)

• not correctly storing food that needs to be chilled at below 5C

• leaving cooked food for too long at warm temperatures

• not sufficiently reheating previously cooked food

• someone who is ill or who has dirty hands touching the food

• eating food that has passed its "use by" date

• the spread of bacteria between contaminated foods (cross-contamination)

Foods particularly susceptible to contamination if not handled, stored or cooked properly include:

• raw meat and poultry

• raw eggs

• raw shellfish

• unpasteurised milk

"ready-to-eat" foods, such as cooked sliced meats, pâté, soft cheeses and pre-packed sandwiches”

Therefore the following questions need to be asked of the Claimant at the outset of the case:-

1. Did the Claimant eat or drink in the hotel? If so what and when?

2. What food or drink in particular does the claimant believe this caused the illness and on what date and where was it served and/or consumed?

3. Did the claimant eat outside the hotel before they got ill or on an excursion? (A weak case may be a Claimant that had eaten outside the hotel prior to becoming ill as this leads to other possible sources of contamination).

4. Did the claimant eat outside the hotel after they became ill? (In which case this may not be so much an issue).

5. Did the Claimant ever notice the smell of food that had ‘gone off’?

6. Did the Claimant eat in particular food that appeared not to have been cooked properly, especially meat or fish products that should been chilled?

7. Did the food appear to have been reheated day after day?

8. Had foods such as salads been washed?

9. Was the food in the hotel left uncovered? For example, in a buffet? Over what period of time was the food left uncovered?

10. In particular was the food left uncovered in the heat? For example, outside service areas? What temperatures on average did the claimant experience at these times?

11. Was the food in the hotel that should have been chilled, for example meat, fish or salad products, left out in un-chilled areas, for example in a buffet?

12. If food should have been chilled – were the chilled cabinets working or were they switched off?

13. Was food left in exposed areas for long periods of time? If so, how long, and over what period of time did the food appear to be replaced?

14. Did staff appear to have ‘dirty’ hands, or did the claimant see staff handling food wearing gloves or were there notices requiring staff to wash their hands after serving food?

15. Were guests asked to wash their hands or were antibacterial hand gels provided in food service areas? (especially if there was already a known outbreak of a virus or infection).

16. If other guests were sick – were they confined to their rooms or asked not enter the restaurants/ food service areas?

17. Did the cutlery and serving implements appear to be clean?

18. Were there separate cutlery and serving implements for different types of food, such as meat and fish?

19. Did the restaurant/ food serving areas appear to be clean?

20. In particular, was anyone cleaning the floors, tables and/or services areas on a regular basis, and if so, how often?

21. Did any of the food appear to be past its sell by date or discoloured?

22. Were drinks served with ice or local water from non-bottled sources?

23. Did the claimant see insects, birds and/or animals around the food service areas?

24. Did the hotel display notices in the food service areas advising guests not to use hands to handle food?

25. If guests were handling food with hands (as opposed to implements) – were staff on hand to advise guests not to do this?

26. Did any of the guests also suffer illness at the same time? If so, does the claimant have details?

27. Did any other members of the claimant’s family or friends sustain a similar infection or illness?

Types of Infection

The NHS website in relation to food poisoning sets out the various types as follows:-

Types of infection

Food contamination is usually caused by bacteria, but it can also sometimes be caused by viruses or parasites. Some of the main sources of contamination are described below.

Campylobacter

In the UK, campylobacter bacteria are the most common cause of food poisoning. The bacteria are usually found on raw or undercooked meat (particularly poultry), unpasteurised milk and untreated water.

The incubation period (the time between eating contaminated food and the start of symptoms) for food poisoning caused by campylobacter is usually between two and five days. The symptoms usually last less than a week.

Salmonella

Salmonella bacteria are often found in raw or undercooked meat, raw eggs, milk, and other dairy products.

The incubation period is usually between 12 and 72 hours. The symptoms usually last around four to seven days.

Listeria

Listeria bacteria may be found in a range of chilled, "ready-to-eat" foods, including pre-packed sandwiches, cooked sliced meats and pâté, and soft cheeses (such as Brie or Camembert).

All of these foods should be eaten by their "use-by" dates. This is particularly important for pregnant women, because a listeria infection (known as listeriosis) in pregnancy can cause pregnancy and birth complications, and can result in miscarriage.

The incubation period can vary considerably, from a few days to several weeks. The symptoms will usually pass within three days.

Escherichia coli (E. coli)

Escherichia coli, often known as E. coli, are bacteria found in the digestive systems of many animals, including humans. Most strains are harmless but some can cause serious illness.

Most cases of E. coli food poisoning occur after eating undercooked beef (particularly mince, burgers and meatballs) or drinking unpasteurised milk.

The incubation period for food poisoning caused by E. coli is typically one to eight days. The symptoms usually last for a few days or weeks.

Shigella

Shigella bacteria can contaminate any food that has been washed in contaminated water.

Symptoms typically develop within seven days of eating contaminated food and last for up to a week.

An infection caused by Shigella bacteria is known as bacillary dysentery or shigellosis.

Viruses

The virus that most commonly causes diarrhoea and vomiting is the norovirus. It's easily spread from person to person, through contaminated food or water. Raw shellfish, particularly oysters, can also be a source of infection.

The incubation period typically lasts 24-48 hours and the symptoms usually pass in a couple of days.

In young children, the rotavirus is a common cause of infection from contaminated food. The symptoms usually develop within a week and pass in around five to seven days.

Parasites

In the UK, food poisoning caused by parasites is rare. It's much more common in the developing world.

Parasitic infections that can be spread in contaminated food include:

• giardiasis – an infection caused by a parasite called Giardia intestinalis

• cryptosporidiosis – an infection caused by a parasite called Cryptosporidium

• ameobiasis – a type of dysenterycaused by a single-cell parasite (ameoba) called Entamoeba histolytica (this is very rare in the UK)

The symptoms of food poisoning caused by a parasite usually develop within 10 days of eating contaminated food, although sometimes it may be weeks before you feel unwell.

If left untreated, the symptoms can last a long time – sometimes several weeks or even a few months”

Norovirus

Given that many holiday sickness claims relate solely to Norovirus, this subject deserves an entire section on its own. These claims are often associated with cruise ships. Again the NHS website sets out:-

“Symptoms of norovirus

The symptoms of norovirus are very distinctive.

You're likely to have norovirus if you experience:

• suddenly feeling sick

• projectile vomiting

• watery diarrhoea

Some people also have a slight fever, headaches, painful stomach cramps and aching limbs.

The symptoms appear one to two days after you become infected and typically last for up to two or three days”.

How is norovirus spread?

Norovirus spreads very easily in public places such as hospitals, nursing homes and schools.

You can catch it if small particles of vomit or poo from an infected person get into your mouth, such as through:

• close contact with someone with norovirus – they may breathe out small particles containing the virus that you could inhale

• touching contaminated surfacesor objects – the virus can survive outside the body for several days

• eating contaminated food – this can happen if an infected person doesn't wash their hands before handling food

A person with norovirus is most infectious from when their symptoms start until 48 hours after all their symptoms have passed, although they may also be infectious for a short time before and after this.

You can get norovirus more than once because the virus is always changing, so your body is unable to build up long-term resistance to it.

Preventing norovirus

It's not always possible to avoid getting norovirus, but following the advice below can help stop the virus spreading.

• Stay off work or school until at least 48 hours after the symptoms have passed. You should also avoid visiting anyone in hospital during this time.

• Wash your hands frequently and thoroughly with soap and water, particularly after using the toilet and before preparing food. Don't rely on alcohol hand gels, as they do not kill the virus.

• Disinfect any surfaces or objects that could be contaminated. It's best to use a bleach-based household cleaner.

• Wash any items of clothing or beddingthat could have become contaminated separately on a hot wash to ensure the virus is killed.

• Don't share towels and flannels.

• Flush away any infected poo or vomitin the toilet and clean the surrounding area.

• Avoid eating raw, unwashed produceand only eat oysters from a reliable source, as oysters can carry norovirus”.

Salmonella

From practice, the majority of holiday sickness claims that emerge from holiday resorts (Mexico, Egypt etc.) relate to uncooked meat and fish in all-inclusive hotels from buffet food. In particular this is likely to be from Salmonella poisoning. The NHS website sets out in this regard:-

“What are the symptoms and how long do they last?

Symptoms include diarrhoea, stomach crampsand sometimes vomitingand fever.

On average, it takes from 12 to 72 hours for the symptoms to develop after swallowing an infectious dose of salmonella.

Symptoms usually last for four to seven days and most people recover without treatment.

But if you become seriously ill, you may need hospital care because the dehydrationcaused by the illness can be life-threatening.

Who gets salmonella?

Anyone can get salmonella, but young children, the elderly and people who have immune systems that are not working properly (including people with cancer, AIDS or alcoholism) have a greater risk of becoming severely ill.

How do you get infected with salmonella?

You usually get salmonella by eating contaminated food. Salmonella bacteria live in the gut of many farm animals and can affect meat, eggs, poultry and milk. Other foods like green vegetables, fruit and shellfish can become contaminated through contact with manure in the soil or sewage in the water.

Contamination is also possible if raw and cooked foods are stored together. Most tortoises and terrapins and other pet reptiles can also carry salmonella. Dogs, cats and rodents can occasionally become infected.

It is impossible to tell from its appearance whether food is contaminated with salmonella. It will look, smell and taste normal.

Salmonella can be spread from person to person by poor hygiene, by failing to wash your hands properly after going to the toilet, or after handling contaminated food”

What to do in Practice

It will be important to clarify with the Claimant the following at the outset of the claim:-

1. Whether the Claimant was advised in resort as to what infection/illness they suffered?

2. Whether the Claimant was advised on their return home at the GP what infection/illness they suffered?

3. Whether a stool or other sample was taken to analyse this?

Other Matters to Consider in Initial Instructions

1. Did the client report the illness to an in resort / representative to the hotel? If so on what date and who to? (obtain a copy of the form).

2. Did the hotel put any measures into place once this was reported? If so, what were they and on what date were they implemented?

3. What were the exact dates of the claimant’s illness or first symptoms? This will be crucial as to the date of knowledge and limitation.

4. What were the dates of the holiday? (If the claimant became ill on the first date of the holiday or very end of the holiday, consider whether the claimant could have sustained the infection/ bacteria from for example something they ate in the airport).

5. Did the claimant swim in the sea or pool? Was this a possible source of the infection?

6. Did the claimant fill out a ‘Customer Satisfaction Form’ including as part of what the tour operator describes as a competition or to be in with a chance of winning a prize? If so, was that form in any way inconsistent with the claim now being made and, if so, is there any reasonable explanation for this?

Conclusions

Generally, it is argued that the majority of holiday sickness cases are valid claims. The main risk to these cases will be the possibility of other sources of infection/bacteria. For example, if the claimant had eaten outside the hotel, even for one meal, prior to becoming ill, the Defendant is likely to argue this could be an alternative source of infection. This may not necessarily be fatal to the claim though, for example if the Claimant can adduce evidence that suggests that the hygiene generally was poor in food preparation areas or other people in the same hotel had suffered a similar fate. However, it is clear that detailed instructions will be required at the outset of these cases to clarify these issues and the potential prospects of success.

Key Points

1. Become familiar with the various medical conditions, their symptoms and terminology. Knowing the incubation periods and the usual recovery periods can help greatly in assessing the prospects of a claim as well as what evidence will be required.

2. Remember that the vast majority of claimants in holiday sickness claims will have recovered in a relatively short space of time. It is, therefore, particularly important to obtain as much detail from the client as early as possible before memory fades. A comprehensive and well-designed Questionnaire will increase the prospects of success of your claims as well as assisting in assessing the strengths and weaknesses of the claim. This Chapter should have enabled you to draft an effective Questionnaire.

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