Consumer: Wood & Wood v TUI Travel PLC T/A First Choice [2017] EWCA Civ 11

Can damages be recovered under the Supply of Goods and Services Act 1982 (the Act) for food poisoning?

The facts

Mr and Mrs Woods booked a two week “all inclusive” holiday to the Dominican Republic with First Choice (the package holiday provider), who provided/arranged return flights, transfers to the hotel, and accommodation together with food and drink.

The judge at first instance accepted that the Woods only consumed food and drink provided by the hotel, mostly eating from the buffet. Mr and Mrs Wood both contracted gastroenteritis, which the judge agreed was the result of eating or drinking contaminated food or drink at the hotel. The judge concluded that the supply of food and drink to the Woods constituted a contract for the transfer of goods for the purposes of the Act. He held that the Woods could claim damages pursuant to the implied condition of “satisfactory quality” in s.4(2) of the Act because the food or drink was contaminated and so not of satisfactory quality. In contrast, if the provision of the food had only been a service, then under s.13 the only implied term is one of reasonable care and skill. Mr Wood was awarded damages of £16,500 and Mrs Wood £7,500.

First Choice appealed the decision, arguing that the implied condition in s.4(2) of the
Act formed no part of the contract on the basis that:

• the contract was for the supply of services and could not also have been for the transfer of goods, and/or
• no property in the goods was transferred by First Choice to the Woods because the food and drink remained the property of the hotel until the moment it was placed in its customers’ mouths, when it was destroyed.

The decision

The Court of Appeal rejected First Choice’s appeal, finding that:

• the contract between First Choice and the Woods was a contract for both the supply of services and the supply of goods (which is a common occurrence, eg taking a car to be serviced and having replacement parts fitted)
• in the absence of any express agreement to the contrary, when a customer orders food or drink, property in the food or drink transfers to them when it is served
• the food and drink supplied to the Woods were goods in which it was agreed that property would be transferred
• those goods were of not of satisfactory quality because they were contaminated.

The Court of Appeal acknowledged First Choice’s concern that package tour operators should not 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”. However, they did not accept the floodgates argument, given the need for claimants to prove causation, ie the need to prove that an illness is a consequence of food and drink which was not of a satisfactory quality (as opposed to having some other cause).

Why is this important?

This case serves as a reminder that food and drink are categorised as goods for the purposes of the Act, and that consumers are protected by the implied condition of “satisfactory quality”. So, tour operators are liable if their customers become ill from consuming contaminated food at one of their hotels

Any practical tips?

The Court of Appeal took a dim view of First Choice’s attempt to argue that property in the food and drink did not transfer to the customers, finding that such submissions of a “metaphysical nature might surprise the many thousands of customers who enjoyed breakfast, perhaps with orange juice, tea or coffee, in their hotels or guest houses…”. One senses that arguments like this, which have an air of unreality about them, are unlikely to gain much traction in the courts – particularly in consumer protection cases.