It is unfortunate that many holiday makers find their well-earned break ruined by suffering from food poisoning. Recently there were reports of approximately 50 holiday makers falling ill with suspected gastroenteritis at a hotel in Playa d’en Bossa, Ibiza.
If you have been affected by food poisoning whilst on holiday you may be able to make a compensation claim. Under the Package Travel Regulations 1992 your UK tour operator has a responsibility to provide holidays to a reasonable standard. If your holiday is not to a reasonable standard and your operator breaches the regulations you can make a claim for compensation.
By way of explanation, the term “package” means the pre-arranged combination of at least two of the following when sold at an inclusive price over a period of more than 24 hours or includes overnight accommodation:
• Transport (i.e. flights)
• Accomodation (i.e hotel room)
• Other tourist services (i.e excursions)
Under these regulations you have three years to bring your claim, from the date of falling ill. If you did not book your holiday as part of a package it may still be possible to claim directly against the hotel. This can be more difficult as the time limit you have for bringing your claim varies from country to country and local standards will apply.
The following steps are a guide to assist you in understanding the process of making a claim for compensation for food poisoning contracted whilst on holiday abroad and focuses on claims brought against UK tour operators under the Travel Regulations 1992:
1. Finding the right lawyer
Choosing the right lawyer for you is probably one of the most important decisions you will make during this process.
This is a complex area of law with many obstacles (particularly if you are bringing your claim directly against a foreign hotel or other organisation). The success of your case and the amount of compensation you recover will depend on the lawyer you choose. When choosing a lawyer, you may want to consider the following:
- Does your lawyer have the skill and expertise in this area of law?
- Does your lawyer have a proven track record?
- What do their previous clients say about them? Ask to see written testimonials
- Look at their website for further information
- Are they members of ‘APIL’ (Association of Personal Injury Lawyers). Do they hold other accreditation?
- Is your lawyer open and honest about the costs involved in bringing your claim?
- Are they a claims company?
2. Initial contact/first meeting
At your initial meeting your lawyer will take a full account from you as to the circumstances surrounding your illness so that they can assess any potential claim you may have and determine who is responsible for your illness. In particular your lawyer will want details of the following:
- Travel dates
- Booking details
- What food and drink you ate and from where in the days previous to the onset of your illness
- Details of any other holiday makers who became ill in the same resort
- Details of your travel insurance. This is important as it may be that you can fund your potential claim under the terms of your travel insurance.
3. Evidence gathering
If your lawyer believes you have a claim against your tour operator he or she will start the evidence gathering process. This may include taking statements from potential witnesses (family members or fellow holiday makers), or searching internet sites that may have reports of other cases of food poisoning at the particular resort, such as trip advisor (always a good source of information!)
Your medical records may be obtained from your GP or any hospital you attended both in England in abroad. This will all be done with your prior approval and you will be kept fully informed at all times. Once your records are received your lawyer will read them carefully to further assess and progress your claim.
4. Letter of claim and response
Having obtained all the appropriate evidence in your case your lawyer will prepare a ‘letter of claim’ to the tour operator who then becomes known as the ‘defendant’. The defendant is then allowed a three-week period to acknowledge receipt of your letter of claim and a further three months to investigate your claim.
Unfortunately, it is not uncommon for defendants to say that they need further time to investigate as they are reliant from information from a foreign source.
If the defendant denies that they are to blame for your illness your lawyer will look at their reasons and the documents they provided in support. Your lawyer will also ask you for any comments you may have on the defendant’s response.
5. Medical evidence and financial losses
During the course of your claim you will be asked to meet with an independent medical expert (most likely a Consultant Gastroenterologist) who will prepare a detailed report dealing with the background to your claim, review of your medical records, diagnosis and prognosis.
The expert will also say whether he believes your illness was as a result of your stay at the resort. The report is an important document as it will allow your lawyer to assess the amount of compensation you should recover.
It is also possible to claim compensation for ‘out of pocket’ expenses such as medical treatment, loss of earnings (if you were unable to work as a result of your illness), care and loss of enjoyment of your holiday.
6. Negotiation to possible settlement
Your lawyer will send your medical report (approved by you) and a note of your financial losses to the defendant and invite an offer of settlement. Negotiation will then take place and it is hoped that your claim may be settled at this stage.
7. Court proceedings
If it is not possible to reach agreement as to the amount of compensation you should receive or the defendant continues to deny they are to blame for your illness it may be necessary to register your claim at court. This does not mean that your case will not be settled out of court. It is still possible to negotiate prior to the hearing of your claim.
If your claim does reach trial you will be represented by a barrister and fully supported by your solicitor. The judge will decide on whether the defendant is to blame (if relevant) and the amount of compensation you should receive.
The writer would point out that no two claims are the same and the above is simply a guide.