We are delighted to announce that George Orton has qualified as a solicitor through the first-ever sitting of the Solicitors Qualifying Exam Parts 1 and 2, scoring in the top percentile group for both sets of exams. A fantastic achievement and reflective of the huge amount of hard work that George has put in to become a solicitor.
Well done and many congratulations from all of us at Miles Fanning Legal!
We are delighted to announce that Tom Mitchell has joined Miles Fanning Legal as Consultant Solicitor. Tom specialises in commercial and employment law and has spent 14 years advising travel firms ranging from start-ups to household names. He advises on commercial disputes, consumer booking terms and conditions, supplier, and agency agreements along with the surrounding data protection, package travel, ATOL, and consumer protection regulations.
His commercial practice is uniquely complemented by extensive contentious and non-contentious employment work, with a particular emphasis on business protection issues. Tom acts in all areas of employment law in the Employment Tribunal, Employment Appeal Tribunal, and High Court, including claims concerning misuse use of confidential information, breach of restrictive covenants, unfair competition, fraud, unfair dismissal, collective consultation, whistleblowing, bonus disputes, discrimination, TUPE, and cross border issues concerning overseas employees.
Tom joins Miles Fanning Legal to run the commercial and employment law practice and can be contacted on tom.mitchell@milesfanning.co.uk.
We are delighted to announce that Joline Smook has joined Miles Fanning Legal as a Claims Handler.
We are pleased to report on the outcome of a recent trial where Mark Fanning of Miles Fanning Legal and David Boyle of Deans Court, successfully defended a Group Action involving Viral Illness. This claim is very important in terms of liability issues for viral illness claims, particularly considering the COVID-19 pandemic and the risk of any future claims that may arise from outbreaks.
On or around 10 August 2014 a guest vomited in reception on arrival at the 5-star Lindos Imperial Hotel, on the island of Rhodes. The incident was an isolated incident and was dealt with accordingly. In the early hours of 12 August 2014, several guests started to call reception at the hotel to report illness. Within a few hours, it became clear to the hotel management that a full-blown outbreak was taking hold.
The hotel management team activated its outbreak control plan; called in specialist hygiene consultants; the local authority public health team; doctors to help treat guests and extra staff from sister hotels to assist in containing the outbreak. Cleaning and sanitation protocols were implemented. There were hundreds initially taken ill, but within a few days that dropped significantly as the control measures started to take effect.
The local public health team identified Norovirus as the most likely culprit and applauded the hotel for its efforts to control the outbreak.
A number of the customers involved in the outbreak brought claims against the tour operator(s) involved. Miles Fanning Legal, acting on behalf of one of those, defended a group action involving 26 claimants. The claim proceeded to trial in March 2021 and was heard by His Honour Judge Gosnell sitting in the County Court at Leeds.
The 26 claimants included in the action were represented by Sarah Prager (instructed by Farnworth Rose) and presented their case in three ways:
The defence was, in summary:
After hearing evidence from the Claimants, the hotel management team, and experts in the fields of environmental health, microbiology, and gastroenterology, the judge found that the outbreak was not caused by contaminated food and that the hotel staff had not been negligent in the context of exceptionally difficult circumstances.
The claims were dismissed.
This case demonstrates how clearly documented and implemented outbreak response plans can, in cases comparable to this, protect hoteliers (and in turn package organisers) from legal liability. This is fundamental in group actions where financial exposure on a finding of liability could be significant.
As an organiser, you should ensure that your accommodation suppliers do the following:
It is important, where you are using suppliers to provide accommodation, that you have oversight of your suppliers’ processes and actions during an outbreak and that you have written contracts in place to support that. What made a real difference to the outcome, in this case, was the co-operation from the Hotel, enabling us to work as a cohesive team with the hotel, their lawyers, the tour operator, and insurers. We were able to investigate the claim at a very early stage and secure extensive documentation and witness evidence, with which to defend the claims.
As a tour operator, you also need to have contractual indemnity and insurance provisions in place with your suppliers, to support any recovery action should anything go wrong. With limited pandemic cover available currently for Professional Indemnity and Public Liability, it is even more vital for tour operators and their accommodation suppliers to get this right and to revisit their contracts to make sure they are fit for purpose or there could be significant financial exposure.
Whilst this case relates to Norovirus, at some point, there is a risk that the industry may start to see Covid related claims as we move towards unlocking overseas travel again. There are many similarities in terms of the prevention and control measures for both viruses. Adhering to the areas mentioned above could also prevent you from being exposed to financial risk if you are faced with a claim following a COVID-19 outbreak, as a claimant will need to prove negligence to succeed in any claim.
If you would like to discuss this case further or would like support with your supplier contracts, please do not hesitate to contact:
Mark Fanning
Managing Director (Solicitor)
Tel: 0203 036 0741
Mobile: 07454 201540
Email: mark.fanning@milesfanning.co.uk
Tour operators and cruise ship operators have a potential financial exposure if a customer contracts COVID-19 whilst on holiday. It is almost certain that we will see claims being brought against tour operators or cruise ship operators, by customers who allege that they contracted COVID-19 whilst staying in a hotel or on a cruise ship, where there are allegations of failings on behalf of tour operators, cruise ship operators or their suppliers.
WHAT IS THE LEGAL BASIS FOR POTENTIAL LIABILITY?
Any potential Claimant will need to demonstrate that the exposure to virus has occurred at the accommodation provided as part of the holiday. Where sophisticated track and trace systems are in place that might prove straightforward. We have seen several recent examples of defined outbreaks where cruise ships, workplaces and universities have been identified as the centres for outbreaks. Whilst customers travel to and from accommodation and often leave the accommodation during the holiday and this provides for other possible sources of exposure, the courts look at such matters on the balance of probabilities. As such, a well-publicised outbreak at a hotel/ship is likely to attract the attention of claimant law firms.
If a claimant proves a failure to take reasonable care by the accommodation supplier that has caused his/her illness, Regulation 15 of the Package Travel Regulations 2018 extends the tour operator’s liability to cover the failings of its suppliers, and liability will attach from breach of contractual duty. Ultimately, as a tour operator or cruise ship operator, you are heavily reliant on your supplier’s actions during any illness outbreak or to avoid an outbreak occurring in the first place.
With regards potential claims relating to COVID-19, much can be drawn from an analysis of previous legal cases relating to Norovirus to assess the likely basis on which future claims may be brought.
Norovirus has long been a recognised risk associated with cruise ships, which is why the cruise industry was many years ahead of other leisure sectors in terms of outbreak management. As far back as 2007, official guidance was published for cruise ship operators on controlling Norovirus outbreaks, which was drawn from industry best practices at the time. Some core measures such as quarantine, hand hygiene and monitoring illness numbers are now the topics of daily conversation. This week we have seen the publication of new Covid 19 guidance for cruise ship operators from the UK Chamber of Shipping arising from a collaborative approach from operators looking at best practice.
Hotels have, of course, seen their fair share of Norovirus outbreaks over the years. Whilst most hotels have sophisticated outbreak management plans in place, tour operators have often still been involved in defending expensive group action litigation. Whilst the legal liability regimes for cruise ship operators and tour operators are very different, some of the fundamental principles are the same or similar.
There are two important Norovirus cases which demonstrate the way in which COVID-19 cases may be approached by the courts in future: Nolan & Others v TUI UK Ltd [2016] 1 Lloyds Rep 211 and Swift & others v Fred Olsen Cruise Lines (2015) HHJ Robert Owen QC unreported.
In Nolan, which was a win for the cruise line, the court concluded that there was no liability largely due to two key factors. (1) there was an adequate outbreak management plan in place, and (2) that the outbreak management plan was implemented with due care and skill.
On the other hand, in Swift, which was a loss for the cruise line, the court also found that the outbreak management plan itself was adequate (although there was some debate about its complexity). However, despite the huge amount of supporting documentary evidence produced by the cruise ship operator, the court found there had been a failure to adequately implement the plan, which had in turn materially increased the risk of infection of those on board. There were conflicting documents from the ship about implementation of their outbreak plan. The Court of Appeal declined to overturn that decision. Liability attached.
These two cases highlight the importance of documentation, clarity of outbreak management plans and the implementation of the plan by the management team. Having a hugely detailed and complicated outbreak management plan is of no benefit if the staff implementing it do not understand it, and/or if the compliance with the plan is not appropriately documented.
As a tour operator or cruise ship operator, if you are to successfully defend a claim, you will need to show that your suppliers had a good outbreak management plan in place, and they implemented the plan properly. You then need to be able to prove that it was implemented properly. If your business (or its suppliers) falls at any one of these hurdles, it is likely to be more difficult to successfully defend a claim.
However, even with the best measures in place, there can be no guarantee that customers will not be infected as this is simply the nature of a highly infectious viral illness, whether it is Norovirus or Coronavirus. That was expressly recognised by the judge in Nolan. The duty owed is not an absolute one but, rather, whether reasonable steps have been taken to reduce the risk of exposure to the illness as far as is reasonably practicable. The Claimant in any given case still needs to prove the breach of contract, failure to take reasonable care &/or negligence.
We have seen attempts by those representing Claimants to circumvent that approach by trying to demonstrate, with expert evidence, that Norovirus originated from food served in the hotel. The purpose of that tactic is to seek to take advantage of the regime of strict liability laid down in Wood v TUI Travel plc t/a First Choice [2017] EWCA Civ 11. (Note that case does not apply to liability on cruise ships). Studies have shown that the risk that food presents as a transmission route for Norovirus is quite low. Cold food theoretically presents as a contact surface area, but the most common transmission routes are still person to person whether directly or indirectly via contaminated environments or surfaces. The burden of proving all that rests with the claimant. Of course, at this stage, there are no studies relating to COVID-19 on this subject and it is a different type of virus. It may be an argument that is deployed by claimants at some stage in the future if there are studies which support that possible transmission route.
WHAT IS THE LIKELY VALUE OF THESE CLAIMS?
This to me is the most concerning feature that distinguishes a potential financial exposure to a claim for COVID-19 as opposed to that of a viral gastric illness claim. Whilst the vast majority of those infected with COVID-19 appear to have mild symptoms or no symptoms, the risk of an individual claim of significant value is higher. We have seen a small percentage of high value respiratory illness claims resulting from exposure to legionella bacteria where long recovery periods, long periods in hospital on ventilation and in some cases sadly death have meant that claim value is significant. COVID-19 patients in the high-risk categories exposed whilst staying in accommodation may generate high value claims and you take your victim as you find them.
The risks of financial exposure to group actions will, really, only apply to those companies with large numbers of customers in one location at any one time but the one-off large losses are difficult to predict and could expose any business to significant losses.
HOW CAN YOUR BUSINESS PROTECT ITSELF FROM CLAIMS?
There are several ways your business and its suppliers can mitigate the risks of claims being made by customers arising from a coronavirus (or any other) outbreak. As with all risk, the extent to which you will implement any of these will depend on the nature of your business, customer demographic, your relationships with customers, and suppliers and the economics of any mitigating factors. We would recommend that you consider each supplier’s approach to the following:
We fully appreciate that there are few easy and straightforward answers to any of these questions and operational challenges abound. Your approach with your suppliers will very much be impacted by your ability and willingness, as a business, to accept an increased amount of risk (financial or reputational) should an outbreak occur involving your customers.
From a practical perspective, there are several potential avenues for your business to help with managing this risk:
It is important to note that, if your business does not have insurance to cover claims arising from COVID-19, you may still have claims made against you. We have extensive experience in defending these types of claims on behalf of tour operators, cruise operators and their insurers.
If you would like to discuss topic further please contact Mark Fanning mark.fanning@milesfanning.co.uk
Mark is the owner and Managing Director of Miles Fanning Legal. He has almost 30 years of experience as a solicitor. He specialises in handling complex international large loss claims and marine casualty claims, most of which are significant high-profile claims involving complex issues of law and jurisdiction. Mark holds a Highfield International – Supervising Food Safety Level 3 qualification and has considerable experience in defending group action claims involving food safety and hygiene issues and is no stranger to a ship’s galley/kitchen. He has also been involved in defending claims involving fraud, fundamental dishonesty and gastric illness.
MFL – COVID-19 Liability – Will Your Business Be Exposed – 14 October 2020
