While we wait to see if TUI will be granted permission to appeal the case of Griffiths, the world still keeps on turning and claims are being dismissed even where the medical evidence has not been controverted in the "Griffiths sense".
In Rossell v TUI heard on 9th October at Lancaster County Court, David Calvert was successful in getting the claim dismissed even though he was unable to challenge the Claimants medical evidence by cross examination of the experts.
This was a case where the Claimant had a confirmed pathogen of salmonella after being ill whilst on holiday in Turkey. He relied on two experts (a GP and a Gastroenterologist) who both supported him on the issue of causation. Part 35 questions had been put by the Defendants, but no application was made after Griffiths to call the experts for cross-examination and the trial was not adjourned for that purpose. The claim was pleaded up to £25,000.
The Claimant was a poor historian putting the date of onset of illness as anywhere from day 3 of the holiday to day 6 of the holiday depending on which document was read.
He also failed to tell each expert that he ate eggs for breakfast in the airport before departure.
The experts put the incubation period for the pathogen at up to 72 hours.
Given the unreliability of the Claimants evidence as to onset and the fact that he failed to tell his experts about his earlier consumption of eggs (along with other matters where he was inconsistent) the judge took the view that the factual basis upon which the experts reports were predicated had been fatally undermined and therefore he could not prove causation. The claim was dismissed.