WOOD AND ANOTHER V TUI TRAVEL PLC T/A FIRST CHOICE

[2017] EWCA Civ 11, Court of Appeal (Civil Division), The President of the Queen's Bench Division (Sir Brian Leveson), Lord Justice Mcfarlane and Lord Justice Burnett, 16 January 2017

Supply of goods and services - Diner on all-inclusive holiday suffering acute gastroenteritis - Whether property in goods transferred when meal served - Implied term of satisfactory quality - Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992 No 3288 - Supply of Goods and Services Act 1982, section 4(2)

Mr and Mrs Wood sought to recover damages pursuant to the implied condition in section 4(2) of the Supply of Goods and Services Act 1982 for acute gastroenteritis suffered whilst staying at a hotel in the Dominican Republic in 2011 on an all-inclusive holiday contracted with TUI Travel plc trading as First Choice. The implied condition in section 4(2) provided that where property in goods is transferred pursuant to a contract in the course of business, the goods must be of "satisfactory quality". Damages had been awarded at first instance, the amounts of which were not in dispute. The judge had found as a fact that both claimants suffered the illness as a result of eating or drinking contaminated fare at the defendant's hotel. This was the appeal of TUI on the basis that the contract did not contemplate that property in the food and drink would be transferred to Mr and Mrs Wood. On the appellant's view, the consumption of food and drink provided at the hotel involved no transfer of property in that food or drink. A claim under the Package Travel Regulations had failed before the judge because the claimants had not succeeded in establishing fault on the part of TUI; a finding that was not under appeal. Nor was it disputed that the food was not of "satisfactory quality". The appellant's argument was that the contract was one for supply of services, not goods, so that the duty was to provide services with reasonable care and skill as per section 13 of the 1982 Act. When the food was consumed by the customers, it was destroyed and there was no transfer of property (PST Energy 7 Shipping LLC v OW Bunker Malta Ltd [2016] 1 Lloyd's Rep 589).