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Cite as:  EWHC 2268 (QB)
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High Court Appeal Centre Birmingham
On appeal from the County Court of Birmingham
Order of HHJ Truman dated 4 September 2019
County Court case number: D28YM263
Appeal ref: BM90173A
Birmingham Appeal Centre
Priory Courts, 33 Bull Street,
Birmingham B4 6DS
B e f o r e :
| MR PETER GRIFFITHS
|- and -
|TUI UK LIMITED
Mr Howard Stevens QC and Mr Sebastian Clegg (instructed by Kennedys Law) for the Defendant/Respondent
Hearing dates: 23 July 2020
Crown Copyright ©
Covid-19 Protocol: this judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for hand-down is deemed to be at 10.30am on 20 August 2020.
MR JUSTICE MARTIN SPENCER :
"a) The Claimant is required to prove when, where and under what circumstances he fell ill and as to the means by which any such illness was transmitted to him.
b) Gastric illness is a common feature of overseas travel. The possible causes of such illness are numerous, including overindulgence, unfamiliar temperatures, excess sun and viral illness. It is denied that the hotel is implicated in the contraction of any such illness as the Claimant may be able to establish."
"4a) The defendant has permission to obtain a report of a gastroenterologist, whose identity is to be provided by 27 February 2018. The report is to be served by 29 June 2018.
10) The claimant has permission to obtain a report from Professor Pennington, consultant microbiologist dealing with causation with such report to be served no later than 4pm on 15 August 2018.
11) The defendant has permission to obtain a report from Dr Gant consultant microbiologist dealing with causation with such report to be served no later than 4pm on 15 August 2018.
12) The aforementioned gastroenterologist and microbiologists to meet and prepare joint statements of areas of agreement and disagreement by 4pm 19 September 2018."
The Defendant did not, however, serve a report from a gastroenterologist within the time specified, nor did it serve a report from its nominated microbiologist, Dr Gant. On 5 September 2018, the Defendant's solicitors, Kennedys, wrote to the Claimant's solicitors, Irwin Mitchell, in the following terms:
"We confirm we do not intend to rely on expert evidence from a microbiologist in this case."
Irwin Mitchell immediately served the report of Professor Pennington on the Defendant. On 29 October 2018, upon the Defendant's application for permission to rely on a report from a gastroenterologist, and for relief from sanction, that application was refused with the result that the Defendant was left without any expert evidence for the purposes of the trial.
The evidence before HHJ Truman
1) To comment on the chronology of events,
2) To provide a detailed commentary on the issue of gastric illness and any breaches in the health and safety procedures in place at the hotel,
3) Confirm as to whether on the balance of probabilities the illnesses in question were caused as a result of staying at the hotel in question and a breakdown in the health and hygiene practises at the hotel.
"2. Peter Griffiths stayed at the Aqua Fantasy Aquapark Hotel, Turkey, on an all-inclusive basis from 2 August – 16 August 2014. He fell ill on the night of 4 August with diarrhoea. His symptoms were severe for 48 hours. They eased but returned after seven days. He was admitted to hospital on 13 August. His blood pressure was high and he was dehydrated. He was discharged on 15 August. His stools were tested in the Turkish hospital, Ada Private Hospital. According to the discharge report of 16 August 2014 by Dr Yusuf Tuna, entamoeba histolytica cysts and Giardia intestinalis was said to be seen on microscopy, and rotavirus, adenovirus, E. histolytica and Giardia antigen tests were positive. …
3. I do not think that Peter Griffiths had amoebic dysentery caused by Entamoeba histolytica. Entamoeba cysts (which were found in his stools) are not diagnostic on their own because they cannot be distinguished routinely from the far commoner cysts of the harmless Entamoeba dispar. The onset of amoebic dysentery is usually gradual or intermittent; acute colitis is uncommon. Vomiting is not a feature and the diarrhoea is almost always bloody. Cases of amoebic dysentery most commonly have an incubation period of two to four weeks. None of these features lend support to a diagnosis of amoebic dysentery contracted in Turkey in Peter Griffiths' case. I consider it to be statistically improbable that he had been infected simultaneously with Giardia, adenovirus and rotavirus. I note that a microscopic diagnosis of Giardia is not straightforward. However it is much more likely as a cause of gastroenteritis in this case then any of the other pathogens.
4. The possibility cannot be ruled out that Peter Griffiths had two infections, one starting on 4 August and a second starting on 11 August.
It is not possible to make an accurate aetiological diagnosis in cases of gastroenteritis from symptoms alone. On the balance of probabilities the absence of vomiting as a symptom make a viral cause much less likely than a bacterial one. The commonest recorded bacterial causes of acute gastroenteritis in places like Turkey are Campylobacter, Shigella and Salmonella. Giardia is considered to be reasonably common. Campylobacter is more commonly recorded in travellers returning to the UK from holidays abroad than Salmonella or Shigella. Enterotoxigenic E.coli (ETEC) and its relatives are considered to be common causes of diarrhoea in countries such as Turkey. For technical reasons they are not routinely tested for in the UK.
The incubation period for Giardia ranges from one to fourteen days. It averages seven days. Peter Griffiths had been at the hotel for two days before he fell ill, and nine days before his diarrhoea returned. Campylobacter has an average incubation period of three days. For ETEC it ranges from 12 to 72 hours. On the balance of probabilities Peter Griffiths acquired his gastric illnesses following the consumption of contaminated food or fluid from the hotel."
"4) You offer opinion that the claimant suffered gastric illness caused by consumption of contaminated food or fluid from the hotel. In relation to your opinion on causation, to what extent do you consider that there would be:
a) A range of opinion on causation amongst appropriate experts?b) If there is a range, what is it?c) What is your position within that range?d) What facts and matters have you relied upon in adopting your position within that range?
a)-d) Regarding causation etc the appropriate experts would consider the gastroenteritis symptoms, their possible infective cause, the commonness of possible microbial causes in Turkey and their modes of transmission, their incubation periods and the length of time the claimant had been at the hotel. I did the same.
5) To what extent were you able to identify the exact source of contaminated food or fluid which caused the illness? If so, please state what exactly was contaminated and provide supporting evidence of the contamination.
In single cases of infective gastroenteritis it is usually not possible (as in this case) to determine the exact source of contaminated food that led to the infection. To determine the exact source under these circumstances it would be necessary for suspect foods to be tested for the possible pathogens: this is usually impossible because the suspected food would have been consumed. It is highly unlikely that any will have been retained in a condition suitable for microbiological testing.
6) If the court finds as a fact that the claimant ate outside of the hotel in the days/weeks leading to onset of illness, to what extent would that impact on the opinions you express in relation to causation?
If the claimant had eaten outside the hotel the nature of the food and the date(s) of its consumption and the frequency of its consumption would be taken into account in assessing the probability that such food was more or less likely than hotel food to have been the source of the pathogen that caused the gastroenteritis.
7) If the court finds as fact that others on this holiday who had consumed the food provided by the hotel were not similarly afflicted, to what extent would that impact on the opinions you express in relation to causation?
The great majority of cases of food-borne infective gastroenteritis are sporadic and do not occur in outbreaks. So if no other cases similarly affected had been reported, this would not affect my conclusions regarding causation.
8) If the court finds as fact that the hotel was applying high standards in relation to hygiene and monitoring of food, to what extent would that impact on the opinions you express in relation to causation?
I would expect the court to take into account the hotel HACCP plan and its implementation with all its associated documentation in determining its food hygiene standards; if high quality I would take it into account regarding causation. I would put much less weight on food monitoring itself as a food safety measure because of its inherent statistical limitations."
The Judgment of HHJ Truman
"12. The fact that the claimant was ill is, of course, not enough by itself for the claimant to succeed. He must satisfy the test in Wood v TUI. In that case, Burnett LJ commented that:
'The judge was satisfied on the evidence that Mr and Mrs Wood suffered an illness as a result of contamination of the food or drink they had consumed. Such illness can be caused by any number of other factors. Poor personal hygiene is an example but equally bugs can be picked up in the sea or a swimming pool. In a claim for damages of this sort, the claimant must prove that food or drink provided was the cause of their troubles and the food was not "satisfactory". It is well known that some people react adversely to new food or different water and develop upset stomachs. Neither would be unsatisfactory for the purposes of the 1982 Act. That is an acceptable hazard of travel. Proving that an episode of this sort was caused by food which was unfit is far from easy. It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved; and it might be difficult to prove that food (or drink) was not of satisfactory quality in this sense in the absence of evidence of others who had consumed the food being similarly afflicted. Additionally other potential causes of the illness would have to be considered such as a vomiting virus. The evidence deployed in the trial below shows that the hotel was applying established standards of hygiene and monitoring of their food which were designed to minimise the chances that food was dangerous. The application of high standards in a given establishment, when capable of being demonstrated by evidence, would inevitably lead to some caution before attributing illness to contaminated food in the absence of clear evidence to the contrary.'
Sir Brian Leveson P commented:
'I agree that it will always be difficult (indeed very difficult) to prove that an illness is a consequence of food or drink which was not of satisfactory quality, unless there is cogent evidence that others have been similarly affected and alternative explanations would have to be excluded.'"
"18. Counsel for the defendant was unhappy about a number of matters within the report. The Professor thought it unlikely that the claimant had been simultaneously infected with Giardia, adenovirus and rotavirus. That on the face of it would appear to suggest that the claimant had been infected on at least two separate occasions. The claimant's history of being ill, recovering somewhat and then being ill again, might also suggest two separate infections, and indeed the report says that the possibility of there being two separate infections cannot be ruled out. Nothing further is then said about that. There is no explanation as to why the meal eaten on 7 August might not be at fault for the possible second illness and why the conclusion is that the claimant acquired his illness following the consumption of contaminated food or fluid from the hotel.
19. Further, counsel points to the lack of reasoning between setting out the incubation periods (one to fourteen days for Giardia, average seven), the claimant falling ill after two and then nine days after arrival at the hotel, and then saying that the illness is due to the hotel, with again nothing to say why this is so. The report makes no specific mention of the food the claimant ate at the airport before reaching the hotel (which falls within the incubation periods given), nor what he ate in the local town, and why those potential sources should be discounted. Counsel notes that, despite the Professor being asked to comment on possible breaches in health and hygiene procedures and having been provided with the hotel's documentation on their procedures etc, nowhere is any breach, causative or otherwise, actually listed and no comments on any perceived breaches were made. Counsel submits that the court might consider that this lack of comment is because the Professor found no breaches.
20. I also note that whilst the Professor says that a viral cause is much less likely than a bacterial one due to the fact that the claimant did not suffer from vomiting, that doesn't explain how it was that adenovirus and rotavirus were found in the claimant. If they had no effect, or could otherwise be discounted, I would have expected the report to say in more detail why that was so, in the same way that it provided a reasoned explanation for why the claimant was not likely to be suffering from amoebic dysentery. The fact that viral infections more usually cause vomiting on the face of it means that sometimes you can have a viral infection without vomiting. Further, whilst a viral cause is apparently less likely than a bacterial one due to the lack of vomiting, I'm not clear how this fits in with the fact that only parasites and viruses were isolated in the sample, not bacteria, and the pathogens which were found were known to cause stomach upsets.
21. The defence had set out a number of non-food related methods of transmission for the claimant's illness from the identified pathogens. The report does not say why any of those should be discounted in this particular case. Similarly the report does not say why the possible routes for infection listed in the Particulars of Claim (air conditioning, leakage from a baby's nappy in the swimming pool etc) are less likely to be applicable, or, if they might be relevant, what the breaches were in the health and hygiene procedures which led to the claimant falling ill."
"28. It is trite law that the burden of proof is on the claimant. It is open to a defendant to sit back and do nothing save make submissions, and if the evidence is not sufficient to satisfy a court on the balance of probabilities, a claimant will not succeed. In this case, I am not satisfied that the medical evidence shows, following Wood v TUI, that it is more likely than not that the claimant's illness was caused by ingesting contaminated food or drink supplied by the hotel. I accept counsel for the defendant's submissions that a number of the assertions made are bare ipse dixit. There is sometimes a huge gap in reasoning between undoubted factual matters (such as incubation periods) and the conclusion that the hotel was at fault. The court is not a rubber stamp to just accept what someone has said. When causation is clearly in issue, I do consider it incumbent on the medical experts to provide some reasoning for their conclusions. I consider that is what Kennedy v Cordia advises is required. I consider that it is necessary in this case to say why, at the least, it is considered that the pre-flight meal or the local town meal should be excluded. When both sets of pleadings raise a number of possible causes and transmission methods, it might also be thought that the expert report would set out why they would be considered less likely in this particular case. I consider that Wood v TUI has clearly said that the court cannot just draw an inference from the fact that someone was ill, and that other potential causes have to be considered and excluded. Where the report does not mention a number of the raised other possible causes, I do not think it would be appropriate, without more, to assume those other causes have been considered and discounted for some good but unspecified reason.
29. Dr Thomas and Professor Pennington are undoubtedly experienced practitioners. They may both well consider, with their years of experience, that the claimant had infective gastroenteritis caused by eating hotel food, but it seems to me that reports prepared after the Wood v TUI need to deal with those matters the Court of Appeal specified. These reports do not do that. In some instances, they do not comply with CPR 35 (the failure to supply a range of opinion). They certainly do not provide me with sufficient information to be able to say that there is a clear train or logic between, for example, the incubation periods and the onset of illness, so that the pre-flight meal can be excluded or that the hotel food is a more likely cause; similarly for the 'second' illness – it is not said why it is more likely to be a relapse rather than a second infection, especially where the expert has said that it would be unlikely to have all the identified pathogens from one episode of eating contaminated food. It is thus not clear why the eating out in the local town can be discounted.
30. In the circumstances, I find the claimant has not proven his case and I dismiss the claim."
The Claimant's arguments on appeal
"40. Mr Russell submits that it should be the rare case indeed in which it is appropriate for the Court to disregard the evidence of the single joint expert, and such a case will be limited to circumstances where the witness has failed to comply with his ` overriding duty to the Court or has plainly erred. He further submits that where such evidence is disregarded the judge must give clear and cogent reasons for doing so. There is force in those submissions.
41. Mr Buckingham by contrast, summarised his relevant submissions in this regard as follows:
i) Generally the expert's report will be his evidence, without the need for amplification or cross-examination.
ii) However, in some circumstances it will be appropriate for the parties to have the opportunity to cross-examine the expert; for instance, in this case, where the report was produced very late and the expert has not considered all the written questions that had been put to him.
iii) The report and the expert's oral evidence, if applicable, is then the evidence of the expert.
iv) This evidence must then be weighed in the balance with the other evidence in the case and the judge will come to a conclusion based upon all the evidence.
v) The principles set out by Lord Wolfe in Peet v Mid-Kent Care Healthcare Trust are directed at the first three of those points. The case does not establish that the evidence of the expert must then be accepted by the Court. The Court must take its own view of the expert evidence in the light of all the other evidence.
I would accept those submissions, as I think Mr Russell did, in the course of his oral argument. I would add these further observations.
42. All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert's opinion was wrong. More often, however, the expert's opinion will be only part of the evidence in the case. For example the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the Court will or may otherwise be left without expert evidence on what may be a significant question in the case. However, at the end of the trial the duty of the Court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.
43. In the instant case the judge did not disregard the evidence of the joint expert. On the contrary in some respects she accepted it. A judge should very rarely disregard such evidence. He or she must evaluate it and reach appropriate conclusions with regard to it. Appropriate reasons for any conclusions reached should of course be given." [Emphasis added]
Giving a concurring judgment, Mr Justice Lightman said:
"64. I agree with the judgment of my Lord, Lord Justice Clarke and will only add a few words of my own. The issue on this appeal is whether it was open to the trial judge to accept the evidence of the defendants' witness, Mr Strange, and to reject the evidence of Mr Krabbendam, the single joint expert appointed in the case, on the issue of the speed at which the trailer was travelling when it toppled over.
67. Where a single expert gives evidence on an issue of fact on which no direct evidence is called, for example as to valuation, then subject to the need to evaluate his evidence in the light of his answers in cross-examination his evidence is likely to prove compelling. Only in exceptional circumstances may the judge depart from it and then for a good reason which he must fully explain. But if his evidence is on an issue of fact on which direct evidence is given, for example the speed at which a vehicle was travelling at a particular time, the situation is somewhat different. If the evidence of a witness of fact on the issue is credible, the judge may be faced with what, if they stood alone, may be the compelling evidence of two witnesses in favour of two opposing and conflicting conclusions. There is no rule of law or practice in such a situation requiring the judge to favour or accept the evidence of the expert or the evidence of a witness of fact."
Mr Weir QC submits that the judge in this case was in the position referred to by Lord Justice Clarke in the first part of paragraph 42 and by Mr Justice Lightman in the first part of paragraph 67, namely the expert being the only witness on a particular topic or, per Lightman J, a single expert giving evidence on an issue of fact on which no direct evidence is called and where there was no need for his evidence to be evaluated in the light of his answers in cross-examination because the defendant did not call for him to be cross-examined. Mr Weir submits that Professor Pennington's evidence was, in every sense, uncontroverted. The position was to be contrasted with Coopers Payen itself where, although there was a single joint expert, his evidence was controverted by that of Mr Strange, the witness called for the defendant, thus leading to the necessity for the learned judge in that case to make an assessment of the weight and value of the evidence of the respective witnesses. Here, there was no other evidence against which to weigh the evidence of Professor Pennington and it should therefore have been accepted.
"27. In my judgment there is no principle of law that an expert's evidence in an unusual field, doing his best, with his great experience, to reconstruct what happened to the parties based on the second-hand material he received in this case – must be dispositive of liability in such a case and that a judge must be compelled to find that, in his view, two palpably honest witnesses have come to court to deceive in order to obtain damages, in this case a small amount of damages, for a case they know to be a false one."
- The gastroenteritis symptoms
- Their possible infective cause
- The commonness of possible microbial causes in Turkey and their modes of transmission
- Their incubation periods
- The length of time the Claimant had been at the hotel.
Professor Pennington set out in his report the relevant evidence he had taken into account including, in particular, the evidence of the Claimant contained in his witness statement, evidence which the judge eventually wholly accepted as true and accurate. He also considered the alternative potential causes for the Claimant's illness and was of the opinion that, in this case, the cause was the parasite Giardia, this being more likely than any of the other pathogens. He then recognised the commonness of Giardia in Turkey which he identified as the fifth most likely country for travel associated Giardia. Mr Weir submitted that the report and opinion of Professor Pennington was accordingly far away from a bare "ipse dixit" as found by the learned judge at paragraph 28 of the judgment.
Submissions on behalf of the Defendant
"It is accepted that if agreed or unopposed expert evidence is: (a) complete, in the sense that it addresses all relevant issues which require to be considered, (b) sufficiently reasoned so that its conclusions can be understood, and (c) there is no factual evidence which contradicts or undermines the basis of it, there would need to be good reason for not accepting it."
For the Claimant, Mr Weir accepted the third condition, namely that there should be no contradictory or undermining factual evidence; but he submitted that the first two conditions were an unwarranted gloss on Clarke LJ's statement of the law in Coopers Payen and had no foundation in law.
" that food or drink provided was the cause of their troubles and that the food was not 'satisfactory' … Proving that an episode of this sort was caused by food which was unfit is far from easy. It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved…"
Mr Stevens submitted that if this was all that the judge meant by the "test" in Wood's case, it is uncontentious. There is a distinction between what must be proved, and the difficulty faced by any Claimant in proving it by satisfactory evidence. That the approach of the judge was the right one is, it was submitted, shown by paragraph 28 of her judgment where she held, among other things:
"In this case, I am not satisfied that the medical evidence shows, following Wood v TUI, that it is more likely than not that the Claimant's illness was caused by ingesting contaminated food or drink supplied by the hotel."
This was no more than a statement that the Claimant had failed to satisfy the burden of proof by relying on the evidence of Professor Pennington.
"I do not take the Court of Appeal's views as meaning that every possible minute cause (or every single item of food) there might be should be considered and ruled out, but I do consider that it was intended that common likely causes should be considered and excluded."
This was, Mr Stevens submitted, no more than a sensible observation as to the burden of proof at work.
"48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or bare ipse dixit carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edinburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless. Wessels JA stated the matter well in the Supreme Court of South Africa (Appellate Division) in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung mbH 1976 (3) SA352, 371:
"An expert's opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert's bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert."
As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: "As with judicial or other opinions, what carries weight is the reasoning, not the conclusion."
"In closing, Counsel did not seek to cast aspersions on their characters. This was eminently sensible in my view as the Claimant and his wife patently came across as honest and straightforward witnesses. Counsel submitted that they might be mistaken about certain matters, but having heard from the Claimant and his wife and having considered the Defendant's documents, I accept the evidence of the Claimant and his wife. I find that the Claimant was indeed ill and that he has proven the problems he suffered then and since. In particular, I accept the evidence of the Claimant and his wife with regard to what they ate and when, and the dates the Claimant fell ill."
Thus, it seems to me that the factual basis for Professor Pennington's report and the factual findings made by the judge were identical. Having thus failed to challenge the factual basis for the report, the Defendant was thrown back onto its attack on the substance of the report and its assertion that the Professor's opinions were bare ipse dixit.
1. When or in what circumstances can a court reject an uncontroverted expert report?
"… the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert's opinion was wrong."
If Mr Stevens' test is correct, namely that, to be accepted, the expert report must be (a) complete, in the sense that it addresses all relevant issues which require to be considered, (b) sufficiently reasoned so that its conclusions can be understood, then it would be all too easy to envisage a case in which it would be appropriate to decide the case on the basis that the expert's opinion was wrong. It seems to me that Clarke LJ must have had in mind a narrower test than this and I cannot think that, in so stating, Clarke LJ was assuming that the report would satisfy Mr Stevens' test. Indeed, that test would mean the court rejecting Wessels JA's proviso "except possibly where it is not controverted" in the case of a report which is a bare ipse dixit, despite the Supreme Court's apparent approval of Wessel JA's dictum.
"Form and Content of an Expert's Report
An expert's report should be addressed to the court and not to the party from whom the expert has received instructions.
An expert's report must—
(1) give details of the expert's qualifications;
(2) give details of any literature or other material which has been relied on in making the report;
(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert's own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;
(6) where there is a range of opinion on the matters dealt with in the report—
(a) summarise the range of opinions; and(b) give reasons for the expert's own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give an opinion without qualification, state the qualification; and
(9) contain a statement that the expert—
(a) understands their duty to the court, and has complied with that duty; and(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
An expert's report must be verified by a statement of truth in the following form —
"I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer."
(i) The report was addressed to the court;
(ii) The report started by giving the Professor's professional credentials;
(iii) The report set out the material he had used in compiling the report, including the Letter of Claim, the Claimant's witness statement etc;
(iv) The report set out the nature of the expert's instructions;
(v) The report set out the salient facts, incorporating the contents of the Discharge Report provided by Kusadasi Hospital and the test results from the stool sample;
(vi) The report considered other potential causes for the illnesses such as amoebic dysentery and viral infections before concluding that Giardia was "much more likely as a cause of gastroenteritis in this case than any of the other pathogens";
(vii) The report considered the incubation period for Giardia, compared this to the facts, and concluded that the Claimant's gastric illness followed the consumption of contaminated food or fluid from the hotel.
(viii) The report ended with the endorsement enjoined by Paragraph 3.2(9) of the Practice Direction;
(ix) The report contained the statement of truth in appropriate terms;
(x) Although the report did not identify in terms a range of opinion on the matters dealt with in the report, this was the subject of a Part 35 question which the Professor answered as indicated in paragraph 13 above in this judgment. Mr Stevens complained, in his submissions, that the answer to question 4) provided by the Professor was not an answer to the question at all, but I disagree and, in any event, if dissatisfied by the answer, the Defendant could have made an application to the court seeking an Order that the Professor provide an answer, but chose not to do so.
2. Was Professor Pennington's report bare ipse dixit or otherwise so deficient as to have entitled the court to reject it in this case?