Adding insult to injury: a torrid time in Turkey and an unfair trial
Tui UK Ltd v Griffiths [2023] UKSC 48
Mr Griffiths went on a package holiday to Turkey with his family. This included flights and accommodation. During their stay at the hotel, Mr Griffiths suffered serious gastroenteritis and was in hospital for 3 days. He sued the travel company under the package holiday contract.
Mr and Mrs Griffiths gave uncontested factual evidence at trial. An expert witness (Professor P) opined that the food served at the hotel was the cause of the stomach upset. The travel company presented no evidence, did not request that Professor P attend for cross-examination, but denied the illness had been caused by food at the hotel. In closing submissions, the travel company persuaded the judge that deficiencies in Professor P’s report meant that Mr Griffiths had failed to prove his case.
The UK Supreme Court had to decide whether the judge was entitled to find that Mr Griffiths had not proved his case when the expert had given “uncontroverted” evidence as to the cause of the illness, despite criticism that the report’s explanations were incomplete and failed to discount other possible causes of Mr Griffith’s illness.
The Supreme Court emphasised that, in an adversarial system, it is fundamental that the parties can present their own evidence and are entitled to ask questions to prove the accuracy and completeness of the evidence. The judge’s role is to determine the disputed issues based on evidence presented by the parties. The judge must also make sure the trial is fair. A long-established rule is that the evidence of a witness must be challenged in cross-examination if a party wishes to submit that the evidence should not be accepted. This gives the witness an opportunity of explaining an alleged problem with their evidence.
The Court said this rule (known in England as the rule in Browne v Dunn) does not apply only where the honesty of a witness is being challenged but extends to the accuracy of the evidence, noting however that the rule is flexible and there are exceptions. In New Zealand, the equivalent rule is found in s92 of the Evidence Act 2006.
The Court noted that Professor P’s report should have included more reasoning and left relevant questions unanswered. But he had made an assessment of the cause of the illness that was not irrational, and there was no reason to conclude he would not have explained his reasoning more clearly under cross-examination. In the absence of a proper challenge on cross-examination, it was unfair for the travel company to advance detailed criticism of the report in submissions or for the judge to accept them. The trial judge erred in law by not considering the effect on the fairness of the trial of the travel company’s failure to cross-examine Professor P. The Court of Appeal did consider this, but erred in law by limiting the scope of the rule to challenges to the honesty of a witness. Neither Court had properly addressed the application of the rule to the facts of the case. Mr Griffiths did not have a fair trial.
