Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 30
The Defendant did not 昀椀le a counter-schedule
of loss, either with the Defence or in accordance
with the court directions. As such, quantum was
not challenged. In addition, the Defendant did
not 昀椀le any expert evidence, did not ask any Part
35 questions of the experts, and did not make any
application to call the experts to trial. Consequently,
the Claimants’ expert evidence was uncontroverted.
2(6) was medical tourism as the surgery accounted
for a signi昀椀cant proportion of the combination
and was an essential feature of it and did not
accept the Defendant’s arguments that hospital
accommodation was not accommodation (albeit,
there was also hotel accommodation included in the
package).
Days prior to trial, the Defendant conceded that she
was a retailer under the PTR 2018 yet contested that
there was a package travel contract in existence. In
addition, the Defendant put forward a new argument
that the hospital was in fact the true contracting
party.
Whilst the Defendant attempted to argue at trial
that there was no su昀케cient consideration (although
it was again not pleaded), Ms Justice Obi disagreed.
As such, liability was made out under the PTR 2018.
In any event, she considered that liability would arise
under the consumer contract route irrespective of
whether her analysis of the PTR 2018 was correct as
a result of the deemed admissions.
The trial came before Ms Justice Obi. At trial, the
Defendant con昀椀rmed that causation and quantum
were not in dispute. However, during opening
submissions, the Defendant attempted to retreat
from the deemed admissions and advanced a case
that was not pleaded. Submissions were made that
there was no package travel contract in existence,
despite the acceptance of retailer status before
trial, and that there could not be a contract in
existence due to a lack of consideration. No formal
application had been made to amend the Defence to
the date of trial. Ms Justice Obi summarily refused
permission to amend the Defence, given the lateness
of the application, the lack of any explanation as to
the delay in making such an application, and the
prejudice that would be caused to the Claimants.
Finally, the Defendant had raised an argument
about agency at trial, alleging that the Defendant
was an agent for Ekol Hospital. Ms Justice Obi
noted for completeness that the Defendant had not
clearly identi昀椀ed Ekol Hospital as the principal to
the contract. On that basis, she did not consider the
agency argument had merit, as the principal to the
contract was undisclosed thus the Defendant would
be liable for the performance of the contract.
Consequently, the Claimants were awarded damages
in excess of £800,000.
Analysis
This was an unusual case, but one which brings some
clarity to the meaning of tourist services under the
PTR 2018 and to the meaning of accommodation.
It would be unusual in this author’s view if tourist
services did not include medical tourism, given the
breadth and scope of this tourist activity around the
world. It is also interesting to note the court’s view
that hospital accommodation can fall within the
meaning of accommodation under the PTR. That
said, this was a case in which the package included
hotel accommodation in any event.
At the conclusion of the trial, Ms Justice Obi
considered the PTR 2018 and whether the Defendant
was a retailer, or whether the Defendant was an
organiser as the Claimants alleged. She accepted
that the Defendant was in fact an organiser, selling
and o昀昀ering for sale packages at an all-inclusive
price that combined surgery, transfers, multi-night
hospital accommodation and hotel accommodation,
and aftercare. There was nothing to suggest in the
marketing material and contractual communications
with the Deceased that the true contracting party
was the hospital. The Defendant had accepted she
was selling surgical packages and utilised language
in marketing and contractual communications
including “our surgeon” and “we”, which was
inconsistent with the role of a mere introducer.
Further, the Deceased made a single payment upon
arrival to the hospital from which the Defendant
received a payment. Ms Justice Obi noted that the
Defendant’s position had shifted over time and that
the Defendant had conceded retailer status under
the PTR 2018, which presupposed the existence of a
package. Irrespective of the Defendant’s assertions,
Ms Justice Obi was of the view that the Defendant
was an organiser within the meaning of Regulation
2(1). Notwithstanding that, in her 昀椀ndings, she
considered that the tourist service under Regulation
EXPERT WITNESS JOURNAL
It appears that more cases of this nature are likely to
come before the courts, given the growing popularity
of surgery abroad, and it will be interesting to see
the growing jurisprudence on the PTR 2018 and its
interaction with cross-border clinical negligence
claims.
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