Wood v First Choice: A Legal Case Analysis on Contract Law

This case study analyzes Wood v. First Choice, focusing on a claim related to food poisoning during a holiday. The central issue revolves around whether the food and drink provided constituted a sale of goods, implying a term of satisfactory quality under the Supply of Goods and Services Act 1982, or if it was solely a service provision, requiring reasonable skill and care. The court considered the defendant's arguments about licensing versus ownership and referenced prior cases like Lockett v A&M Charles. The ruling held the tour operator liable, despite potential issues in establishing the source of the illness. The analysis explores negligence based on Donoghue v Stevenson, assessing the foreseeability and proximity of the consumer-service provider relationship. It also considers how a holidaymaker's actions could affect liability, and whether a contract was formed with implied conditions of care. The study concludes by examining the breach of contract claim related to these implied terms. Relevant legislation, case laws, and articles are cited in the bibliography.

Case 6
Wood v First Choice1
Background
This case was related to a claim in industry which surrounded food poisoning while the plaintiff
was on holiday. The issue in this case was whether the property in the drink or food which was
consumed when the plaintiff was on an all inclusive holiday passed to the consumer, in such a
way that the contract was one of sale of goods, based on section 4(2) of the Supply of Goods and
Services Act, 1982. This would mean that a term had been implied regarding the food and the
drink to be of a satisfactory quality. And this very verdict was upheld by the Court of Appeal2.
Had the contract only been for one provision of services, i.e., the holiday provision, then the
maximum which could be interpreted from the implied term was that the service had to be
provided with skill and reasonable case, based on section 13 of the quoted act. It was a big
possibility that the food could induce food poisoning even when the reasonable care and skill had
been exercised by the tour operator while selecting the restaurants and hotels. However, where a
term with regards to the satisfactory quality of the goods implied themselves the possibility falls
away. None of the views can be stated that the food which induced food poisoning had been one
of satisfactory quality, even when the fault was that of the hotel and there was no reason to
blame the tour operator. And yet, this ruling resulted in the tour operator being liable in an
ordinary manner3.
1 [2017] EWCA Civ 11
2 St John’s Chambers, Contract Law Case Law Update (January – March 2017)
<http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Case-Citator-20-April-2017-Nick-Pointon-and-
Natasha-Dzameh.pdf>
3 Ibid

The defendant presented their case in a very attractive manner. It was argued by them that all that
was done by the defendant was merely providing a license to all inclusive customers for
consuming the drinks and food where no question was raised on them forever becoming the
owners of what went on the glasses or plates. Upon being consumed, the goods were destroyed.
However, the Court of Appeal made reference to the case of Lockett v A&M Charles4 and
distinguished from the recent ruling of the Supreme Court in PST Energy 7 Shipping v OW
Bunker Malta5, holding that where the customer took the food from buffet, the property included
in the fare, became his, i.e., the defendant’s. Sir Brian Levenson P, with regards to the floodgate
concerns of the defendant, was of the opinion that there would always be a difficulty in
establishing that the illness resulted from the drink or the food which was not satisfactory in
quality till the time there was a cogent evidence regarding other people to have been affected in a
similar manner and the other explanations would be required to be excluded. However, this was
to be done on the basis of balance of probabilities and this claim opens upon a plethora of new
claims6.
Question 1
Whether a claim of negligence can be made against the defendant?
Answer 1
Negligence can be defined as a breach of duty of care, in which the defendant owed a duty of
care to the plaintiff owing to the actions being undertaken by the defendant, which had the
capacity of injuring or harming the defendant7. In this regard, the case of Donoghue v Stevenson8
4 [1938] 4 All ER 170
5 [2016] UKSC 23
6 Ibid
7 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)
8 [1932] AC 562

is of assistance. In this case, the plaintiff consumed the ginger beer bottle manufactured by the
manufacturer which contained a dead snail. As a resulting of consuming this drink, the plaintiff
fell sick and sued for negligence. The defendant claimed that a duty of care was not owed to the
plaintiff as the friend of plaintiff had purchased the ginger beer bottle. However, owing to the
reasonable foreseeability of a contaminated drink resulting in harm and the proximity between a
manufacturer and consumer, made the defendant liable9.
In the given case, the negligence of the defendant can be established as there was a reasonable
foreseeability of food poisoning and even proximity between the plaintiff and the defendant
since there was a consumer and service provider relationship. Also, unlike the quoted case, the
plaintiff had purchased the ticket directly, which further makes the defendant liable.
Question 2
Would this condition change, where a holiday maker takes food from the buffet, touches with
bare hand, and then keeping it back in the buffet?
Answer 2
In this case, the defendant can show that the food was adulterated owing to the interference of
the holiday maker and can apply for the damages to be reduced, on the basis of the same not
being a reasonable foreseeable issue. The lack of reasonable foreseeability of the holiday makers
doing so would discharge the liability of the defendant in this case, as the case of Wyong Shire
Council v Shirt10 dictates that for foreseeability, the view of a reasonable person is to be
undertaken.
9 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)
10 (1980) 146 CLR 40

Question 3
Whether a contract was formed in this case?
Answer 3
A contract had been created when certain terms were offered by the defendant to the plaintiff and
the same were accepted by purchasing the ticket of the tour. Hence, a contract was formed
between the tour operator and the plaintiff.
Question 4
Were there any implied conditions in this case?
Answer 4
The implied condition in this case was to provide such services to the plaintiff, which was of a
particular standard and where care was depicted. Hence, there was an implied condition of using
reasonable skill and care.
Question 5
Whether the breach of contract can be claimed for breach of implied conditions, if any?
Answer 5
A breach of contract refers to the promise made under the contract not being upheld by one of
the contracting parties. A breach of any of the contractual term results in a breach of contract,
including the implied terms11. In this case, the plaintiff failed in fulfilling the implied terms of
reasonable care and skill. And so, a breach of contract can be rightly claimed.
11 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)

Bibliography
Articles/ Books/ Journals
Abbott K, Pendlebury N and Wardman K, Business law (Thompson Learning, 8th ed, 2007)
Latimer P, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)
Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)
Cases
Donoghue v Stevenson [1932] AC 562
Lockett v A&M Charles [1938] 4 All ER 170
PST Energy 7 Shipping v OW Bunker Malta [2016] UKSC 23
Wood v First Choice [2017] EWCA Civ 11
Wyong Shire Council v Shirt (1980) 146 CLR 40
Legislations
Contract Law
Tort Law- Negligence
Others
St John’s Chambers, Contract Law Case Law Update (January – March 2017)
<http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Case-Citator-20-April-2017-
Nick-Pointon-and-Natasha-Dzameh.pdf>