The claimant had been raped by a member of staff at the hotel in Sri Lanka booked through the respondent travel company. She now appealed from dismissal of the claim.
Held: Questions were referred to the ECJ, namely: ‘(1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates:
(a) is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so,
(b) by which criteria is the national court to assess whether that defence applies?
(2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which Council Directive 90/314/EEC applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a ‘supplier of services’ for the purposes of the defence under article 5(2), third alinea of the Directive?
Judges:
Lord Kerr, Lord Hodge, Lord Lloyd-Jones, Lady Arden, Lord Kitchin
Citations:
[2019] UKSC 37, UKSC 2018/0102
Links:
Bailii, SC, SC Summary, SC Summary Video, SC 2019 May 01 am Video, SC Summary Video, SC 2019 May 01 pm Video
Statutes:
Package Travel, Package Holidays and Package Tours Regulations 1992 15, Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours 5
Jurisdiction:
England and Wales
Citing:
Appeal from – X v Kuoni Travel Ltd CA 26-Apr-2018
The claimant sought damages after being sexually assaulted by a hotel worker on her holiday in Sri Lanka. She said that the incident was an improper performance of the contract and in breach of the 1992 Regulations. She appealed from rejection of . .
At first instance – X v Kuoni Travel Ltd QBD 30-Nov-2016
The Claimant, Mrs X, sought damages for personal injury and other losses arising out of a sexual assault (including rape), on 17th July 2010 during a 14 day all-inclusive package holiday which the Claimant had purchased from the Defendant, Kuoni . .
Cited – Meridian Global Funds Management Asia Ltd v The Securities Commission Co PC 26-Jun-1995
(New Zealand) Lord Hofmann said: ‘There is in fact no such thing as the company as such, no ‘ding an sich’, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the . .
Cited – Tesco Supermarkets Ltd v Nattrass HL 31-Mar-1971
Identification of Company’s Directing Mind
In a prosecution under the 1968 Act, the court discussed how to identify the directing mind and will of a company, and whether employees remained liable when proper instructions had been given to those in charge of a local store.
Held: ‘In the . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Consumer
Updated: 17 April 2022; Ref: scu.640089