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 her claim.
Held: The appeal failed (Longmore LJ dissenting). On their proper interpretation, the words ‘holiday arrangements’ in clause 5.10(b) did not include a member of the hotel’s maintenance team, known to be such to the hotel guest, conducting the guest to the hotel’s reception. This was no part of the functions for which the employee was employed. The 1992 Regulations were not designed to facilitate a claim against a tour operator for wrongful conduct by an employee of a supplier where that conduct was ‘not part of the role in which he was employed’ and where the supplier would not have been vicariously liable under either the consumer’s domestic law or the foreign law applicable to the supplier.
Obiter, Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a ‘supplier’ within the meaning of those provisions. The hotel and not N was the supplier of any services performed by N. The booking conditions referred to ‘our agents or suppliers’, which denoted a need for a direct contractual or promissory relationship between Kuoni and whoever was to be regarded as a supplier. Furthermore, this reading was supported by regulation 15. Nothing in regulation 15 suggested some other meaning of the word ‘supplier’ in clause 5.10(b) or the expression ‘supplier of services’ in regulation 15 itself. The express reservation in regulation 15(1) of ‘any remedy or right of action which [the package holiday operator] may have against [the] suppliers of services’ was consistent with a direct relationship between the operator and the supplier and may be indicative of an assumption that there would be such a relationship. In a situation where one contracting party assumes primary and personal liability for the provision of services by agents or suppliers to a reasonable standard to the other contracting party, the natural meaning of ‘supplier’ is the person who assumes a direct contractual or promissory obligation to provide such services and not an employee of such a person. There were no discernible policy reasons for imposing liability on a tour operator when neither it nor the hotel were ‘at fault’ and the express exclusion of liability under regulation 15(2)(c)(ii) pointed clearly to the contrary. Furthermore, in such circumstances it was not realistic to suppose that the tour operator could protect itself via an indemnity from the employee or the hotel or by way of insurance.
Sir Terence Etherton MR, Longmore, Asplin LJJ
[2018] EWCA Civ 938, [2018] WLR(D) 262, [2018] 1 WLR 3777, [2018] 1 WLR 3777
Bailii, WLRD
Package Travel, Package Holidays and Package Tours Regulations 1992 15
England and Wales
Citing:
Appeal from – 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 by:
Appeal from – X v Kuoni Travel Ltd SC 24-Jul-2019
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. . .
Appeal from – X v Kuoni Travel Ltd SC 30-Jul-2021
. .
Lists of cited by and citing cases may be incomplete.
Updated: 31 July 2021; Ref: scu.614912