X v Kuoni Travel Ltd [2021] UKSC 34

CASE SUMMARY

Factual circumstances

X v Kuoni Travel Ltd [2021] concerns the liability of tour operator, Kuoni Travel, for the deliberate act of an employee (R) of one of its suppliers (the hotel) against "X"; a package holiday guest staying at a hotel in Sri Lanka in 2010. 

X was on holiday with her husband at the Sri Lanka resort between the 8th and 23rd of July 2010. On 17th July, X was making her way to the Reception when she encountered an electrician, N, an employee of the hotel and in hotel uniform. N was on duty and offered to show X a shortcut to the reception. N then lured X into an engineering room where he raped and assaulted her. 

X claimed damages from Kuoni in respect of the rape and sexual assault on grounds that the improper performance of the package holiday contract and a breach of the Package Travel, Package Holidays and Package Tours Regulations 1992 (the "1992 Regulations").

Kuoni denied the rape and assault constituted a breach of its obligations under the contract or the 1992 Regulations. Kuoni relied on clause 5.10(b) of the contract and Regulation 15(2)(c)(ii) of the 1992 Regulations. The material provision, Regulation 15 of the 1992 Regulations, implemented Article 5 of the Council Directive 90/314/EEC.

 

In the High Court

The High Court of Justice (England & Wales) (United Kingdom) dismissed X’s action for damages on the ground that the ‘holiday arrangements’ referred to in clause 5.10(b) of the contract at issue did not include a member of the maintenance staff conducting a guest to reception.

 

In the Court of Appeal

On appeal, the Court of Appeal (England & Wales) (United Kingdom) also dismissed X’s appeal. That court held that a member of the hotel’s maintenance staff, known to be such to the guest and who conducted that guest to the hotel’s reception, did not fall within the scope of clause 5.10(b) of the contract at issue.

The court also found that the 1992 Regulations were not designed to facilitate a claim against a travel organiser for wrongful conduct by an employee of a supplier of services where that conduct was not part ‘of the role in which he was employed’ and where that supplier was not vicariously liable either under the domestic law applicable to the consumer or the foreign law applicable to that supplier.

Lastly, it held, obiter, that Kuoni was not liable under either clause 5.10(b) of the contract or pursuant to Regulation 15 of the 1992 Regulations because N was not a ‘supplier’ within the meaning of those provisions.

 

In the Supreme Court

On further appeal, the Supreme Court of the United Kingdom found that two main questions had been brought before it:

(1) the first concerning whether the rape and assault of X constitute improper performance of Kuoni’s obligations under the contract at issue, and

(2) the second concerning whether, in the event that the first question were answered in the affirmative, Kuoni can avoid its liability in respect of N’s conduct by reliance on clause 5.10(b) of that contract and, where appropriate, Regulation 15(2)(c) of the 1992 Regulations.

The Supreme Court of the United Kingdom found that a reference had to be made to the Court of Justice for a preliminary ruling. The Supreme Court of the United Kingdom decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)  Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organiser or retailer with a consumer to provide a package holiday to which [Directive 90/314] 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) [of Directive 90/314]; and, if so,

(b)  by which criteria is the national court to assess whether that defence applies?

(2) Where an organiser or retailer enters into a contract with a consumer to provide a package holiday to which [Directive 90/314] 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 [Directive 90/314]?’

 

X v Kuoni Travel Ltd [2021] C‑578/19 - CJEU Preliminary Ruling

Paragraph 55 sets out the key question the preliminary ruling should answer (para 55):

...whether, where a package travel organiser has entrusted to a supplier of hotel services the performance of a contract linking that organiser to two consumers, and an employee of that supplier of services has committed a rape and assault on one of the two consumers, that may constitute an event that cannot be foreseen or forestalled, within the meaning of the ground for exemption from liability in question.

The following were key conclusions of the court (para 56-62): 

1. Article 5(1) of Directive 90/314, it must be interpreted strictly. 

2. The ground for exemption from liability must, in the absence of any reference to national law, be interpreted autonomously and uniformly, taking into account not only its wording but also its context and the objective pursued by Directive 90/314.

3. The provisions related to force majeure or different to those which relate to foreseeability, as demonstrated by the use of the disjunctive "or" in the first part of the third indent of  Article 5(2) of Directive 90/314.

4. Article 5(2), third indent exemption of liability for events not foreseen or forestalled relates to those events which are not within the sphere of control of the organiser or supplier of services.

5. The acts or omissions of an employee of a supplier of services in the performance of obligations arising from a package travel contract which results in non-performance or improper performance of the organiser's obligations is: 

- Within the sphere of control of the organiser. 

- The employee cannot be regarded as a supplier of services for the purposes of that provision.

- The organiser cannot be exempted from its liability arising from nonperformance or improper performance in pursuant of that provision.

 

Supreme Court

Following the CJEU's ruling, the key issue for the Supreme Court to determine was whether the employee who pretended to show Mrs X a shortcut to reception was providing services under the holiday contract, such that the assault and rape constituted improper performance of those services. 

The Supreme Court rejected Kuoni's claim that guiding hotel guests was not a function of an employee's role at the hotel, noting that employees were instructed as follows (para 33): 

...each one of you should take on the responsibility of being a Salesman of our Hotel. Learn all details of the various facilities available at the Hotel so that you may guide the Guests.

The court determined the relevant question was whether the employee guiding a guest around the hotel was within the service of the package holiday contract, not whether the criminal enterprise was within this scope. This was because the employee was only able to assault Mrs X as a result of purporting to act as her guide and failing to provide the service of guiding her with due care.

Consequently, the court found Kuoni could not rely on the foreseeability defence, as the CJEU had made plain such a defence did not extend to those acts and omissions provided by hotel staff in accordance with the holiday contract. 

 

References

X v Kuoni Travel Ltd [2016] EWHC 3090 (QB).

X v Kuoni Travel Ltd [2018] EWCA Civ. 938. 

X v Kuoni Travel Ltd [2019] UKSC 37.

X v Kuoni Travel Ltd [2021] Case C‑578/19. 

X v Kuoni Travel Ltd [2021] UKSC 34. 

 

Citation: Jacklin, D. 2022. X v Kuoni Travel Ltd [2021] UKSC 34. Water Incident Research Hub, 18 March.