Supreme Court: Tour Operator Liable for Guest’s assault
Following a reference to the Court of Justice of the European Union (CJEU), a unanimous Supreme Court today allowed an appeal against a tour operator for breach of contract brought by a Mrs X who had been assaulted and raped by a hotel employee: X v Kuoni Travel Ltd [2021] UKSC 34 – Lord Hodge, Lord Lloyd-Jones, Lady Arden, Lord Kitchin
Regulation 15 of the Package, Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288) (the Regulations) stated that “the other party to the contract is liable to the consumer for the proper performance of the obligations under the contract.”
It was necessary to have regard to the nature of the subject matter. A holiday was intended to be a pleasant and enjoyable experience.
This was reflected in the availability in domestic law of a remedy in damages for loss of enjoyment of the holiday experience.[1] It was also reflected in the approach required to be adopted in EU law under article 5(2) of the Directive which established a right of compensation for non-material damage resulting from the non-performance or improper performance of the services constituting a package holiday.[2]
The purpose of the agreement, namely, to confer an enjoyable experience, encouraged a broad, not a narrow, interpretation of the contracted holiday services.
The Court agreed with the dissenting judgment in the Court of Appeal, where Longmore LJ drew attention to what he considered to be the critical wording of the contract: “we will accept responsibility if … any part of your holiday arrangement is … not of a reasonable standard.”
Kuoni had accepted that the holiday arrangements at the four-star hotel which they selected were to be of a reasonable standard.
For such a holiday to be a reasonable standard, hotel staff must be helpful to guests when asked for assistance. All the more must a member of staff who actually offered assistance, assist the guest in a reasonable way.
On no view did the employee assist Mrs X in a reasonable way when he guided her to the engineering room and assaulted her.
In its judgment of 18 March 2021, the CJEU decided that the defence in article 5(2) of the Directive did not apply where a failure of performance of obligations under a package travel contract was the result of acts or omissions of employees of suppliers of services performing those obligations.
The CJEU’s decision was binding on domestic courts in the United Kingdom.
The Supreme Court took a broad view of the scope of obligations undertaken by an operator under a package travel contract. Although this issue was not the subject of the CJEU reference, the reasoning of that court on the issue which was referred was strongly supportive of that conclusion.
The CJEU took a narrow view of the exemption from liability under the third intent of article 5(2) of Directive 90/314. Accordingly, the Directive provided no defence to Kuoni in the present proceedings.
In arriving at these conclusions, it had not been necessary to address issues relating to vicarious liability because it was not relevant. Kuoni was liable both under the Directive as implemented by the 1992 Regulations and in breach of contract because the services it undertook to provide with care and skill by an employee of the hotel which was a supplier of the services.
That liability did not depend on vicarious liability for the acts of an employee. Moreover, to introduce the principle of vicarious liability into the operation of the Directive scheme would defeat its purpose by rendering the pursuit of claims against tour operators unnecessarily complex and expensive.
[1] Jarvis v Swan Tours Ltd [1973] QB 233
[2] Leitner v TUI Deutschland GmbH & Co KG (Case C-168/00) EU:C:2002: 163; [2002] ECR I-2631, para 24