The Supreme Court has ruled tour operator Kuoni liable for damages for the rape of a holidaymaker at a resort in Sri Lanka in 2010.
The Court concluded Kuoni was liable to the claimant Mrs X both for breach of contract and under the Package Travel Regulations (PTRs).
The ruling was in line with a judgement by the European Court of Justice (CJEU) in March and followed a lengthy legal battle after the High Court dismissed Mrs X’s claim for damages against Kuoni and the Court of Appeal dismissed her appeal.
A leading industry lawyer said the decision raises crucial questions for tour operators and urged them to review their booking terms and conditions.
Mrs X and her husband bought a package holiday in Sri Lanka from Kuoni at the Club Bentota hotel in 2010.
In the early hours of July 17 2010, Mrs X was raped and assaulted by a man employed by the hotel as an electrician after she was lured into an engineering room under the pretext of showing her a short cut to reception.
Mrs X brought a claim for damages against Kuoni under the 1992 Package Travel Regulations.
The case hung on whether a tour operator was liable under the PTRs for the conduct of hotel staff – an issue complicated by the fact that the electrician was employed by a sub-contractor.
Claire Mulligan, partner and head of travel at global law firm Kennedys, represented Abta as an intervening party in the case of X v Kuoni Travel Ltd.
She said: “Today’s decision applied a broad interpretation as to what holiday services should be provided under a holiday contract and decided that guiding a guest did fall within Kuoni’s scope of a ‘holiday arrangement’.
“The assault was only able to take place as a direct result of a hotel employee purporting to act as a guide. As such, the contract was breached.”
Mulligan said the decision “highlights that while employees of hotels are not in themselves service providers, the hotel itself is, and employees are within a hotel’s ‘sphere of control’.”
She added: “Although today’s decision deals with the 1992 Package Travel Directive, not the current regulations, it does raise three crucial factors for tour operators.
“First, tour operators may find themselves liable to a claim even if there is no liability on the part of the hotel or other suppliers.
“Consequently, they need to carefully review booking terms and conditions to ensure their liability doesn’t extend beyond the holiday arrangements they have agreed to provide.
“Second, supplier contracts will need to be reviewed and updated to provide maximum protection for the tour operator and to mitigate their losses arising from claims in connection with any services provided in the package contract.
“Third, risk assessments should be reviewed and suppliers should consider additional CCTV in vulnerable areas of hotels and resorts and update their ‘house rules’ and instructions to staff.
“Non-client facing departments may require separate rules which implement restricted guest interaction policies.”
The Supreme Court heard Mrs X’s case in May 2019 and issued an initial judgement in July 2019, but sought a ruling from the CJEU which came in March this year.
In unanimously allowing the appeal, the Supreme Court found the obligations owed by tour operators to consumers under package holiday contracts include not only the provision of transport, accommodation and meals, but also a range of ancillary services necessary for the provision of a holiday of a reasonable standard.
The holiday was at a four-star hotel and the Court considered it an integral part of a holiday of that standard that hotel staff would provide guests with assistance, including guiding guests from one part of the hotel to another.
The Court concluded the rape and assault of Mrs X amounted to a failure to provide that service with proper care.
Mrs X therefore had a claim against Kuoni for injury suffered as a result of the breach of that obligation and for “damage caused to her by [Kuoni’s] failure to perform the contract or the improper performance of the contract”.
The Court noted Kuoni would have a defence under the PTRs if the rape and assault were events which “even with all due care” Kuoni could not “foresee or forestall”.
However, in its judgment of March 18 2021, the CJEU ruled such a defence 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 Supreme Court noted the CJEU ruling is binding on UK courts and judged Kuoni did not have a defence to Mrs X’s claim under the regulations.