A legal case which could re-shape UK tour operator liability for personal injury will go before the UK Supreme Court next week.
The hearing before five Supreme Court judges will review the Court of Appeal judgment last year in the case of X v Kuoni Travel. The Court of Appeal found tour operator Kuoni not liable under the Package Travel Regulations (PTRs) for the rape of a client, Mrs X, at a hotel in Sri Lanka in 2010.
The woman was assaulted by an electrician working as a contractor at the Club Bentota Hotel and subsequently brought a claim for damages against Kuoni. Her lawyers argued Kuoni was liable for the actions of the hotel contractor.
This was dismissed by the High Court, which found there was no “improper performance” of the package contract and the assault on X was an event neither the hotel nor Kuoni could “with all due care foresee or forestall”.
This judgment was upheld by the Court of Appeal in April last year.
Travlaw partner Farina Azam said: “The issue is around tour operator liability. The Package Travel Regulations [PTRs] say, ‘You are liable for your supplier’, but this case suggests that might not be so.
“The issue is whether Kuoni was liable for this electrician working in the hotel. He was a contractor. Normally a hotel would be liable for [its] contractors, but this case suggests a hotel might not be.”
She said: “It completely goes against established case law [and] against the principle of the PTRs. I think it will be overturned.”
Travlaw senior counsel Stephen Mason told Travel Weekly: “It was conventional wisdom that a tour operator is responsible for the people who work at a hotel. But according to the Court of Appeal, where the supplier – the hotel – has done nothing wrong, the tour operator is not liable.
“The hotel had references for the employer who raped Mrs X and the references were fine. They had no reason to think he would behave like this, therefore ‘the supplier did nothing wrong’.
“The ruling surprised everybody. If it stands, it massively limits the instances where a tour operator would be liable when things go wrong.”
Leading industry barrister Sarah Prager has noted that if the ruling is upheld: “The vast majority of ‘routine’ accident claims would fall outside the statutory regime.”
Mason said: “My bet is the Supreme Court will reverse or modify the Court of Appeal decision. The decision was split two to one, which increases the likelihood of a reversal.”
In a dissenting view on the Appeal Court judgment, Lord Justice Longmore argued: “The whole point of the regulation is that the holidaymaker should have a remedy . . . and it should be left to the tour operator to sort out the consequences with those whom it has contracted.”
But Mason said: “If the Supreme Court decides the Court of Appeal got it right, it would be good news for the industry.”
The Supreme Court hearing is due to begin on May 1.
More: Kuoni High Court ruling ‘sets liability precedent’ [May 18]
