Supreme Court backs raped tourist in blow to travel industry



A British woman who was sexually assaulted by a hotel worker on a package holiday has won her Supreme Court appeal, in a judgment of ‘major importance to the travel industry’.

In 2010, the appellant – referred to as Mrs X – and her husband entered into a contract with tour operator Kuoni for a package holiday in Sri Lanka. Whilst on the holiday, Mrs X was attacked by an on-duty hotel employee, who said he would show her a shortcut back to reception. Instead, he lured her into an engineering room where he raped and assaulted her.

Mrs X subsequently brought a claim for damages against Kuoni. She claimed that the rape and assault were a breach of the contract and/or gave rise to liability under the contract and the Travel, Package Holidays and Package Tours Regulations 1992.

In X v Kuoni Travel Ltd, Supreme Court judges led by Lord Lloyd-Jones unanimously allowed her appeal, taking a ‘broad view’ of the obligations owed by tour operators under package holiday contracts. It decided that the obligations include not only the provision of transport, accommodation and meals, but also a range of ‘ancillary services’ which are necessary for the provision of a holiday of a reasonable standard.

Kuoni objects that [the hotel worker] was not providing a service within the package travel contract but pursuing a criminal enterprise when he raped and assaulted Mrs X,’ Lord Lloyd-Jones wrote. 

‘It seems to me, however, that the correct focus here should be the provision of the service of guiding a guest. This fell within the “holiday arrangements” which Kuoni undertook would be provided. [The hotel worker] was able to assault Mrs X only as a result of purporting to act as her guide. Furthermore, the assault was a failure to provide that guiding service with due care.’

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The Supreme Court also rejected the defence under the 1992 package travel regulations that ‘even with all due care’ Kuoni could not have foreseen or forestalled the rape. This followed a 2021 decision from the Court of Justice of the European Union which said the defence does not apply where a failure to perform obligations under a package travel contract is ‘the result of acts or omissions of employees of suppliers of services performing those obligations’.

The court accordingly concluded that Kuoni is liable to Mrs X both for breach of contract and under the 1992 package holiday regulations.

James Riley of Irwin Mitchell – which represented Mrs X – said the judgment is of ‘major importance’ to the wider travel industry. ‘The judgment provides clarity to tour operators regarding their legal obligations.’ he said.

Claire Mulligan, partner and head of travel at Kennedys, added that tour operators will need to carefully review booking terms and conditions to ensure that their liability does not extend beyond the holiday arrangements they have agreed to provide.

 

 

 

 



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