X v Kuoni Travel Limited [2016] EWHC 3090 (QB) – Tour Operator Liability for Rape by Hotel Employee

William Audland QC of 12 King’s Bench Walk and Gary Tweddle of MB Law represented the Defendant in this case where the Claimant, who was raped by an employee of a Sri Lankan Hotel, sued the Defendant tour operator that had organised the package holiday.

The case comment is by John-Paul Swoboda of 12 King’s Bench Walk.

Comment

This important case grapples with the interaction between the quasi-vicarious liability a tour operator has under the Package Travel, Package Holidays and Package Tour Regulations 1992 for the actions of its suppliers and the actual vicarious liability between an employee and an employer where the employer is a supplier of services. Readers will know the English law on vicarious liability has been in a state of flux (see Mohamud v Morrison Supermarkets PLC [2016] UKSC 11). This case provides a clear marker that claims against a tour operator for an assault by an employee of a supplier of services will be difficult to win. Following the findings in the judgment it will be difficult for claimants to establish that the assault formed part of, occurred or arose as a result of the contractual services. And it may be less difficult than previously considered for a defendant to rely on the statutory defence under the Package Travel Regulations by showing that an assault was unforeseeable and could not have been forestalled. At the time of writing, the Claimant has renewed her application for permission to appeal the decision to the Court of Appeal.

The Issues in the Case

The Claimant’s primary case was that the Defendant was contractually liable:

1. As by their terms and conditions the Defendant had accepted contractual vicarious liability for personal injury caused by the negligent (and criminal) acts of the Hotel’s employees;
2. Pursuant to Regulation 15 of the Package Travel Regulations, since a criminal assault by a Hotel employee on duty was an improper performance of the contractual services which the Defendant had agreed to provide to her with reasonable skill and care

The Defendant’s defence was that:

1. By the express terms and conditions of the contract the Defendant confined any liability in respect of personal injury to that sustained “as a result of an activity forming part of those holiday arrangements” and did not accept responsibility for “unforeseen circumstances which, even with all due care, we or our agents or suppliers could not have anticipated and or avoided”;
2. Regulation 15 had no application as a criminal assault of this kind did not amount to the improper performance of any service which the Defendant agreed to supply pursuant to the contract and, even if Regulation 15 did apply, the Defendant had a complete defence under Regulation 15(2)(c): such an assault could not have been foreseen or forestalled even with all due care;
3. The Claimant effectively sought to impose an absolute obligation that the Defendant warranted the safety of the Claimant at all times during the holiday which the Court of Appeal had rejected in Hone.

In so far as vicarious liability was relevant it was agreed that the law of Sri Lanka on vicarious liability mirrored English Law.

The Findings of the Court

In the early hours of the morning the Claimant was making her way to reception when she bumped into a member of staff (an electrician) on night duty who offered to show her a short cut but in fact took her to the Engineering Room where he raped her.

The Defendant was not liable as the actions of the employee formed no part of the contractual services the Defendant tour operator agreed to provide with reasonable skill and care. It was the hotel and not the employee who was the supplier of services and the employee was not discharging any of the duties he was employed to do when he raped the Claimant. The offer of a short-cut had nothing to do with his duties as electrician: it was part of his luring her to the scene of the rape. Further there was no close connection between the employee’s duties and the attack to make it just for the hotel or indeed for the Defendant to be held vicariously liable to the Claimant. Further were the Claimant to succeed that would be tantamount to implying a term that the Defendant warranted the safety of the Claimant at all material times while she was staying at the hotel, which ran contrary to the decision of the Court of Appeal in Hone. Further, if Regulation 15 had applied then the Defence under 15(2)(c) would have been made out: this attack could not have been foreseen or forestalled.