Insights / News
Insights / News
The facts giving rise to this case occurred over a decade ago now, when X and her husband were on a package holiday in Sri Lanka. Early on the morning of 17 July 2010, a hotel maintenance employee on night duty offered to show X a shortcut to reception. The employee then took X to an engineering room where he assaulted and raped her.
Having been dismissed both at first instance and by the Court of Appeal, X’s claim against Kuoni, the tour operator, eventually reached the Supreme Court. The issue in dispute was whether the actions of the maintenance employee could be construed as improper performance of the holiday contract, which was regulated by the Package Travel, Package Holidays and Package Tours Regulations 1992 (‘the 1992 Regulations’).
In its defence to X’s claim, Kuoni relied on section 15(2)(c)(i) of the 1992 Regulations which provides that liability does not arise if the improper performance of the holiday, contract flows from failures due to:
‘an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall.’
On 24 July 2019, the Supreme Court referred two questions to the CJEU in respect of the scope of that defence in its form as the second part of the third indent to article 5(2) to Council Directive 90/314/EEC on Package Travel, Package Holidays and Package Tours (‘the Directive’) to which the 1992 Regulations give effect.
For the purposes of the reference, the CJEU was asked to assume that the maintenance employee’s guidance of X to reception was a service which Kuoni had contracted to provide and that the rape and assault constituted improper performance of the contract.
On 10 November 2020, the Advocate General gave his view on the Supreme Court’s questions (and more), which I wrote about here.
The CJEU has today confirmed, in robust terms, that article 5(2) of the Directive does not provide a defence to hotels for the deliberate acts of its employees, concurring with the Advocate General’s opinion.
The CJEU found that the liability provisions of the Directive should not be interpreted restrictively given that the objective of the Directive is to ensure a high level of consumer protection. Having established that an employee of a supplier of services is not himself a supplier, the CJEU is clear that an employee’s acts and omissions giving rise to performance or non-performance of a supplier’s obligations under the holiday contract are acts and omissions for which the supplier is liable and do not constitute events which a supplier can properly be described as being unable to foresee or forestall.
The impact of the judgment on defendant tour operators is certainly significant, as it limits the circumstances in which they can avoid liability for the acts of an employee under the Directive.
Carin is keenly developing a cross-border element to her personal injury practice, and has drafted pleadings and appeared in court in respect of package travel claims, Odenbreit claims, and claims involving consumer contracts which the Brussels Recast Regulations apply.
She also receives instructions in flight delay, Montreal Convention, and Athens Convention claims. Carin’s clinical negligence practice compliments her international injury work and she has recently advised in two cases involving medical treatment abroad.
If you would like to discuss any of the issues covered in this article please contact Carin Hunt directly or via her practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.