Liability takes a holiday

A travel company was not liable for the sexual assault and rape of a holidaymaker by a member of staff at the hotel where she was staying.

X v Kuoni Travel Limited [2018] EWCA Civ 938

Executive summary

A travel company was not liable for the sexual assault and rape of a holidaymaker by a member of staff at the hotel where she was staying.

The facts

The appellant, X, booked a package holiday to Sri Lanka through the respondent travel company. Clause 5.10(b) of the holiday contract (“the contract”) imposed an obligation on the respondent company for the ‘holiday arrangements’, in particular any aspect of the holiday arrangements which were not of a reasonable standard due to the fault of the respondent or their suppliers or if the holidaymaker was injured as a result of any activity forming part of those arrangements. Exceptions to the contractual liability included where such injury (if suffered) was due to unforeseen circumstances or was not caused by one of the respondent’s suppliers.

One night during the holiday, an electrician (“N”) employed by the hotel led the claimant to believe that he was showing her a short cut to the reception but instead he sexually assaulted and raped her.

X sued the respondent under the provisions of the contract and under Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Regulations”). At first instance the judge held that it was not a term of the contract that the hotel would provide an electrician or that N’s actions formed part of the services which the respondent agreed to provide. Further, it being accepted that Sri Lankan and UK law on vicarious liability was the same, N’s actions did not render the hotel vicariously liable as there was no close connection between N’s employment and his criminal actions. Accordingly X’s claim failed and she appealed.

Judgment

In a joint judgment, Sir Terence Etherton and Lady Justice Asplin (Lord Longmore dissenting) dismissed the appeal. In their opinion, the term ‘holiday arrangements’ had to be given their normal objective meaning. As such, the term would not be considered to apply to a member of the hotel’s maintenance staff taking a guest to reception as that was not part of the employee’s role. No reasonable person would regard that activity as being one which the respondent was agreeing would be carried out to a reasonable standard.

Further the appeal judges agreed with the first instance trial judge that the case failed under both the contract provisions and Regulations as it was the hotel, not N, which was the ‘supplier’. N was not a supplier to the respondent. In the court’s view, it cannot have been the statutory intention to impose liability in such circumstances under the Regulations, particularly where the hotel had not been at fault in employing N. The hotel would be unlikely to grant the respondent a wide-ranging indemnity against such employee behaviour, particularly where the respondent would be unlikely to obtain insurance to protect themselves against such liability. There was no discernible policy reason to impose liability on the respondent. In the alternative, whilst the respondent could potentially be liable under the terms of clause 5.10(b) and Regulation 15, if the hotel was the supplier and vicariously liable for N’s actions, the drafting of clause 5.10 expressly excluded liability on the facts as the conduct was held at first instance to have been ‘unforeseen’. The Court of Appeal therefore did not need to decide whether the test for vicarious liability had been satisfied.

Comment

Whilst one cannot have anything other than sympathy for the appellant in this case involving a set of circumstances which is thankfully rare, the decision is a welcome one for tour operators and others in limiting the scope of their liability. The dissenting judgment does however show how finely balanced the decision was. For hotels and others in the hospitality sector, guest-assistance by staff is paramount. Consequently Lord Justice Longmore’s dissenting views, that such provision of assistance by staff must be carried out to a reasonable standard, and that some employees should be regarded as suppliers in the same way as their employing company (the example being given of a cruise liner and its captain), show some logic when considering that an objective of the Package Regulations was to leave the hassle of contractual recoveries to the holiday company rather than the consumer. Given the examination of the contractual terms, the case highlights how important it is that travel firms have appropriately drafted contracts to ensure that they are not assuming liabilities wider than anticipated or required under the 1992 Regulations.

Whilst all were in agreement that it was not decisive to the case, the discussion around vicarious liability once again puts the concept in the spotlight. Although the first instance judge rejected any analogy to Mohamud v Morrison Supermarkets, Lord Justice Longmore’s comment that he was “…far from certain that the Hotel would not be vicariously liable as a matter of English law, for rape by an employee whom the Hotel clothed in its uniform and represented to the world in general was a reliable employee’…” suggests that UK law may see further exploration of this subject in future. One could see an analogy between the roles of a retail assistant (as in Mohamud) and, say, a hotel receptionist. However, to suggest the imposition of vicarious liability on an employer for the actions of an employee who would not have primary day to day customer-facing responsibilities (as such the maintenance staff in the present case) could be regarded as a further extension of the application of the doctrine.

For further information please contact: Peter Forshaw, Partner on 0151 242 7935 or peter.forshaw@weightmans.com

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