X v Kuoni Travel Ltd
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lady Justice Asplin,Lord Justice Longmore |
| Judgment Date | 26 April 2018 |
| Neutral Citation | [2018] EWCA Civ 938 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2016/4695 |
| Date | 26 April 2018 |
[2018] EWCA Civ 938
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
HHJ McKenna (sitting as a Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Longmore
and
Lady Justice Asplin DBE
Case No: A2/2016/4695
Robert Weir QC and Katherine Deal (instructed by Irwin Mitchell LLP) for the Appellant
William Audland QC (instructed by MB Law) for the Respondent
Hearing date: 13 March 2018
Judgment Approved
Introduction
On 8 th July 2010 Mr and Mrs X arrived in Sri Lanka for a 15 day package holiday booked through Kuoni Travel Ltd (“Kuoni”). They stayed at the Club Bentota Hotel (“the Hotel”). In the early hours of 18 th July, Mrs X was sexually assaulted by an electrician employed by the hotel. She has sued Kuoni for “improper performance” of the contract she made with Kuoni who organised and sold the package holiday to her. She bases her claim both on her contract with Kuoni and on regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the regulations”) which themselves derive from Directive 90/314/EEC, the European Directive on package travel, package holidays and package tours (“the Directive”). His Honour Judge McKenna, sitting in Birmingham, has held that there was no improper performance or breach of contract; for good measure he also held that, if there was a breach of the regulations, Kuoni had a defence because the sexual assault was an event which the Hotel could not “with all due care foresee or forestall”. He also held that if the Hotel had been sued (which it was not) it was not vicariously liable for the sexual assault committed by its employee. He therefore dismissed Mrs X's claim but, had it succeeded, he would have awarded her the (now) agreed sum of £29,000 by way of damages. She now appeals to this court.
The circumstances of the attack
After dinner on 17 th July Mr and Mrs X had some drinks in the hotel bar with another couple on the same holiday. When the bar closed at 2.00 a.m. they made their way back to their room. While Mr X sat outside the room, a uniformed hotel employee (now known to be a Mr Nannayakkara to whom I will refer as “N”) approached him and asked for a drink and a cigarette which Mr X was happy enough to provide. N told Mr X that he had been deported from Dubai. Mrs X then joined them and, after N had left, Mrs X told her husband she wanted to move rooms because the occupants of a neighbouring room were making a lot of noise. He suggested they should wait until the morning but Mrs X, wanting to move at once, packed a suitcase so she could go to reception and request a change of room.
As she was going to the reception, she was approached by N. She told him she was going to reception and he indicated there was a faster route through the grounds of the hotel than the one she was taking and that she should follow him which she did. (She said she trusted him because she “knew” (wrongly as it turned out) that he was a security guard). He led her through a door which he said was a short cut but was in fact the engineering room where, as the judge found, he physically assaulted her and raped her. On leaving the engineering room they bumped into Mr X who had come looking for his wife. She told him what had happened and he reported it to the hotel management, who reported it to the police. A criminal investigation was begun and a police report filed on 21 st July 2010 but nobody appears to know if N was brought to trial or, if so, with what result. It turns out that N was actually an electrician in the employment of the Hotel.
The Contract and the Regulations
Mr and Mrs X had a contract with Kuoni. Clause 5.10(b), under the heading “OUR COMMITMENT TO YOU FOR YOUR HOLIDAY ARRANGEMENTS”, provided:-
“… we will accept responsibility if due to fault on our part, or that of our agents or suppliers, any part of your holiday arrangements booked before your departure from the UK is not as described in the brochure, or not of a reasonable standard, or if you or any member of your party is killed or injured as a result of an activity forming part of those holiday arrangements. We do not accept responsibility if and to the extent that any failure of your holiday arrangements, or death or injury is not caused by any fault of ours, or our agents or suppliers; is caused by you; … or is due to unforeseen circumstances which, even with all due care, we or our agents or suppliers could not have anticipated or avoided.”
By reason of regulation 15(5) the contract has to be interpreted in accordance with the regulations which relevantly provide:-
“ Liability of other party to the contract for proper performance of obligations under contract
15. (1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.
(2) The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because —
i) the failures which occur in the performance of the contract are attributable to the consumer;
ii) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or
iii) such failures are due to
(a) unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if due care had been exercised; or
(b) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall.
…
(5) Without prejudice to paragraph (3) and paragraph (4) above, liability under paragraphs (1) and (2) above cannot be excluded by any contractual term.”
Regulation 15 transposes Article 5 of the Directive which provides:-
“1. Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services.
2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because:
— the failures which occur in the performance of the contract are attributable to the consumer,
— such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable,
— such failures are due to a case of force majeure such as that defined in Article 4(6), second subparagraph (ii), or to an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall.”
Article 4(6) has a definition of force majeure in the context of holiday cancellation.
Mrs X's case
Mrs X asserts that Kuoni agreed that services provided pursuant to the package holiday contract were to be properly performed namely that the services would be provided with reasonable care and skill. This was irrespective of whether the services were to be rendered by Kuoni or other suppliers of services. N was providing a service pursuant to the holiday contract namely guiding Mrs X to reception, a service which he (obviously) did not provide with reasonable care and skill. Equally obviously, N as the supplier of that service could easily foresee that his sexual attack was not a proper performance of his services.
The judge held that N's actions were not part of the services which Kuoni agreed to provide. He said (referring to N as “the Employee”):-
“The Employee was not the Defendant's supplier, that was the Hotel, and the Employee, when he lured the Claimant into the engineering room, was not discharging any of the duties he was employed to do. The services of an electrician who happened to be employed by the Hotel were not services which the Defendant agreed to provide to the Claimant under the contract. It was not a term of the contract between the Claimant and the Defendant that an electrician would be employed by the Hotel. The highest it can be put is that the Defendant agreed that the Hotel would supply electricity and would, in so doing, take reasonable care and skill. It was no part of the contract between the Claimant and the Defendant that any electrician employed by the Hotel for that particular purpose would also provide the Claimant with general assistance such as showing her a short cut to reception.”
Kuoni's obligations
Mr Robert Weir QC for Mrs X put his case primarily on breach of contract but also, if necessary, on regulation 15. The regulations do not specify what obligations the contract must contain but merely say that “the other party to the contract is liable to the consumer for the...
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