The tourist, known as X, was on a package holiday in Sri Lanka in 2010, which was booked through tour operators Kuoni. A hotel employee offered to guide her back to the reception area. Instead, he lured her to an engineering room, where he raped and assaulted her.
In X v Kuoni Travel [2021] UKSC 34, the court held Kuoni liable as the hotel worker guided her as part of the service provided under the holiday contract.
In March, the European Court of Justice ruled that a broad approach should be taken to interpreting the scope of obligations under a package contract, in X v Kuoni (Case C‑578/19). The case returned to the Supreme Court for a final ruling.
X’s solicitor, James Riley, senior associate at Irwin Mitchell, said: ‘The judgment provides clarity to tour operators regarding their legal obligations.’
Claire Mulligan, partner at Kennedys, who represented ABTA (the Association of British Travel Agents), which intervened in the case, said the decision ‘highlights that while employees of hotels are not in themselves service providers, the hotel itself is, and employees are within a hotel’s “sphere of control”.’
Mulligan said the decision raised three crucial factors for tour operators to consider.
‘First, tour operators may find themselves liable to a claim even if there is no liability on the part of the hotel or other suppliers,’ she said.
‘Consequently, they will need to carefully review booking terms and conditions to ensure that their liability doesn’t extend beyond the holiday arrangements they have agreed to provide.
‘Second, supplier contracts will need to be reviewed and updated to provide maximum protection for the tour operator and to mitigate their losses arising from claims in connection with any services provided in the package contract. Third, risk assessments should be reviewed and suppliers should consider additional CCTV in vulnerable areas of hotels and resorts and update their “house rules” and instructions given to staff.’
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