The victim, known as Mrs X, claims damages against Kuoni for breach of contract and/or under the old Package Travel Regulations following the attack in 2010. Her case was dismissed by the High Court and subsequently the Court of Appeal in March last year.
However, the victim took an appeal to the Supreme Court, which sitting in Cardiff on Wednesday (24 July) decided to consult the European Court of Justice for assistance with two key matters in its efforts to determine whether the operator should be liable.
Mrs X and her husband were on a Kuoni package holiday in Sri Lanka over 8-23 July 2010 when the incident happened. During the early hours of 18 July 2010, Mrs X was making her way through the grounds of the hotel to ask reception for a change of room.
She came across an employee “N” who was employed by the hotel as an electrician and was known to Mrs X as a member of hotel maintenance staff. N was on duty and was wearing his hotel uniform when he offered to show Mrs X a shortcut to reception. Instead, he took her via the engineering department where he raped and assaulted her.
In its analysis of the decision by the Supreme Court, travel law specialist Travlaw noted that unlike the High Court and Court of Appeal rulings, “the Supreme Court did find guidance by a member of the hotel’s staff was a service within the ‘holiday arrangements’ which Kuoni had contracted and therefore agreed with the claimant that the rape and assault constituted improper performance".
Mindful of the potential ramifications for the travel sector of its decision, the Supreme Court has granted Abta permission to intervene and provide submissions.
Claire Mulligan, partner and travel law expert at Kennedys, which is representing Abta, said a full ruling was now not likely this year.
“We will have to wait for the European court to consider the case before we have a definitive answer to the question of whether a tour operator will be liable for the criminal acts of hotel employees against hotel guests or tour operator customers for which a hotel would not be liable under local law,” said Mulligan.
“The EU CJ [Court of Justice] will determine if a defence pursuant to the 1992 Package Travel Regulations will stand to protect an operator in these circumstances.
“To date, the judgments in the first instance and court of appeal have been helpful to tour operators and have supported the much accepted approach that operators can rely on the defence under Regulation 15 2 c for incidents and accidents.
“The referral of the matter to Europe will mean more uncertainty to those dealing with cases under the old Package Travel Regulations. It seems unlikely that we will have a confirmed decision in this calendar year.”
A Kuoni spokesperson said: "Kuoni continues to have utmost sympathy for the claimant. While we remain keen to see the matter resolved, we would welcome the European Court’s guidance in the hope this may clarify an important point of law for those working within the travel industry sector.”
