Hope for holidaymakers when things go wrong
The dream of a tropical paradise became a nightmare, and a long-running legal battle, for one holidaymaker after she was subjected to a violent assault by a member of the hotel’s maintenance staff.
But now, eleven years on, the Supreme Court has handed down its ruling, supporting the victim’s claim and clarifying the responsibilities of tour operators for the actions of an employee of a service provider, in a judgement that has far-reaching implications.
Package tour operators have an obligation to make sure that the providers they use are up to standard. If someone on a package trip is involved in an accident or injury through the negligence of the hotel or any other service provider in the package, the holidaymaker may be entitled to make a claim on the tour operator.
This long-running case involved luxury operator Kuoni and a British holidaymaker who suffered a traumatising sexual assault at the hands of a hotel staff member at an upmarket hotel at a spot known as Paradise Island, just off the western coast of Sri Lanka.
The anonymous holidaymaker, known as Mrs X, brought a claim for damages against Kuoni under Regulation 15 of the 1992 Package Travel Regulations, holding the tour operator responsible for the proper performance of the package holiday contract, irrespective of whether those obligations were met by Kuoni directly or by a local supplier of services.
Kuoni defended the claim by arguing the actions of the maintenance employee were not part of the holiday arrangements and nor was the employee a ‘supplier of services’, and so they could not be held liable. They also argued that any improper performance was due to an event which neither they, nor the hotel could have foreseen or forestalled.
Explained Richard Sheppard personal injury lawyer of Oxley & Coward Solicitors LLP. “This was a traumatising attack by a hotel employee, wearing the uniform of the hotel, and recognised by the holidaymaker as one of the maintenance staff from previous encounters.
“Kuoni’s argument hinged on making a distinction between the hotel, as supplier of services, and their employees, which had wide implications beyond the specifics of this case, such as where a tour bus driver, employed by a local travel provider, is negligent and causes a road traffic accident, resulting in personal injury. Each successive judgement and appeal have shown the complexity of the case.”
When the case reached the Supreme Court, it was referred to the European Court of Justice for guidance on interpretation of the consumer protection underpinning the EU’s Package Travel Directive 1990, which was enacted in the UK as the 1992 Package Travel Regulations. Having received that guidance, and deciding in favour of Mrs X, the Supreme Court’s judgement has significant implications for tour operators.
The guidance from the European Court of Justice highlighted the limited circumstances in which tour operators might avoid liability, where improper performance of the package holiday contract was due to actions by the consumer themselves, or by an unconnected third party, or a force majeure or event which could not be foreseen.
Richard Sheppard added: “This Supreme Court ruling provides some reassurance for travellers looking to claim against operators for injuries sustained through the actions of employees of local suppliers”.
The Package Travel Regulations 1992 have since been replaced by the Package Travel and Linked Travel Arrangements Regulations 2018 and apply when the whole trip has been booked through a company based in England and Wales.
Guidance covering common holiday problems is available from the Foreign & Commonwealth Office at Know Before You Go.