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On appeal from: [2018] EWCA Civ 938

The Supreme Court unanimously allowed this appeal concerning whether a hotel employee working for the respondent was in breach of contract after having raped and assaulted the defendant, and/or gave rise to liability under the Contract and the Travel, Package Holidays and Package Tours Regulations 1992 (“the Regulations”).

Background to the appeal

On or about 1 April 2010, the appellant and her husband entered into a contract with the respondent tour operator for a package holiday in Sri Lanka which included return flights from the United Kingdom and 15 nights’ all-inclusive accommodation at the Club Bentota hotel (“the Hotel”) between 8 and 23 July 2010 (“the Contract”).

In the early hours of 17 July 2010, the appellant was making her way through the grounds of the Hotel, when she came upon N, who was employed by the Hotel as an electrician. Under the pretence of showing her a shortcut to reception, N lured the appellant into the engineering room, where he raped and assaulted her.

The High Court dismissed the appellant’s claim. The Court of Appeal then dismissed her appeal. The appellant now appeals to the Supreme Court.

The appeal raises a number of questions concerning Directive 90/314/EEC on package travel, package holidays and package tours (“the Directive”), which is the EU instrument that the Regulations implement. At the hearing of her appeal, the Supreme Court decided to refer those questions to the Court of Justice of the European Union (“the CJEU”) (see the Supreme Court’s initial judgment here). The CJEU answered the Supreme Court’s questions in a judgment delivered on 18 March 2021.

Judgment

HELD – The Supreme Court unanimously allows the appeal.

The Supreme Court takes a broad view of the obligations owed by tour operators to consumers under package holiday contracts. The Court decides that those obligations include not only the provision of transport, accommodation and meals, but also a range of ancillary services which are necessary for the provision of a holiday of a reasonable standard. The precise content of those services might vary from one contract to another.

In the present case, the respondent undertook to provide a package holiday at a four-star hotel. The Court considers it to be an integral part of a holiday of such a standard that hotel staff provide guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. This includes guiding guests from one part of the hotel to another. The rape and assault of the appellant amounted to a failure to provide that service with proper care. The appellant therefore has a claim against the respondent under clause 5.10(b) of the Contract for injury suffered as a result of the breach of that obligation, and under regulation 15(2) of the Regulations for “damage caused to [her] by [the respondent’s] failure to perform the contract or the improper performance of the contract”.

Regulation 15(2)(c) of the Regulations would provide the respondent with a defence to the claim if the rape and assault were events which, “even with all due care”, the respondent could not have “foresee[n] or forestall[ed]”. This defence is replicated in clause 5.10(b) of the Contract, and itself replicates the defence in article 5 of the Directive.

In its judgment of 18 March 2021, the CJEU decided that the defence in article 5(2) of the Directive does not apply where a failure of performance of obligations under a package travel contract is the result of acts or omissions of employees of suppliers of services performing those obligations. The CJEU’s decision is binding on domestic courts in the United Kingdom.

On that basis, the Supreme Court decides that the respondent does not have a defence to Mrs X’s claim under clause 5.10(b) of the Contract or under regulation 15(2)(c) of the Regulations. The relevant acts were committed by an employee of another supplier of services, namely the Hotel.

Accordingly, the Court concludes that the respondent is liable to the appellant both for breach of contract and under the Regulations.

 

For judgment, please see:

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