X v Kuoni Travel Limited  EWHC 3090 (QB): Tour Operator Liability for Rape by Hotel Employee - William Audland QC, 12 King's Bench Walk
19/01/17. William Audland QC of 12 King’s Bench Walk and Gary Tweddle of MB Law represented the Defendant in this case where the Claimant, who was raped by an employee of a Sri Lankan Hotel, sued the Defendant tour operator that had organised the package holiday.
This important case considers the interaction between the statutory vicarious liability a tour operator has under the Package Travel, Package Holidays and Package Tour Regulations 1992 for the actions of its suppliers and the actual vicarious liability between an employee and an employer where the employer is a supplier of services. Readers will know the English law on vicarious liability has been in a state of flux (see Mohamud v Morrison Supermarkets PLC  UKSC 11). To get around difficulties with vicarious liability arguments at trial the claimant ran her case purely in contract but the judgment provides a marker that claims against a tour operator for a random assault by an employee of a supplier of services are difficult to win. Depending on the facts, it is difficult for claimants to establish that such an assault by the employee of a service provider formed part of, occurred or arose as a result of the contractual services: the judge rejected the claim on this basis and found there to be no breach in contract or Under Regulation 15. The case also provides a useful example (obiter) of a successful defence under Regulation 15(2)(c) of the Regulations: the assault was unforeseeable or and could not have been forestalled. The Claimant has renewed her application for permission to appeal the decision to the Court of Appeal.
The Issues in the Case