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.

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.

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.

X v Kuoni Travel Ltd [2021] UKSC 34

To discuss this, or any other employment or dispute resolution matter, please contact Jane by phone, by emailing info@hartbrown.co.uk or start a live chat today.

*This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Jane Crosby

Partner, Head of Dispute Resolution & Accredited Mediator

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises...

Partner, Head of Dispute Resolution & Accredited Mediator

Jane Crosby

Jane is a Partner based in the Guildford office and she is also Head of the Dispute Resolution team here at Hart Brown. Jane specialises in employment Law and commercial litigation and brings more than 15 years' experience to her role.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.