A WICKED DEED’S CURSE 3) THE JUDGEMENTS OF THE HIGH COURT AND THE COURT OF APPEAL By judgement of November 30, 2016,3 the High Court at first instance dismissed the claim and considered that the actions of N did not form any part of the contractual services which Kuoni agreed to provide with reasonable care and skill. N had not been a supplier of Kuoni. Furthermore, N had not been discharging any of the duties he was employed to do. It had not been a term of the contract between Mrs X and Kuoni that an electrician would be employed by the Hotel. Much less was there an obligation for such an electrician to provide Mrs X with general assistance such as showing her a shortcut to the reception. The sexual assault had not been an activity forming part of the holiday arrangements. Quoting an earlier judgment of the Court of Appeal,4 the High Court explicitly rejected the idea of an absolute obligation that the package organiser warrants the safety of all its clients at all times. As the employment of N had been done with reasonable care, he was a man of good character and there had been no previous reports or complaints of a similar nature, the sexual assault had to be regarded an event which could not have been foreseen or forestalled even with all due care.5 Even for an employer to be vicariously liable for the employee the wrongful conduct had to be so closely connected with acts the employee was authorised to do that for the purposes of the liability of the employer to third parties, the wrongful act may fairly and properly be regarded as being done while acting in the ordinary course of an employee’s employment. N’s offer to show Mrs X a shortcut to the reception had no connection to his duties as an electrician neither was there any such connection between his duties and the attack. As therefore the hotel would not be vicariously liable the same had to apply to the package organiser. The Court of Appeal, by a majority, dismissed the claimant’s appeal6: While Lord Justice Longmore in his dissenting opinion held that the “reasonable standard” of the holiday arrangement which KUONI had accepted responsibility 3 X v Kuoni Travel Ltd [2016] EWHC 3090 (QB). 4 Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947. 5 See Article 5 (2) of PTD 1990: „With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, […] the organizer and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because […] such failures are due […] to an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall.” 6 X v Kuoni Travel Ltd [2018] EWCA Civ 938.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==