INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW for in the contract included the requirement of the hotel staff to be helpful when asked for assistance by a guest whereas N had in no way assisted Mrs X in a reasonable way which therefore constituted improper performance of the holiday arrangements, in their joint judgement the Master of the Rolls and Lady Justice Asplin agreed that reasonable people in the position of Kuoni and Mrs X would not have understood at the time the contract was made that Kuoni was promising that such activity would be carried out to a particular standard. Due to the fact findings, Mrs X, at the material time, had been aware that N was not a member of the hotel’s security team but a member of the maintenance team only. They also agreed with the High Court that the hotel, and not N, was the supplier of the services performed by N as Kuoni had no direct relationship with N. The majority argued that regarding an employee, such as N, as supplier, would “nullify” the exclusion of liability according to regulation 15(2)(c)(ii) in any case of a deliberate wrongful conduct of such employee. Moreover, a package holiday operator, such as Kuoni, could not protect itself by obtaining an indemnity as the culpable employee could not be identified in advance of the wrongdoing. The majority considered it unnecessary to decide the question of vicarious liability on the part of the hotel for N’s conduct because even if the hotel were vicariously liable Kuoni could nevertheless rely on the statutory defence incorporated into its booking conditions. 4) THE SUPREME COURT’S REFERENCE FOR PRELIMINARY RULING Having identified the two main issues: • Did the rape and assault of Mrs X constitute improper performance of the obligations of Kuoni under the contract? • If so, is any liability of Kuoni in respect of N’s conduct excluded by clause 5.10(b) of the contract7 and/or regulation 15(2)(c) of the 1992 Regulations? 7 Clause 5.10.(b) of the contract provided as follows: “Subject to (d) we will accept responsibility if due to fault on our part, or that of our agents or suppliers, any part of your holiday arrangements booked before your departure from the UK is not as described in the brochure, not of a reasonable standard, or if you or any member of your party is killed or injured as a result of an activity forming part of those holiday arrangements. We do not accept responsibility if and to the extent that any… injury is not caused by any fault of ours, or our agents or suppliers; is caused by you;… or is due to unforeseen circumstances which, even with all due care, we or our agents or suppliers could not have anticipated or avoided.”
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