INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW offering the facilities described. It was an integral part of the services to be provided on a holiday of such a standard that hotel staff provided guests with assistance with ordinary matters affecting them at the hotel as part of their holiday experience. Guidance by a member of the hotel’s staff of Mrs X from one part of the hotel to another therefore had clearly been a service within the “holiday arrangements” which Kuoni had contracted to provide. The argument that N was an electrician and that guiding a guest from one part of the hotel to another was no part of the functions for which he was employed couldn’t change anything as the scope of services which Kuoni had undertaken to provide was exclusively governed by the contract between Mr and Mrs X and Kuoni and not by the contract between the hotel and N. Same applied to Kuoni’s argument that N had not been providing a service within the package travel contract but pursuing a criminal enterprise when he raped and assaulted Mrs X: the correct focus had to be the provision of the service of guiding a guest which fell within the “holiday arrangements” which Kuoni had undertaken to provide because only as a result of purporting to act as her guide N had been able to assault Mrs X. The Supreme Court feels confirmed in this view by the CJEU, because the latter had expressly rejected a restrictive interpretation of the tour operator’s liability. 7) ANALYSIS In assessing whether the ECJ judgment in X v Kuoni will change the scope of the package tour operator’s liability from an EU wide perspective, and not just from a national UK perspective, it is necessary to consider that the judgment relates to the PTD 1990, which has been replaced (with effect from 1 July 2018) by the new PTD 201513. In the PTD 2015 the exception of failures “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” which is to be distinguished from the force majeure exception14 has been dropped. This indicates that under the PTD 1990, the liability of the 13 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC. 14 Judgement of 18 March 2012 in Case C-578/19 – X/Kuoni, para 58.
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