A Wicked Deed’s Curse Will X v Kuoni change the organiser’s liability? Michael Wukoschitz 1) Introduction The rape of a traveller during a package holiday in Sri Lanka and the claims brought against the package organiser were hotly debated in the UK and beyond, leading to an ECJ judgment on the interpretation of the term 'supplier' and the scope of the organiser's defence under the PTD 1990 of a failure due to an event which the organiser or the supplier of services, even with all due care, could not foresee or forestall. The article aims to provide an overview of the facts of the case and the judgements of the various court instances and to provide an analysis of the impact of the ECJ judgement and the resulting UK Supreme Court judgement - not from the national perspective of UK law, but from the broader perspective of EU law. 2) The case facts In April 2010, Mr and Mrs X booked a package holiday in Sri Lanka with the tour organiser KUONI. The package included return flights from the United Kingdom and 15 nights’ allinclusive accommodation at the Club Bentota hotel between 8 and 23 July 2010. In the early hours of 17 July 2010, following a disagreement with her husband, Mrs X left the room with the intention of requesting a change of room because of noise from a nearby room, and to make a phone call to the United Kingdom. On her way she encountered a hotel employee (“N”), who was known to her as employed by the hotel as an electrician. N was on duty and wearing the uniform of a member of the maintenance staff. He offered Mrs X to show her a shortcut to reception, which she accepted. However, instead of leading Mrs X to the reception N lured her into the engineering room where he raped and assaulted her. Mrs X and N then left the engineering room together and shortly afterwards bumped into Mr X, who had been looking for his wife. N then left the scene and Mrs X reported to her husband what had happened which he in turn reported to the management of the hotel. The attack was reported to the local police and a criminal investigation was commenced, but the outcome is unknown. Mrs X claimed damages against KUONI for breach of contract and/or under the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the 1992 Regulations”)1 which in the United Kingdom implemented the PTD 1990.2 KUONI denied that the rape and assault by N constituted a breach of any of its obligations under the contract or the 1992 Regulations. In particular, KUONI denied that the rape and assault constituted improper performance of the package contract. 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 1 SI 1992/3288, https://www.legislation.gov.uk/uksi/1992/3288/contents/made. 2 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 3 X v Kuoni Travel Ltd [2016] EWHC 3090 (QB).
RkJQdWJsaXNoZXIy MTE4NzM5Nw==