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? the Supreme Court referred the following questions to the CJEU8: (1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates: a) is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so, b) by which criteria is the national court to assess whether that defence applies? (2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which Council Directive 90/314/EEC applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a “supplier of services” for the purposes of the defence under article 5(2), third alinea of the Directive? and asked the CJEU, for the purpose of the reference, to assume that guidance by a member of the hotel’s staff of Mrs X to the reception was a service within the “holiday arrangements” which Kuoni had contracted to provide and that the rape and assault constituted improper performance of the contract. 5) The judgement of the CJEU In accordance with the Opinion of the Advocate General9, the CJEU10 clarified that, in the event of non-performance or improper performance of those obligations, which is the result of the actions of an employee of a supplier of services performing that contract 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." 8 X v Kuoni Travel Ltd [2019] UKSC 37. 9 Opinion of Advocate General Szpunar delivered on 10 November 2020 in Case C-578/19. 10 Judgement of 18 March 2012 in Case C-578/19 – X/Kuoni.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==