6) The final judgement of the UK Supreme Court Based on the above interpretation provided by the CJEU, the UK Supreme Court, on 30 July 2021, delivered its final judgement unanimously allowing Mrs X’s appeal11. In this judgement, the Supreme Court returns at length to the question of whether the rape and assault of Mrs X constitutes improper performance of the obligations of KUONI under the package travel contract - the question that the Supreme Court had set as a premise for the ECJ to answer in the affirmative. No surprise therefore, that legal assessment of the Supreme Court comes to exactly that conclusion. The Court starts with quoting Jarvis v Swans Tours12 and the approach that a holiday is intended to be a pleasant and enjoyable experience – an approach which encourages a broad, not a narrow, interpretation of the holiday services contracted for. In a package holiday contract, the provider of the holiday necessarily would undertake to provide not merely transport, accommodation and meals but also to provide other services ancillary thereto. Consistent with the purpose of providing the holidaymaker with an enjoyable experience, a common sense interpretation necessarily required that the services include much more than the actual mechanics of travel or the provision of a mattress and overhead cover for the night. While the precise content of the ancillary services could vary from one contract to another, the service of looking after and serving holidaymakers courteously in matters relating to their holiday experience would be inherent in every package holiday contract. KUONI had undertaken to provide a holiday of a reasonable standard which itself had to be judged against the description of the hotel as a four-star hotel 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. 11 X v Kuoni Travel Ltd [2021] UKSC 34. 12 Jarvis v Swan Tours Ltd [1973] QB 233
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