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August 5th 2021

Holiday Claims

Why landmark X v Kuoni Travel legal case now gives extra protection for holidaymakers

Anne Thomson

Anne Thomson

Litigation Executive, Travel

Why landmark X v Kuoni Travel legal case now gives extra protection for holidaymakers

On July 30, the Supreme Court handed down its long-awaited judgment in the case of X v Kuoni Travel Limited.

On July 30, the Supreme Court handed down its long-awaited judgment in the case of X v Kuoni Travel Limited.

Mrs X and her husband had purchased a package holiday with tour operator Kuoni, which included return flights to Sri Lanka and two weeks accommodation at the Club Bentota hotel in July 2010.

On July 17, 2010 Mrs X met a uniformed employee of the hotel, N, who had approached the couple to ask for a drink and cigarette. It was found by the judge at first instance that Mrs X, at this stage, was aware that N was an electrician employed by the hotel.

Later that night, Mrs X went to reception to ask to change rooms as their next-door neighbours were noisy. On the way, she met N who was on duty and was wearing his hotel staff uniform. He offered to show Mrs X a shortcut to the reception. Instead, he led her into an engineering room where, tragically for Mrs X, he raped and assaulted her.

Mrs X brought a claim against Kuoni and the case has been through the High Court, Court of Appeal, Supreme Court and the Court of Justice of the European Union. Her case was dismissed by both the High Court and the Court of Appeal and it eventually reached the Supreme Court.

In 2019, the Supreme Court referred some technical legal questions to the Court of Justice of the European Union. Finally, on July 30, 2021, the Supreme Court unanimously allowed Mrs X’s appeal from the decision of the Court of Appeal. After Mrs X’s long, 11-year journey she has succeeded with her claim against Kuoni.

The Supreme Court determined that the words ‘holiday arrangements’ in the holiday Booking Conditions also included N’s actions in directing Mrs X to the hotel’s reception.

Accordingly, Kuoni were found to be responsible for N’s actions. The decision of the Supreme Court relates to the 1992 Package Travel Regulations. However, the case has been going on for so long that the 1992 Regulations have been replaced by the Package Travel and Linked Travel Arrangements 2018.

What does the X v Kuoni verdict mean for holidaymakers going forward?

Irrespective of whether the 1992 or 2018 Regulations apply, the decision of the Supreme Court limits the circumstances in which a tour operator can avoid liability for the acts of an employee of their suppliers.

In simple terms, if a consumer, ie a holidaymaker, suffers an assault by a member of staff at their package holiday hotel or suffers serious injury at their package holiday hotel caused as a result of a failure on the part of the hotel’s staff, the hotelier is responsible and, in turn, the tour operator is liable for those deliberate acts of harm carried out by employees of their suppliers.

This is, of course, a great result for the consumer who now has protection if they are a victim of a harmful act by an employee at their package holiday hotel.

The findings of the Supreme Court illustrate the powerful piece of pro-consumer legislation that these Regulations provide; it goes some way to redressing the balance between David (the individual person) and Goliath (the large corporate entities that are tour operators and travel agents).

It is also a welcome result so soon after Brexit, which has created significant uncertainties and risk for consumers in a different context.

Blog written by Anne Thomson, Litigation Executive in the Travel team at Hudgell Solicitors.

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