X v Kuoni Travel Ltd  EWCA Civ 938
The claimant sought damages for personal injury and other losses arising out of a sexual assault, including rape, which she alleged took place on 17 July 2010 when she was on an all-inclusive holiday in Sri Lanka. The holiday was a package holiday within the meaning of the Package Travel, Package Holiday and Package Tour Regulations 1992 (the Package Travel Regulations 1992).
The claimant alleged that the man who sexually assaulted her was a security guard who was an employee of the hotel.
High Court decision
Although the claimant did not plead that the defendant was vicariously liable for the hotel employee, the judge dealt with the issue and stated that for an employer to be vicariously liable for an employee, the wrongful conduct must be so closely connected with the acts that the employee was authorised to do, for the wrongful act to be fairly and properly regarded as being done whilst the employee was acting in the ordinary course of their employment.
In this case, it was stated that the employee was an electrician and not a security guard. As a result, there was not a close connection between the attack and employee’s duties to make it just for the hotel or the defendant to be held liable for the attack.
Court of Appeal decision
The claimant appealed the decision submitting that the defendant was contractually liable for the assault.
In respect of the defendant being contractually liable to the claimant, the Court of Appeal held that the expression “holiday arrangements” did not include a member of the hotel’s maintenance team, known to be such to the hotel guest, offering to escort the claimant to the hotel reception. Also, contrary to the claimant’s evidence, it was found that she was aware at the material time that the employee was not a member of the hotel’s security team but was a member of the maintenance team.
The defendant was not liable under the express terms of its contract with the claimant to provide holiday arrangements or under regulation 15 of the Package Travel Regulations 1992. The defendant had no relationship with the employee of the hotel who had committed the sexual assault on the claimant and the term “holiday arrangements” did not cover the incident in question.
The Court of Appeal held that the purpose of the Package Travel Regulations 1992, was not to facilitate a claim against a package tour operator for wrongful conduct by an employee of a supplier, even if the conduct was not part of the role in which he was employed and even if the supplier would have been vicariously liable under either domestic law or the foreign law applicable to the supplier.
The Court of Appeal noted that the hotel would not have been liable for the wrongful conduct of their employee because it was not sufficiently connected with the acts which the employee was authorised to do and could not be regarded as being done in the course of his employment.
The defendant was not found vicariously liable for the sexual assault committed. The claimant’s appeal was dismissed on a 2:1 majority – Lord Longmore dissenting.
What this means for you
Although the issue of vicarious liability was only briefly touched upon, this case usefully shows that the courts will look for a close connection between the employee’s duties and the negligent act or omission.
Here, the Court of Appeal noted that the employee was an electrician and not a security guard and concluded that the claimant was aware of this at the material time. As a result, the employee was not purporting to go about his actual job at the time of the incident. Also, it can be seen that there was no seamless continuation between the employee’s work as an electrician and him being in the position to abuse his role and assault the claimant.
Further, the express terms of contract along with regulation 15 of the Package Travel Regulations 1992 did not give “holiday arrangements” a wide enough meaning to cover an employee of a supplier carrying out a task which was not a part of the function in which he had been employed. As a result, the express contractual terms and Package Travel Regulations 1992 did not, in the circumstances, cover the employee’s wrongful conduct.