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Ally Tow
Ally Tow,
SENIOR ASSOCIATE - CHARTERED LEGAL EXECUTIVE
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Scope of hoteliers' liability for employees actions
04 January 2017

Hoteliers will be interested and pleased to learn the outcome of a recent case in a claim for personal injury following a particularly nasty attack by one of the hotelier’s employees on a guest. The court found that the claimant had been sexually assaulted by an employee of the hotel but that the hotel was not liable to pay damages to the claimant as the employee’s actions did not form any part of the contractual services which the hotel had agreed to provide.

The claim

In X V Kuoni Travel Ltd [2016] the claimant sought damages for personal injury and other losses arising out of a sexual assault said to have taken place on 17 July 2010 during a 14 day all-inclusive package holiday which included accommodation at a hotel in Sri Lanka (“the Hotel”).

It was common ground between the parties that the holiday was a package holiday within the meaning of the Package Travel, Package Holiday and Package Tour Regulations 1992 (“the 1992 Regulations”) and the Hotel was a supplier within the meaning of Regulation 2(1) thereof.

The alleged facts of the case

The claimant alleged that on 17 July 2010, whilst on her way back to her room with her husband and another couple staying at the Hotel they met and spoke briefly to an uniformed Hotel employee (“the Employee”). Sometime later, following an argument with her husband, the claimant left their room with the intention of going to reception to complain about noise coming from a nearby room and also to make a telephone call to the United Kingdom.

On the way to reception she met the Employee again who told her that there was a quicker route to reception. He invited her to follow him, which she did. He led her into an engineering room where, she alleged, he physically assaulted and raped her (“the sexual assault”).

The defendant denied any liability for the Employee’s actions and the claimant issued proceedings.

The issues for determination

(i)           The circumstances of the sexual assault including whether or not the claimant was raped;

(ii)          Whether the sexual assault amounted to a failure of performance or more accurately an improper performance of the holiday contract for which the defendant was liable;

(iii)         (on the basis that the defendant is liable), whether the defendant is entitled to rely on any of the statutory defences in the 1992 Regulations; and

(iv)         (assuming liability is established) quantum.

The contract and the 1992 Regulations

Clause 5.10(b) of the contract between the parties provided:

“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.”

Regulation 15 of the 1992 Regulations provides:

“(1)    The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.

(2)      The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because:

(a)      the failures which occur in the performance of the contract are attributable to the consumer;

(b)      such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or

(c)      such failures are due to:

(i)      unusual and unforeseeable circumstances beyond the control of the party by whom the exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or

(ii)      an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall.”

The Court’s findings

Having heard extensive oral evidence, the court concluded that the claimant had been the subject of the sexual assault.  However, it did not consider that the actions of the Employee formed any part of the contractual services which the defendant agreed to provide with reasonable care and skill. The Employee was not the defendant’s supplier, that was the Hotel, and when he lured the claimant into the engineering room, the Employee was not discharging any of the duties he was employed to do.

There had been a dispute between the parties as to the basis upon which the Employee was employed by the Hotel. In this respect, the court accepted the defendant’s contentions, namely that the Employee was employed by the Hotel as an electrician. It was not a term of the contract between the parties that an electrician would be employed by the Hotel. The court considered the highest it could be put was that the defendant agreed that the Hotel would supply electricity and would, in doing so, take reasonable care and skill. It was no part of the contract between the parties that any electrician employed by the Hotel for that particular purpose would also provide the claimant with general assistance such as showing her a short cut to reception. The sexual assault was not an activity forming part of the holiday arrangements within the meaning of clause 5.10(b) of the contract.

Furthermore, the court considered the sexual assault was an event which could not have been foreseen or forestalled even with all due care. The Hotel’s employment of the Employee was done with reasonable care, he was a man of good character and there were no previous reports or complaints of a similar nature.

Lastly, the court considered the question of vicarious liability.  For an employer to be vicariously liable for an employee the wrongful conduct must be so closely connected with acts the employee was authorised to do that for the purposes of the liability of the employer to third parties, the wrongful act may fairly and properly be regarded as being done while acting in the ordinary course of an employee’s employment.

In this case, the court did not consider there was any close connection between his duties and the sexual assault as to make it just for the Hotel or indeed the defendant to be held liable for that attack. The offer to show the claimant a short cut to the Hotel’s reception had no connection whatsoever with his duties. It followed that the Hotel was not vicariously liable for the Employee’s actions.

In all the circumstances, the court dismissed the claimant’s claim.

For more information about the issues raised in this article or to find out more about how the Leisure & Hospitality team can help you please contact Ally Tow on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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