In January 2019 we reported on the Court of Appeal decision in X –v- Kuoni Travel, in which a majority decided that the tour operator was not liable, either in contract or under the Package Travel Regulations 1992, to a holidaymaker who was raped by an employee of the hotel in which she was staying.
The case raises issues of construction of conditions of contract and the principle that the tour operator is liable for failures of other service providers and has been appealed to the Supreme Court.
The Supreme Court has now referred a number of questions to the Court of Justice of the European Union. Part of the tour operator's defence is based on the UK regulations which implement the original Package Travel Directive. Accordingly, these are issues which should properly be judged by the CJEU. One of the questions is whether the actions of a hotel employee could fall within the 'force majeure' defence, on the grounds that neither the tour organiser nor the hotel would be able to foresee or prevent the actions of the employee despite exercising all due care. If so, by what criteria should that defence be judged? Furthermore, might the hotel employee himself be regarded as a supplier of services for which the tour operator is directly responsible?
The issues are obviously of considerable importance to businesses in the travel sector, whether tour operators, hotels or other service providers whose staff conduct may affect holidaymakers. Reports suggest that a decision is not expected this year but we will follow developments and report on the decision when available.