Trinity Term [2019] UKSC 37 On appeal from: [2018] EWCA Civ 938

THE COURT ORDERED that no one shall publish or reveal the name or address
of the Appellant who is the subject of these proceedings or publish or reveal any
information which would be likely to lead to the identification of the Appellant or
of any member of her family in connection with these proceedings.

JUDGMENT
X (Appellant) v Kuoni Travel Ltd (Respondent)
before
Lord Kerr
Lord Hodge
Lord Lloyd-Jones
Lady Arden
Lord Kitchin
JUDGMENT GIVEN ON
24 July 2019
Heard on 1 May 2019
Appellant Respondent
Robert Weir QC William Audland QC
Katherine Deal QC Nina Ross
Achas Burin
(Instructed by Irwin
Mitchell LLP
(Birmingham)
)
(Instructed by MB Law
Solicitors Ltd (Leeds)
)
Intervener (ABTA Ltd)
Howard Stevens QC
James Hawkins
(Instructed by Kennedys
Law LLP
)
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LORD LLOYD-JONES: (with whom Lord Kerr, Lord Hodge, Lady Arden
and Lord Kitchin agree)
The facts
1. On or about 1 April 2010 the appellant and her husband (“Mr and Mrs X”,
anonymity orders having been made in respect of the appellant by the Court of
Appeal and the Supreme Court) entered into a contract with the respondent tour
operator (“Kuoni”) under which Kuoni agreed to provide a package holiday in Sri
Lanka which included return flights from the United Kingdom and 15 nights’ allinclusive accommodation at the Club Bentota hotel (“the hotel”) between 8 and 23
July 2010.
2. The contract provided in relevant part:
“Your contract is with Kuoni Travel Ltd. We will arrange to
provide you with the various services which form part of the
holiday you book with us.” (Booking Conditions, clause 2.2)
“… 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, or 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 failure of your holiday arrangements, or death
or 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.” (Booking
Conditions, clause 5.10(b))
3. In the early hours of 17 July 2010, the appellant was making her way through
the grounds of the hotel to the reception. She came upon a hotel employee, N, who
was employed by the hotel as an electrician and (on the facts found by the judge)
known to her as such. N was on duty and wearing the uniform of a member of the
maintenance staff. N offered to show her a shortcut to reception, an offer which she
accepted. N lured her into the engineering room where he raped and assaulted her.
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4. In these proceedings Mrs X claims damages against Kuoni by reason of the
rape and the assault. The claim is brought for breach of contract and/or under the
Package Travel, Package Holidays and Package Tours Regulations 1992 (“the 1992
Regulations”) which implement in the United Kingdom Council Directive
90/314/EEC of 13 June 1990 on package travel, package holidays and package tours
(“the Directive”).
Relevant legislation
5. Article 5 of the Directive provided in relevant part:
“Article 5
1. Member states shall take the necessary steps to ensure
that the organizer and/or retailer party to the contract is liable
to the consumer for the proper performance of the obligations
arising from the contract, irrespective of whether such
obligations are to be performed by that organizer and/or retailer
or by other suppliers of services without prejudice to the right
of the organizer and/or retailer to pursue those other suppliers
of services.
2. With regard to the damage resulting for the consumer
from the failure to perform or the improper performance of the
contract, member states shall take the necessary steps to ensure
that the organizer and/or retailer is/are liable unless such failure
to perform or improper performance is attributable neither to
any fault of theirs nor to that of another supplier of services,
because:
– the failures which occur in the performance of
the contract are attributable to the consumer,
– such failures are attributable to a third party
unconnected with the provision of the services
contracted for, and are unforeseeable or unavoidable,
– such failures are due to a case of force majeure
such as that defined in article 4(6), second subparagraph
(ii), or to an event which the organizer and/or retailer or
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the supplier of services, even with all due care, could not
foresee or forestall.

In the matter of damage other than personal injury resulting
from the non-performance or improper performance of the
services involved in the package, the member states may allow
compensation to be limited under the contract. Such limitation
shall not be unreasonable.
3. Without prejudice to the fourth subparagraph of
paragraph 2, there may be no exclusion by means of a
contractual clause from the provisions of paragraphs 1 and 2.”
6. Regulation 15 of the 1992 Regulations provides in relevant part:
“(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 –
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(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.

(5) Without prejudice to paragraph (3) and paragraph (4)
above, liability under paragraphs (1) and (2) above cannot be
excluded by any contractual term.”
7. Pursuant to section 13 of the Supply of Goods and Services Act 1982, Kuoni
was required to carry out the services promised under the contract with reasonable
care and skill.
The proceedings
8. At trial, Mrs X’s case was essentially that the rape and assault amounted to
the improper performance of a contractual obligation. (Before the Supreme Court,
although a claim for breach of the 1992 Regulations was maintained, counsel for
Mrs X emphasised that the claim was essentially a claim for breach of contract.) On
her behalf, it was accepted that there was no basis for suggesting that N should have
been identified as a risk. Furthermore, it was no part of her case that there was
systemic or organisational negligence on the part of Kuoni or the hotel (such as
failure to supervise N or carelessness in selecting N as an employee) causative of
the attack. The assault was caused by N alone.
9. In its defence, Kuoni admitted that it was “responsible to the claimant for the
proper performance of obligations under the holiday contract whether or not such
obligations were to be performed by the defendant or another supplier of services”
and that the “said obligations would be performed with reasonable skill and care”.
However, Kuoni denied that the rape and assault by N constituted a breach of any
obligations owed by Kuoni to Mrs X under the contract or the 1992 Regulations. In
particular it denied that they constituted improper performance of any obligation
under the contract. Furthermore, Kuoni relied, by way of defence, on the clause
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5.10(b) of the Booking Conditions and regulation 15(2)(c)(ii) of the 1992
Regulations.
10. At first instance, Judge McKenna, sitting as a judge of the High Court,
concluded (at paras 44 to 48) that “holiday arrangements” in clause 5.10(b) did not
include a member of the maintenance staff conducting a guest to reception. He
further held, obiter, that Kuoni would in any event have been able to rely on the
statutory defence under regulation 15(2)(c)(ii) because the assault was an event
which could not have been foreseen or forestalled (by inference by the hotel) even
with all due care. Although it was not necessary to decide the point, he held that the
hotel would not have been vicariously liable for the rape and assault as a matter of
Sri Lankan law, which it was agreed was the same as English law for these purposes.
11. The Court of Appeal (Sir Terence Etherton MR, Longmore and Asplin LJJ)
dismissed the appeal by a majority (Longmore LJ dissenting).
12. In a joint judgment the Master of the Rolls and Asplin LJ held that on their
proper interpretation, the words “holiday arrangements” in clause 5.10(b) did not
include a member of the hotel’s maintenance team, known to be such to the hotel
guest, conducting the guest to the hotel’s reception. This was no part of the functions
for which the employee was employed (para 34). The 1992 Regulations were not
designed to facilitate a claim against a tour operator for wrongful conduct by an
employee of a supplier where that conduct was “not part of the role in which he was
employed” and where the supplier would not have been vicariously liable under
either the consumer’s domestic law or the foreign law applicable to the supplier
(para 37).
13. The majority further held, obiter, that Kuoni was not liable under either the
express terms of clause 5.10(b) or regulation 15 since N was not a “supplier” within
the meaning of those provisions. The judge had properly held that the hotel and not
N was the supplier of any services performed by N. The booking conditions referred
to “our agents or suppliers”, which denoted a need for a direct contractual or
promissory relationship between Kuoni and whoever was to be regarded as a
supplier. Furthermore, this reading was supported by regulation 15. Nothing in
regulation 15 suggested some other meaning of the word “supplier” in clause 5.10(b)
or the expression “supplier of services” in regulation 15 itself. The express
reservation in regulation 15(1) of “any remedy or right of action which [the package
holiday operator] may have against [the] suppliers of services” was consistent with
a direct relationship between the operator and the supplier and may be indicative of
an assumption that there would be such a relationship. In a situation where one
contracting party assumes primary and personal liability for the provision of services
by agents or suppliers to a reasonable standard to the other contracting party, the
natural meaning of “supplier” is the person who assumes a direct contractual or
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promissory obligation to provide such services and not an employee of such a person
(at paras 39 to 41). There were no discernible policy reasons for imposing liability
on a tour operator when neither it nor the hotel were “at fault” and the express
exclusion of liability under regulation 15(2)(c)(ii) pointed clearly to the contrary.
Furthermore, in such circumstances it was not realistic to suppose that the tour
operator could protect itself via an indemnity from the employee or the hotel or by
way of insurance (at paras 43 to 47).
14. The majority considered it unnecessary to decide the question of vicarious
liability on the part of the hotel for N’s conduct because even if the hotel were
vicariously liable Kuoni could nevertheless rely on the statutory defence
incorporated into its booking conditions (at para 51).
15. Longmore LJ (dissenting) concluded as follows:
(1) He was not sure that Kuoni was correct in denying that there was a
contractual obligation on the hotel or its staff to guide guests to reception but
he was sure that if a member of the hotel staff offered to guide a guest to
reception, as the judge had found, that was a service for which Kuoni
accepted responsibility for it being done to a reasonable standard (at para 11).
(2) He rejected Kuoni’s submission, founded on the judge’s finding that
N had lured Mrs X to the engineering room, that N was not providing a
service at all. Mrs X thought that N was providing a service and had every
reason to suppose that he was. Furthermore, N’s actual motive was irrelevant
(at para 12).
(3) There was no express term of the contract that any electrician
employed by the hotel would also provide Mrs X with general assistance such
as showing her to reception. However, in order that the “holiday
arrangements” at a four-star hotel, which Kuoni had contracted to provide,
should be provided to a reasonable standard, hotel staff must be helpful to
guests when asked for assistance and all the more when offering assistance.
On no view did N assist Mrs X in a reasonable way when he guided her to
the engineering room (at para 13).
“I would therefore conclude that the holiday arrangements for
Mrs X were not of a reasonable standard and constituted
improper performance within regulation 15(2). Kuoni must,
subject to any available defences, take responsibility for that.
So far, the identity of the supplier of the services is not critical.
Page 8
The Hotel supplies the service of assisting its guests and
performs that service by means of its employees. But the
question whether N was also supplying the service is critical
when it comes to a consideration of the defences. If, as the
judge held, it was the Hotel and only the Hotel which was the
supplier, Kuoni has a good defence since the improper
performance was due neither to Kuoni nor the Hotel because,
on the findings of the judge, the failure of proper performance
was due to an event which neither Kuoni nor the Hotel, even
with all due care, could foresee or forestall. The Hotel did not
fail to take up references for N and had no reason to suppose,
from past history or any other reason, that he would rape one
of the guests. If, however, N was a supplier of the service of
assisting, rather than or as well as, the Hotel, then he (as that
supplier) could foresee or forestall his own criminal activity.”
(at para 14)
(4) The use of the word “our” in Kuoni’s booking conditions could not be
decisive to indicate whether the supplier was N or the hotel (at para 15).
(5) The arguments as to who was the supplier were finely balanced and
were to be decided on principle (at para 20). In the law of England and Wales,
the governing principle is that a person who undertakes contractual liability
retains liability for his side of the bargain even if he performs it through others
(at para 21).
(6) The whole point of the Directive and the 1992 Regulations was to give
the holiday maker whose holiday had been ruined a remedy against his
contractual opposite. It should be left to the tour operator to sort out the
consequences of the ruined holiday with those with whom it had itself
contracted who could then sort things out further down the line whether with
their own employees or their independent contractor (at para 22).
(7) There was no justification for concluding that the concept of supplier
should stop with the hotel in the case of an independent contractor or an
employee. The concept of supply may be no more than a question of degree
(at para 24). However, there could be no doubt that some employees should
be regarded as suppliers.
“The captain of a cruise ship, for example, supplies the
important service of navigating the ship without exposing it to
danger; the fact that he is the employee of the shipping line
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makes little difference to the holiday makers on board and the
travel operators should not be able to deny responsibility, even
if the shipping line had taken reasonable steps to procure the
services of an experienced captain.” (at para 23)
(8) Although vicarious liability on the part of the hotel was not decisive,
he was far from certain that the hotel would not be vicariously liable under
English law for a rape carried out by an employee in uniform and represented
to the world as a reliable employee (at para 25).
The issues before the Supreme Court
16. On further appeal to the Supreme Court there were two main issues.
(1) Did the rape and assault of Mrs X constitute improper performance of
the obligations of Kuoni under the contract?
(2) If so, is any liability of Kuoni in respect of N’s conduct excluded by
clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992
Regulations?
This request for a preliminary ruling on a point of EU law relates specifically to the
second issue.
The submissions of the parties before the Supreme Court
17. The Supreme Court granted permission to ABTA Ltd (“ABTA”) (a trade
association representing British travel agents) to intervene in the appeal.
18. The parties agree that clause 5.10(b) was intended to replicate the terms of
regulation 15(2)(c) which, in turn, was intended to implement article 5 of the
Directive. It is further agreed that liability under regulation 15 cannot be excluded
by any contractual term (regulation 15(5)). The defence in contract is coextensive
with the statutory defence.
19. The principal submissions made on behalf of Mrs X in relation to the second
main issue are as follows:
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(1) Kuoni cannot rely on the contractual exclusion clause because it seeks
to exclude Kuoni’s liability for personal injury resulting from negligence
which is prohibited by sections 1(1)(a), 1(3) and 2 of the Unfair Contract
Terms Act 1977. Furthermore, to the extent that the claim is one for breach
of contract Kuoni cannot rely upon the terms of the defence under regulation
15(2)(c)(ii) which is a defence to a claim under the Regulations. This is purely
a matter of domestic law.
(2) The approach of the majority in the Court of Appeal to this issue is
unduly restrictive.
(a) If the supplier can only be someone in a contractual or
promissory relationship with the tour operator, even a hotel providing
accommodation may not qualify as a supplier of services under
regulation 15 as there can be no certainty that the tour operator will
contract directly with the hotel.
(b) Furthermore, a tour operator would be able to avoid liability
where there was ordinary operational negligence by an employee of a
hotel (let alone a sub-contractor).
(3) The defence under regulation 15(2) only arises in circumstances where
there has been a “failure to perform the contract or the improper performance
of the contract”. The defence itself applies where such failure or improper
performance is due neither to the fault of the tour operator nor to that of
“another supplier of services” for the reasons set out in sub-paragraphs (a) to
(c). Where the improper performance of the contract is fault-based, there is
no room for a “no fault” defence.
(4) Applying a restrictive approach to the interpretation of regulation
15(2)(c)(ii) and reasoning by analogy from regulation 15(2)(c)(i) and the
decision of the Court of Justice of the European Union in Anthony McNicholl
Ltd v Minister for Agriculture (Case C-296/86) [1988] ECR 1491, it must be
foreseeable that a supplier, whether contractor or sub-contractor or further
removed down the chain of contracts, will act unlawfully in the provision of
the service that the tour operator has contracted to provide.
(5) There is no requirement under regulation 15 to read “supplier of
services” so as to limit its ambit to those in a contractual or promissory
relationship with the tour operator. On the contrary, it should be given its
natural and full meaning so that it can cover any third party provided that that
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party is supplying holiday services. If N is recognised as having been a
relevant supplier, on no view can the defence be engaged because N was
himself “at fault” and did not exercise “all due care” within the terms of
regulation 15(2)(c)(ii).
(6) If the hotel and not N was the relevant supplier, the issue of the fault
of the hotel has to be considered from the perspective of the services that the
hotel has been committed by the tour operator to provide. The issue is not
whether the hotel, as a company, is directly (as opposed to vicariously) at
fault. The issue is whether the hotel as a supplier of services is at fault. If
there was fault in the provision of the relevant service, then the hotel is at
fault for the purposes of regulation 15(2). If N is not a supplier because N is
part of the hotel’s staff and the hotel is the relevant supplier, the services
supplied by the hotel must include those provided by N.
20. The principal submissions made on behalf of Kuoni in relation to the second
main issue are as follows:
(1) Kuoni joins issue with Mrs X on her submissions on the Unfair
Contract Terms Act. In particular, Kuoni relies on section 29 which provides
that nothing in the Act prevents reliance upon any contractual provision
which (a) is authorised or required by the express terms or necessary
implication of an enactment or (b) being made with a view to compliance
with an international agreement to which the United Kingdom is a party, does
not operate more restrictively than is contemplated by the agreement.
(2) On a proper construction of both the contract and the 1992 Regulations
the “supplier” is the hotel. In this regard Kuoni concedes that there is no need
to read “our suppliers” in the contract or “other suppliers of services” in the
regulation so as to limit their ambit to those in a direct contractual or
promissory relationship with the tour operator. The intention of the Directive,
as supported by the travaux preparatoires, is that “suppliers of services”
should include suppliers who are in a chain of contractual authority
descending from the tour operator, which might include sub-contractors.
(3) The word “fault” in regulation 15(2) and article 5(2) is defined by the
three subparagraphs which follow it. If, and only if, none of the three
subparagraphs applies can there be fault. “Fault” has no other meaning within
the context of this provision and no independent meaning.
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(4) There is no fault attributable to Kuoni or the hotel in the sense that
neither Kuoni nor the hotel could have foreseen or forestalled the criminal
acts of N.
(5) If the supplier of services is the hotel, N’s crime should not be
attributable to it, still less to Kuoni.
(6) N is not a supplier of services. On the contrary he was at all material
times carrying on a criminal enterprise. Those acts are not attributable to the
real supplier of services, his employer.
(7) The construction for which Mrs X contends runs contrary to the
intention of the Directive in that, if N is a supplier:
(a) A tour operator will never be able to avail itself of the defence
under regulation 15(2)(c)(ii) in circumstances where neither the tour
operator nor the supplier (here the hotel) were negligent or at fault in
any way.
(b) A tour operator is most unlikely to be able to recover an
indemnity from a supplier hotel in respect of the criminal act of that
supplier hotel’s employee which was not attributable to any
negligence or fault on the part of the supplier hotel.
For these reasons, Kuoni, referring to Tesco Supermarkets Ltd v Nattrass [1972] AC
153 and Meridian Global Funds Management Asia Ltd v Securities Commission
[1995] 2 AC 500, invites the Supreme Court to formulate a special rule of attribution
to enable a tour operator to avail itself of the defence in a case such as this.
21. The principal submissions made on behalf of ABTA in relation to the second
main issue are as follows:
(1) An employee of a hotel is not to be regarded as “another supplier of
services” for the purposes of regulation 15(2). While an employee is someone
through whom the hotel acts and whose acts are therefore those of the hotel,
it is the hotel that supplies and which has been contracted to supply the
services under the contract. On a natural reading “supplier” connotes a person
or entity responsible for the supply, not an employee of such a person or
entity. In this regard ABTA draws attention to the term “prestataire de
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services” in the French text of the Directive which, it submits, envisages the
commercial supply of services or merchandise.
(2) Notwithstanding the view of the majority of the Court of Appeal, it
may be that “another supplier of services” in regulation 15(2) includes other
contractors in the contractual chain of supply.
(3) If N is not “another supplier of services” and the hotel was not at fault
(either directly or vicariously) for N’s actions, the defence under regulation
15(2)(c)(ii) should succeed. Mrs X errs in equating fault in the provision of
the service as a result of N’s conduct with fault on the part of the hotel. The
hotel would only be at fault if vicariously liable for N’s conduct. Furthermore,
the improper performance was not due to any fault on the part of the tour
operator or hotel because it was due to an event which neither could have
foreseen or forestalled even with all due care. The defence under regulation
15(2)(c)(ii) applies generally and is not limited to situations where there is no
fault. It applies where the relevant supplier would not itself be liable for fault
either directly through its own acts or omissions or vicariously liable for its
employees. To uphold the case for Mrs X on this point would lead to the
startling result that a tour operator can be liable despite the fact that its
supplier would not be liable for the actions of its employee.
(4) ABTA accepts that if this submission is correct the majority in the
Court of Appeal erred in considering it unnecessary to decide the issue of
vicarious liability. However, it denies that the need to consider vicarious
liability would introduce further complexity and expense in national
proceedings. Not every case would require evidence of foreign law on the
issue of vicarious liability. Expert evidence on foreign law and standards is,
in any event, commonplace in package holiday claims.
(5) ABTA’s proposed construction of the defence in regulation
15(2)(c)(ii) furthers internal market considerations.
(6) Alternatively, ABTA submits that regulation 15(2)(c)(ii) affords a
defence where, as here, the acts of the employee, although performed within
the scope of apparent authority, are criminal acts.
Conclusion
22. For the purposes of this reference, the Court of Justice of the European Union
is asked to assume that guidance by a member of the hotel’s staff of Mrs X to the
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reception was a service within the “holiday arrangements” which Kuoni had
contracted to provide and that the rape and assault constituted improper performance
of the contract.
23. In order to determine this appeal, the Supreme Court refers the following
questions to the Court of Justice of the European Union:
(1) Where there has been a failure to perform or an improper performance
of the obligations arising under the contract of an organizer or retailer with a
consumer to provide a package holiday to which Council Directive
90/314/EEC of 13 June 1990 on package travel, package holidays and
package tours applies, and that failure to perform or improper performance is
the result of the actions of an employee of a hotel company which is a
provider of services to which that contract relates:
(a) is there scope for the application of the defence set out in the
second part of the third alinea to article 5(2); and, if so,
(b) by which criteria is the national court to assess whether that
defence applies?
(2) Where an organizer or retailer enters into a contract with a consumer
to provide a package holiday to which Council Directive 90/314/EEC applies,
and where a hotel company provides services to which that contract relates,
is an employee of that hotel company himself to be considered a “supplier of
services” for the purposes of the defence under article 5(2), third alinea of the
Directive?