The Supreme Court (“the SC”), following guidance from the Court of Justice of the European Union (“the ECJ”), has answered some controversial questions about the Package Travel, etc., Regulations 1992 in X v Kuoni  UKSC 34 (following a reference to the ECJ in  UKSC 37 and a judgment of the ECJ on 18.03.21 in the reference C-578/19).
Mrs X went on a package holiday to Sri Lanka purchased from Kuoni which included accommodation at the 4 star Club Bentota hotel. She was making her way through the grounds of the hotel one night when she came upon an employee of the hotel who was an electrician (and known to Mrs X as such) and who offered to show her a shortcut to the reception area. Mrs X accepted. While purporting to show her the way, the electrician raped and assaulted Mrs X.
Kuoni was obliged to provide services promised under the contract with reasonable care and skill. By regulation 15(1) of the 1992 Regulations, Kuoni would be liable to Mrs X for a failure of performance of the obligations under the contract whether the service was performed by Kuoni itself or by another person (e.g. the hotel). It would be a defence to prove that a failure in performance was due to an event which neither Kuoni nor the other person supplying services could foresee or forestall even with the exercise of all due care (reg.15(2)(c)(ii)). That provision was in different words made a term of the contract. The 1992 Regulations were made to bring into UK law the provisions of Directive 90/314/EEC.
You can read Bernard Doherty’s full post on our Commercial, Construction and International Arbitration Blog here.