Following a four-day trial before HHJ McKenna (sitting as a Deputy) in October judgment was recently handed down in the case of X v Kuoni Travel Limited [2016] EWHC 3090 (QB). The Defendant Tour Operator Kuoni Travel Limited (D), represented by William Audland QC and Gary Tweddle of MB Law, was found not liable to the claimant (C) for a rape committed by an employee (N) of the Sri Lankan Hotel where she was staying.
The essential facts were that in the early hours of the morning C, who was drunk at the time, was making her way to reception when she bumped into a member of staff (N) who offered to show her a short cut but in fact took her to the Engineering Room where he raped her.
C’s pleaded case was put on the following basis.
1. By their terms and conditions D accepted contractual vicarious liability for personal injury caused by the negligent acts or omissions of the Hotel, its servants or agents and was liable in contract.
2. D was vicariously liable for the criminal acts of the Hotel staff by reason of the “supervisory control” which D had over the Hotel.
3. D was vicariously liable pursuant to Regulation 15 of the Package Travel etc. Regulations 1992, a criminal assault by a Hotel employee on duty being an improper performance of the contractual services which D agreed to provide her with reasonable skill and care (per the case of Hone) pursuant to the contract.
4. D was liable in negligence or breach of contract in (i) their selection and auditing of the Hotel which included a duty to audit the recruitment and performance of all Hotel employees; (ii) their own failure to supervise N; (iii) their employment of an aggressive staff member (N); (iv) their inadequate vetting of the Hotel staff or of complaints about them.
D’s defence was this.
1. By the express terms and conditions of the contract D confined any liability in respect of personal injury to that sustained “as a result of an activity forming part of those holiday arrangements” and further that D did not accept responsibility for “unforeseen circumstances which, even with all due care, we or our agents or suppliers could not have anticipated and or avoided”. This term mirrored but did not go beyond Regulation 15.
2. D cannot be vicariously liable for N’s criminal conduct.
a. It was agreed by the experts that the Sri Lankan law of vicarious liability followed English law.
b. The Hotel could not have been vicariously liable to C for N’s rape: there was no close connection of the kind required pursuant to the recent case of Mohamud and earlier English authority. The attack was a random attack by N which formed no part of what N’s duties as an electrician. N was not acting in the course of his employment, and was not performing any of the contractual services which D agreed to provide under the contract.
c. D could not be vicariously liable for the Hotel/N whether under the contract or the Regulations.
3. Regulation 15 has no application as a criminal assault of this kind does not amount to the improper performance of any service which D agreed to supply pursuant to the contract.
a. A random assault of this kind was not an “activity forming part of the holiday arrangements” which D agreed to provide to C pursuant to the contract.
b. By the contract D did not agree that an electrician would be employed by the hotel and did not agree to provide the services of such; at best it only agreed to provide electricity at the hotel with reasonable care and skill. Had no electrician been employed at the hotel C could not have sued D in breach of contract.
c. The House Rules imposed by the hotel on its employees (e.g. requiring them to be courteous and to help clients generally at all times) did not inform the contract between C and D.
4. Even if Regulation 15 did apply D had a complete defence under Regulation 15(2)(c): such an assault could not have been foreseen or forestalled even with all due care.
5. C’s case effectively sought to impose an absolute obligation that D warranted the safety of C at all times during the holiday of the sort which the Court of Appeal had rejected in Hone.

C’s case had always been that N was employed as a security guard, whereas D’s case is that N was employed as an electrician. By the time of trial D had disclosed and served a considerable body of evidence including (i) N’s employment file which revealed that all Sri Lankan procedures (as a matter of custom and practice, which was established through the experts in Sri Lankan law) had been complied with, that N was a man of previous good character, and that he was employed as an electrician; and (ii) witness statements from both D’s executives and the Hotel management as to N’s employment and the reported circumstances of the assault and the subsequent hotel and police investigations. Although N had been charged the criminal proceedings had not been concluded by the time of trial and so the police file (including CCTV footage of C and N together moments before and after the rape) had not been released.

In the light of the evidence which D adduced shortly prior to trial C’s case changed. She conceded:
• that N was in fact an electrician and was dressed as such (in blue overalls) although she had believed him to be a security guard because that is what he had told her earlier;
• that D had no control over the hotel’s employees and that the recruitment of N complied with local law, custom and practice and that there was no reason for D or the hotel to have identified N as a risk;
• that D did not itself breach its duty of care to C, nor was it itself vicariously liable for N.

At trial C sought to marginalise the issue of vicarious liability. Her amended case was put squarely on the basis that the assault by N while on night duty was an improper performance of the contractual services which D agreed to provide, which included all the services of all employees connected with the Hotel who had to discharge their duties with reasonable skill and care. As the rape happened after N offered to help C it was within the scope of the contractual services D agreed to provide.

The judge found that (i) C and her husband were both very drunk at the material time; (ii) N had never told C that he was a security guard – C had always known from his uniform that N was not a security guard and she and her husband had embellished their evidence in order to bolster their case; (iii) the assault did take place but (iv) it was not one which could have been foreseen or forestalled even with all due care.

In terms of the legal issues the judge essentially accepted D’s arguments.
• The actions of N formed no part of the contractual services D agreed to provide with reasonable skill and care: he was not discharging any duties he was employed to do.
• Were C to succeed that would be tantamount to implying a term that D warranted the safety of C at all material times while she was staying at the hotel, which ran contrary to the decision of the Court of Appeal in Hone.
• There was no close connection between N’s duties and the attack to make it just for the hotel or indeed for D to be held vicariously liable to C. The offer of a short-cut had nothing to do with his duties as electrician: it was part of his luring her to the scene of the rape.
• If Regulation 15 had applied the Defence under 15(2)(c) was made out: this attack could not have been foreseen or forestalled.

The successful defence of this claim involved a number of litigation challenges.
• Initially the English court stayed the claim pending conclusion of the criminal proceedings in Sri Lanka. When it became apparent that those proceedings were not going to be concluded in the near future, if at all, the claim proceeded to trial. That meant, however, that D never had the benefit of important evidence from the police file, including CCTV footage of C and N taken both before and after the rape. Accordingly, D did not admit but did not challenge the fact of the rape.
• Initially D had difficulty obtaining the requisite documentary and witness evidence from the hotel. A decision was taken not to pursue the hotel (although an Additional Claim against it had been issued) but to persuade it to assist D in defending the claim (and potential further proceedings) by producing all relevant evidence. In the end, with considerable effort, this was achieved, but it required personal visits to the hotel in order for that to happen. As a result, D managed to obtain the employment file of N and a considerable amount of helpful documentary and witness evidence.
• The Sri Lankan witnesses gave evidence by video-link. This was not without considerable logistical and technical difficulties – at times the time-lag was almost 10 seconds – but the evidence of these witnesses had a far greater impact than it would have had had they not been tendered for cross-examination and questioning by the judge. It is an expense worth budgeting for at an early stage if you are defending a case to trial with foreign witnesses.
• The importance of expert evidence as to local custom and practice cannot be underestimated in a case where the evidence is that there are no stipulated standards. This was particularly so in the case of the allegations of negligent vetting and recruitment. It was the combination of expert evidence as to custom and practice coupled with N’s employment file and the witness evidence from the hotel management which caused C to abandon all such aspects of her case shortly before trial.