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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> X v Kuoni Travel Ltd  EWHC 3090 (QB) (30 November 2016)
Cite as:  EWHC 3090 (QB)
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|KUONI TRAVEL LTD
Mr William Audland QC (instructed by MB Solicitors Limited) for the Defendant
Hearing dates: 10, 11, 12, 13 October 2016
Crown Copyright ©
His Honour Judge McKenna :
Introduction and Background
"The victim left her room after an argument with her husband. On her way to the reception area she met a member of staff who offered to show her a short-cut. Following this, she was lead to the engineering room where she was held against her will and forced to have sexual intercourse with the staff member"
"This is to certify that Mrs X of … made a complaint on 17th July 2010 stating that she was raped by a casual staff who is attached to maintenance department at Hotel [A] Hotel.
Complainer was produced to IMO (Balapitiya). As per the complainer I inquired into the matter and arrested the suspect on the same day and produced to the magistrate court Balapitiya on the 18th and suspect was remanded. On the 20th an identification parade was held in front of magistrate Balapitiya and the complainer couldn't identify the suspect.
Further investigations will be carried out."
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 is liable;
iii) (on the basis that the Defendant is liable to the Claimant), whether the Defendant is entitled to rely on any of the statutory defences and;
iv) (assuming liability is established) quantum, albeit that the parties have agreed all issues of quantum save the issue of past and future loss of earnings including pension.
The Contract and the 1992 Regulations
"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."
"15(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."
"(a) Dr McLennan believes that she could have worked as a podiatrist, and indeed she did so between her return to work after 5 weeks sick leave, until her absence on Maternity Leave.
Dr Wylie concurs with this.
(b) Dr McLennan believes her employers could have made Reasonable Adjustments to accommodate her issues with men, had these been disclosed to them, to continue to work as a podiatrist. There is no evidence that she disclosed these issues, despite her assertions to Dr McLennan ...in parenthesis Dr McLennan revised this opinion in her supplementary report after sight of occupational health records).
Dr Wylie concluded that as a result of the rape it is understandable that she was unable to continue to work as a podiatrist. While she has recovered form a psychiatric perspective, he believes she would be potentially unable to return to this line of work without the risk of the re-emergence of psychiatric symptomatology.
Dr Wylie accepts that, if it had been possible to ensure that she was dealing only with females in the course of her work, then this adjustment may have sufficient to permit her to return to this line of employment. He understood that such an adjustment could not be ensured and would be willing to concede this point were he to be shown that such adjustments could have been implemented and ensured.
(c) Dr McLennan is of the opinion that Mrs X was clearly fit to engage with remunerative employment, which she chose in a socially vulnerable situation from mid-2012. Dr McLennan views this as being the date from which she could have returned to remunerative employment, in her previous role or to an adjusted role, as agreed with her employers.
Dr Wylie is of the opinion that Mrs X was fit to return to remunerative employment from the autumn of 2012 with the caveats he states as above and with regard to working as a podiatrist.
(d) Dr McLennan concluded that if she did not wish to return to her role as a podiatrist, she could have been accommodated within the NHS in an alternative role, given that she was a graduate with managerial level skills and experience. There is no evidence that this was explored with her employers in NHS Grampian and she seems to have chosen not to commence employment with NHS Glasgow.
While Dr Wylie agrees that she would not have been precluded from returning to alternative work within the NHS this would have to have been in an environment where she would not perceive being placed in vulnerable situations with males. Dr Wylie considers that to express an opinion as to the potential availability of such a post is outwith his area of expertise."
The circumstances of the attack
"Please identify the individual features of the uniform which lead the Claimant to believe that the member of staff worked as a security guard?"
To which the response was:
"The distinctive colour and style of his uniform identified the assailant as a security guard in the employment of the hotel, The Claimant and her husband had identified the assailant as a security guard in the employment of the hotel prior to the assault through observing him in the course of his duties. The assailant also identified himself to the Claimant during a conversation that he worked as a security guard at the hotel. The Claimant was also informed by the hotel manager that the assailant was an employee of the hotel."
"However, as was reported to our representative Mr Dilshan and Kuoni at the time, my wife was sexually assaulted by a member of hotel staff at [A] Hotel on July 17th 2010. As a result of this incident, an attack by one of Kuoni's supplier's staff members, we were not only unable to enjoy our holiday, but have also spent the period since our holiday in a state of high stress and anxiety as we await the results of my wife's HIV / AIDS test, and a paternity test as we have since discovered that my wife is pregnant."
"On 17 July 2010 our client was sexually assaulted by a member of hotel staff at [A] Hotel hotel. Our client was walking towards reception, when a staff member approached her. Our client was informed that there was a "short-cut to reception". Our client followed the staff member. She was taken by force into a room and sexually assaulted."
Improper performance of the holiday contract
i) what functions or field of activities have been entrusted to the employee and;
ii) whether there is a sufficient connection between the position in which he was employed and his wrongful conduct,
to make it right for the employer to be held liable under the principle of social justice.