Employee attack not breach of contract?

September 2, 2019 Michael 0 Comments

X v Kuoni Travel Ltd [2019]

In July 2010 X took a package holiday with her husband which they purchased from Kuoni Travel. On 18 July 2019 X was a raped and assaulted by an employee (N) of the hotel where they were staying. N attacked X while he was wearing hotel uniform and supposed to be showing X where the reception was. A breach of contract action followed.

X started an action against Kuoni for breach of contract. At trial X said that the rape and assault had amounted to the improper performance of a contractual obligation and Kuoni denied this pointing in particular to a clause in the contract which excluded liability where;

”the failure to perform the contract was due to an event which the other party to the contract, even with all due care, could not foresee or forestall”.

At first instance and on appeal to the Court of Appeal it was decided in favour of Kuoni. “Holiday Arrangements” were said not to include a member of the hotel’s maintenance team, known to be such to the guest, showing the guest to the hotel’s reception as it was not part of the function for which N had been employed.

Also at first instance, as part of his judgment, the judge stated that Kuoni would in any event have been able to rely on the statutory defence under reg 15(2)(c)(ii) as the event was not one which could have been foreseen or forestalled (by the hotel) even with all due care.

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Employee attack not breach of contract? was last modified: May 15th, 2020 by Michael

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