LONDON (CN) – Fighting to revive claims by a Glasgow woman who was raped on vacation in Sri Lanka, a lawyer told the Supreme Court of the United Kingdom on Wednesday that the rapist’s job at the hotel leaves a travel company liable.
The legal battle stems from a trip that Kuoni Travel Ltd. arranged in 2010 for a couple identified in court papers only as Mr. and Mrs. X.
During their stay at the four-star resort Club Bentota, Mrs. X says she was walking to hotel reception when a uniformed hotel employee offered to show her a shortcut.
Mr. Nannayakkara, as the worker is identified in a 2018 ruling, instead led Mrs. X into an engineering room and raped her.
In previous rulings the lower courts have sided with Kuoni, but Mrs. X’s lawyer Robert Weir told the high court Wednesday that Nannayakkara’s conduct amounted to a breach of his client’s contract.
“The promise of various services included the service of hotel staff providing assistance with reasonable care and skill to hotel guests with ordinary matters affecting them at the hotel,” said Weir, who is an attorney with the firm Irwin Mitchell.
Using an abbreviation for Nannayakkara’s name, Lord David Kitchin brought the issue to a head with a jarring hypothetical: “Had N. jumped out from behind a bush, he would not have been performing a holiday service, but because he offered to guide her, you say he was providing such a service?”
“Absolutely,” Weir responded. “He was on duty, on site, and agreeing to provide Mrs. X with a route to reception.”
As noted in press coverage of the case, Mrs. X was in her 30s when she was raped. She returned home to the U.K. pregnant and afflicted with a sexually transmitted disease, eventually taking a DNA test to confirm that her unborn baby was that of her husband and not her attacker. Meanwhile in Sri Lanka, according to court records, it is unclear whether Nannayakkara was ever brought to trial.
For attorney William Audland, who represents Kuoni, Nannayakkara’s job at the hotel as an electrician weighs in the travel company’s favor. Audland made the case that any duty of guidance owed to Kuoni’s customers would fall to front-facing staff at the hotel, not to maintenance workers like Nannayakkara.
Lord Brian Kerr found this argument hard to swallow.
“Surely it can’t be the case that the service is owed only by customer-facing staff,” Kerr said.
Audland insisted, however, that it would be “utterly unrealistic” to hold that all members of staff are obliged to guide customers, even in the middle of the night, as was done in this case.
Lord Lloyd Jones put another question to Audland when the lawyer said a reasonable person would not say that a hotel is required to provide such a guidance service.
“What about an obligation to provide a guidance service when reasonably requested,” Jones asked.
Audland conceded that there may be an obligation in that instance, but that it would not apply in this case as the guidance was offered rather than requested.
At bottom, though, Audland argued that Kuoni and Mrs. X’s contract made no mention of guidance services. He said Nannayakkara’s motive is important as well.
By acting dishonestly and in his own interest, Nannayakkara put his actions outside the scope of the contractual services, the lawyer argued.
Audland also emphasized that Nannayakkara had no authority to act as he did, and therefore the responsibility for his actions cannot be attributed to the tour operator.
Attorney Weir meanwhile called the issue of motive irrelevant.
“It’s what N. did, not why he did it, that counts,” Weir said.