THE UPDATE SCOOP (#6/2024)
Hotel Liable for Drowning Death in Pool │ Tort / Negligence / Occupier’s Liability
By TAY & HELEN WONG – May 6, 2024
A citizen of the People’s Republic of China (PRC) (the Deceased) drowned whilst swimming in the pool (Pool) at Sunway Putra Hotel in Kuala Lumpur (the Hotel) which was open to all the guests of the Hotel. His parents and dependents (P) filed an action in Qi Qiaoxian & Anor v Sunway Putra Hotel Sdn Bhd [2024] 4 MLRA 49 against the owner of the Hotel (D) based on tort of negligence and tort of occupier’s liability. The trial in the Sessions Court culminated in favour of D and P’s appeal was dismissed. On final appeal to the Court of Appeal (COA), P succeeded when the COA reversed both the lower courts’ decision.
On the attempt by D to dispute the fact that P were the parents and dependents of the Deceased, the COA pointed out that D’s top management (D’s GM) had dinner with P during which D’s GM had offered compensation to P for the drowning incident on the condition that P did not disclose the incident to the press and social media (D’s Settlement Proposal). If P were not the parents of the Deceased, D’s top management would not have invited P for dinner and made D’s Settlement Proposal to P. Thus, D was estopped by these facts from denying that P were the Deceased’s parents.
The lower courts were right in dismissing P’s claim in the tort of occupier’s liability. There were three elements of such tort. The first two elements, namely that D had a sufficient degree of control of the Pool at the time of the incident as an ‘occupier’ and that the Deceased was a guest of D in the Hotel, had been satisfied. However, the 3rd element was not satisfied because swimming in the Pool did not constitute an ‘unusual danger’ to the Hotel’s guests including the Deceased for which D had failed to take reasonable care as an occupier of the Pool to prevent the drowning.
D was however liable to P for the tort of negligence. It was common that D’s duty of care existed. There was a breach of the duty. The deepest part of the Pool was 3 metres. D operated a ‘5-Star’ hotel and the Deceased had paid for D’s services as a ‘5-Star’ Hotel. Any reasonable operator of a ‘5-Star’ hotel should have ensured that a certified lifeguard should be on duty at the Pool when the Pool was open to the Hotel’s guests and at the time of the incident, an employee of D should be monitoring the closed circuit television installed at the Pool. The breach of such duty had caused the death of the Deceased.
There was a signboard at the entrance of the Pool which stated that no lifeguard was on duty at the Pool and the Pool was used by a person at his or her own risk (Warning Signboard). The COA, however, decided that it did not absolve D of any liability. Before D accepted the Deceased as a guest of the Hotel, D did not require the Deceased to agree to an ‘disclaimer of liability’ for any injury or death which might befall the deceased when the Deceased was staying at the Hotel. The contract between the Deceased and D did not contain any clause which would exclude D’s liability for the incident. There was no evidence that the Deceased understood English, namely the contents of the Warning Signboard. Further, D’s Settlement Proposal was held to constitute an admission of D’s negligence as the cause of the Deceased’s death.
The COA also ruled that the defence of volenti non fit injuria was inapplicable. The Deceased as an adult person and with full knowledge of all the risks of swimming in the Pool had voluntarily swam in the Pool but he had not voluntarily agree to assume the risk of any harm to him which might be caused by D’s negligence.
The COA allowed the appeal with costs and awarded the damages as computed by the High Court (in the event the High Court decision was reversed by the COA).
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Tags: [drowning in hotel pool] [negligence] [disclaimer liability] [volenti non fit injuria] [occupier’s liability]