Case:

Brief Facts:

• The Plaintiff in this case the family of Qi Qiaoxian a 22 year old citizen from the People’s Republic of China (“PRC”) who was a tourist here in Malaysia. He had stayed at a 5 Star hotel called Sunway Putra Hotel, Kuala Lumpur, (“Hotel”) who are the Defendants here in this case.
  
  
• Upon using the swimming pool facilities available in the Hotel which was open to all guests of the Hotel, he had an unfortunate accident and drowned in the Hotel’s swimming pool.
  
  
• The parents of Qi Qiaoxian filed a lawsuit in the Sessions Court against the Hotel, claiming damages for Qi Qiaoxian’s death.

THE DECISION OF SESSIONS COURT (SC) AND HIGH COURT (HC)

• The SC had dismissed the action with costs, which led to the Plaintiffs appealing the matter to the HC. The HC had also dismissed the action and upheld the decision of the SC.
  
  
• The SC and HC opined that Occupiers Liability had not been established.
  
  
• The SC and the HC also stated that the Hotel was not negligent towards Qi Qiaoxian. While duty of care was present on the hotel towards the deceased, there was no breach of said duty of care that which would eventually cause the death of Qi Qiaoxian.
  
  
• Aggrieved, Qi Qiaoxian’s family appealed the decision to the Court of Appeal

THE DECISION OF COURT OF APPEAL (CA) – APPEAL ALLOWED

• The COA allowed the appeal and both the Sessions Court’s Decision and the High Court’s Decisions were set aside. The Hotel was held liable to the family.
  
  
• The COA states that the Hotel cannot be held liable for Occupiers Liability as only two out of the three elements for the test for Occupiers Liability had been established. Element 1 was that the Hotel had sufficient degree of control of the premise so as to be liable to the Plaintiff as an occupier of the Hotel. This was satisfied.
  
  
• Element 2 is that the Plaintiff is a guest of the Hotel. This too was satisfied.
  
  
• Element 3 was that drowning of Qi Qiaoxian constituted an “unusual danger” for which the Hotel did not take reasonable care to prevent the drowning. The third element could not be established by Qi Qiaoxian’s family in this case because swimming in the Pool did not constitute an “unusual danger” to the Hotel’s guests, including the Deceased. The SC and HC’s decisions were upheld on this ground.
  
  
• However, the COA found that the Hotel was indeed negligent towards Qi Qiaoxian. All three elements to prove negligence had been established.
  
  
• The SC and the HC had correctly decided that the Hotel’s Duty of Care existed as it was reasonably foreseeable that if the Hotel did not exercise reasonable care regarding the pool, an individual would suffer injury or death if they swam in the pool. The Hotel had voluntarily assumed responsibility my making available the pool to Qi Qiaoxian as a Hotel guest.
  
  
• The COA was of the opinion that the Hotel had breached their Duty of Care towards Qi Qiaoxian. They stated that as the deepest part of the Hotel’s pool was 3 metres deep and Qi Qiaoxian had paid for the Hotel’s “5 Star” service, the Hotel should have ensured that a certified life guard be on duty at the Pool when the Pool was open to the Hotel’s guests.
  
  
• The Court further held that an employee of the Hotel should be monitoring the “Closed Circuit Television” (CCTV) which had already been installed at the Pool. If it was not monitored then why install the CCTV?
  
  
• The Court also said that the Hotel could not rely on their warning signs at the pool which said that the pool did not have a life guard and that the pool was used by a person at their own risk [Warning Sign].
  
  
• The Court held that the Hotel could not use the Warning Sign to disclaim liability because they did not require their guest to accept the disclaimer of liability at the time they were accepted as a guest of the Hotel.