Negligence in Inns
Law of Negligence
· Elements to prove negligence:
· Only owes duty for people who would foreseeably be injured by one’s action
· If cannot foresee injury, it does not owe any duty even someone is injured
Duty of Care Towards a Child Guest
· Grater when young children involved.
· Waugh v. Duke Corp – Emily walked into glass panel and suffered injuries. The court held that the defendant failed to construct guards around.
· It is the practice of Malaysian innkeepers to exhibit exclusion clauses such as, There is no life guard service etc.
· Such clauses if valid would exempt the innkeepers not only from strict liability but also total liability even though the employees may be negligent, causing injury of child visitors
· Exemption clauses – adopt normal rules of construction of contracts in declaring validity.
· Exemption clauses is not effective if not brought to the notice of the contacting parties before or at the time the contract is made and the contracting parties would be deemed to have known it if the exemption clauses were printed in the tickets or in the contract as illustrated in Malaysian Airline System Bhd v Malini Nathan & Anor.
· No matter how wide a clause is, it cannot exclude liability if there is negligence
· Section 53, Consumer Protection Act 1999 - implied guarantee of reasonable care and skill in the supply of services
Breached duty of care – by defendant
· To be liable for negligence, the defendant must not owe a duty of care to act reasonably to the plaintiff but must also breach that duty.
· Thomas v Grand Hayatt Hotel – plainitiff was modeling for fashion show, she slipped and fell when she was existing the stage.
· The defendant was not in breach of the duty to act reasonably to the plaintiff as sha does not know what caused her to slip and the defendant was unaware of a dangerous condition for her to slip.
Proximate cause – between the breach of duty and injury
· The injury must have been caused by breach of duty.
Injury/damage – plaintiff’s property / person
· To win a lawsuit, a plaintiff must have suffered injury.
Legal status and duties of plaintiff
Invitees – an invitee is requested to enter the premises in the interest of occupier
Licensees – merely permitted to enter
Trespassers - a person who is not there by invitation
Res Ipsa Loquitur
· Aids the plaintiff in circumstances which suggest that the defendant was negligent, nut no proof of specific acts of negligence exists
· A concept whereby a defendant will eliable even though it violated no duty and did nothing wrong.
· Also called absolute liability.
· The doctrine of strict liability has been extended significantly and includes all types of product
Negligence By Inkeepers
use Tort of Negligence
under common law Malaysia