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
Absolute/Strict
liability
·
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
Vicarious
liability
Contributory
negligence
Negligence
By Inkeepers
·
Malaysia
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