“NO LIFEGUARD ON DUTY, SWIM AT YOUR OWN RISK”
Duty of Care in 5-Star Hospitality: Lessons from a Tragic Pool Incident

 Introduction

The Court of Appeal has recently in the Civil Appeal No.: W-04(NCvC)(W)-330-07/2022 reversed a decision of the High Court (who affirmed the decision of the Sessions Court) and allowed a negligence claim filed by the grieving dependents of a young teacher from China (“Plaintiffs”) who tragically drowned in a 5-star hotel’s (“Defendant”) 3-meter depth swimming pool in 2017.

The issues revolve around, among others, the hotel operator’s duty of care, the legal effect of a warning signboard placed near the swimming pool, and whether the defence of volenti non fit injuria applies.

Proceedings in the Sessions Court and the High Court

The Plaintiffs commenced the action against the Defendant in the Sessions Court for damages arising from the deceased’s death based on, among others, the tort of negligence.

The Sessions Court dismissed the Plaintiffs’ action. The High Court affirmed the Sessions Court’s decision.

Both the Sessions Court and High Court decided that the Plaintiffs failed to prove on a balance of probabilities that the Defendant was negligent with regards to the drowning incident based on, among others, the following findings of facts:

(1)          there was a signboard at the entrance of the swimming pool which stated that no lifeguard was on duty at the pool and the pool was used by a hotel guest at his or her own risk. The warning signboard provides that:

(2)          along the pool at various points, there were signs at the side of the pool which stated the depth of the pool at those points; and

(3)          there were “safety float lines” dividing the pool according to the various depths of the pool.

Both the Sessions Court and High Court accepted the Defendant’s argument on the defence of volenti non fit injuria (meaning: the claimant had assumed the risk involved and injury suffered) to resist the Plaintiffs’ action.

The Plaintiffs appealed to the Court of Appeal against the decisions of the High Court and Sessions Court.

Decision of the Court of Appeal

The Court of Appeal reversed the decisions of the High Court and Sessions Court and decided that the Defendant is liable to the Plaintiffs under the tort of negligence.

The Court of Appeal emphasised the Defendant’s duty of care to the deceased, citing the Federal Court judgment in Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008 that the Defendant owed a duty to take reasonable care to ensure that the deceased did not suffer any injury or death while swimming in the pool. The existence of the Defendant’s duty of care is premised on the following reasons:

(1)          there was “sufficient legal proximity” between the deceased and the Defendant in the sense that it was reasonably foreseeable that if the Defendant did not exercise reasonable care regarding the pool, the deceased would suffer injury or death if the deceased swim in the pool; and

(2)          the existence of the Defendant’s duty of care is not negated by any policy consideration.

Further, the Court of Appeal identified a few exceptional reasons to dispute the findings of the Sessions Court and High Court as follows:

(1)          the deepest part of the swimming pool was 3 meters – which may cause the drowning of any guests of the hotel; 

(2)          the Defendant operates a “5-star” hotel. Consequently, the extent of the Defendant’s duty of care should commensurate with the payment of the hotel charges made by the deceased, as well as the deceased’s expectation of a “5-star” duty of care owed by the Defendant to the deceased;

(3)          in view of the 3-meter depth pool, any reasonable operator of a “5-star” hotel should have ensured that:

(a)          a certified lifeguard should be on duty at the pool when the pool was open to the hotel guests (including the deceased); and

(b)          an employee of the Defendant should be monitoring the CCTV installed at the pool. If otherwise, why would the “5-star” hotel install the CCTV in the first place.

Premised on these reasons, the Court of Appeal decided that the Defendant as the hotel operator has breached its duty of care to the deceased.

What about the warning signboard?

Let us not forget about the warning signboard at the entrance of the pool. Does the disclaimer notice or exclusion clause sufficient to serve as a “shield” to absolve the Defendant of its duty of care?

Based on the facts of the case, the Court of Appeal decided in favour of the Plaintiffs or the deceased as follows:

(1)          the warning signboard was written in English. There was no evidence that the deceased understood English;

(2)          if the Defendant had intended for the warning signboard to exclude the Defendant’s liability for the deceased’s death, the Defendant should have explicitly communicated the exclusion clause to the deceased in writing when the deceased first checked into the hotel. This was however not done by the Defendant.

What about the defence of volenti non fit injuria?

The Court of Appeal rejected the Defendant’s defence of volenti non fit injuria and decided that it can only be invoked if a victim of a tort has voluntarily agreed to assume the risk of harm to the victim (see Slater v Clay Cross Co Ltd [1956] 2 QB 264).

Based on the facts of the case, the Court of Appeal decided that while the deceased voluntarily took the risk of swimming in the pool, he did not voluntarily take the risk that the Defendant would be negligent in not monitoring the CCTV installed at the pool.

Conclusion

There were other aspects of law being discussed by the Court of Appeal such as a dependency claim, admission of foreign documents, tort of occupier’s liability and adverse inference being drawn when the general manager of the Defendant who offered to compensate the Plaintiffs was not called as a witness.

Nevertheless, this Court of Appeal’s decision serves as a guide to the hospitality industry as well as public swimming pool operators to uphold a reasonable duty of care in ensuring adequate safety measures to their guests, considering the foreseeable risks involved with the facilities. The Court of Appeal’s decision also highlights the need for a clear communication between the operators and the guests, particularly if the operators wish to rely on any warning signboard and disclaimer notice to exclude their liabilities.

The information in this article is intended only to provide general infor­mation and does not constitute any legal opinion or professional ad­vice. For further information and advice on this article and/or on any areas of Coporate and Coomercial Dispute Resolution, please contact Cheah Soo Chuan at soochuan.cheah@taypartners.com.my

Cheah Soo Chuan
Partner
T: +603 2050 1987
soochuan.cheah@taypartners.com.my

Erin Lim
Associate
erin.lim@taypartners.com.my