a review of certain liabilities in the hotel industry 22 nd iftta international conference in rome,...

1

A Review of Certain Liabilities in the Hotel Industry

22nd IFTTA International Conference

In Rome, Italy

2nd September 2010

By: Dr. Jacqueline Tanti Dougall B.A., LL.D.

2

Hotel Liability

Claims by Guests and

StaffInsurance Jurisdiction

Is there a way of

reducing liability as far as is

reasonable practicable?

Dr. J. Tanti-Dougall B.A.; LL.D.

3

Claims by Guests and Staff

ClaimsInjuries Suffered

Death

Food Poisoning

Slips/Trips and Falls

Occupational Health and Safety

by Staff

Thefts from Rooms/Cloak

Rooms etc


4

What Laws are applicable with regard to Hotel Liability?

Criminal Code

Occupational Health and

Safety

Public

Health Act

Food Safety ActCivil Code

EU Regulations

Environment Act

5

Can the Hotel rely on payments offered by insurance…?

Insured Costs

Visible

Damages awarded by the Civil Case

Legal Costs

Expert Costs

InvisibleOut of Court Settlement

Fees


6

What are the Invisible Costs?

Reduced productivity

Court Sittings

Overtime Payments

Increased insurance costs Poor Publicity

Remorse/

Grief

PainCriminal

Responsibility


“Legionnaires` Disease Scare in Luxury Dubai Hotel After Death of Cricket Broadcaster”

IA luxury hotel (Westin Dubai) is being wracked by fears of the Legionnaires` disease. Already a noted cricket broadcaster from the UK has died. Two other have reported sick. Cricket statistician and commentator Bill Frindall died on Thursday after leaving Dubai.

THE INTERNET NEWSwww.dailynews.com THE WORLD’S FAVOURITE NEWSPAPER - 1st February 2009

“Westin gets “all clear” for Legionella after death scare.” The inquiry was launched at the five star hotel by the Dubai

Nationality in coordination with the Dubai Health Authority last week, after the death of BBC radio cricket scorer Bill Frindall, who stayed at the hotel two weeks ago…

A total of 24 water samples were taken from air conditioning and water systems across the hotels facilities – all of which proved negative, according to Lootah, the director general of the municipality.

The test results proved beyond doubt that three locations at the hotel and all of them tested negative. The hotel had, in fact, conducted its routine tests three times since it opened its doors in May 2008,” Lootah said.

The Westin Newswww.arabianbusiness.com/545702. LEGIONELLA NEWS Wed. 4 February 2009

http://www.arabian/

9

EC Regulations 1348/2000 (1393/2007) on the `Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters` .

European national in one Member State could file judicial proceedings before the European Court of his Member State, and this by servicing the judicial acts onto the EU Company where the accident happened/file for claim, rendering that Company as defendant in the law suit.

?

•What happens if the case is decided in favour of the Plaintiff?

Company

•Plaintiff could enforce the relative judgment against the same company through the Member State Courts

EU

•EC Regulations 44/2001 on `Jurisdiction Recognition and Enforcement on Judgments in Civil and Commercial Matters`.

Civil Code: Chapter 16 of the Laws of Malta

• Article 1032:

A person shall be deemed to be in fault if, in his own acts,

he does not use the prudence, diligence and attention of a

bonus paterfamilias.

Arthur George Lambert versus Anthony Buttiegieg; 18 April, 1963

• The plaintiff`s 14 year old son died of asphyxia by poisoning of Carbon monoxide

• Modern Imperial Hotel – Malta (now closed)

• Buttigieg the owner, contracted another company to install water heater in the bathroom which did not have any ventilation.

13

The Contrac-tors50%

The Owner of the Hotel

40%

Maintenance Person10%

Liability


Forestals Directors – Most liable

• The Contractor who carried out the works for installing these Butane Gas in Malta, were found to be the most responsible, because they should have known of the dangers of Butane Gas, and it was through their imprudence that the boy died.

• They should have known of the dangers when there is no means for the gas to escape, and how important a “flue” was for the escape thereof.

15

The Hotelier

• The hotelier was found two fifths responsible for the death of the boy because of lack to due diligence when he commissioned the installation of butane gas in such a small bathroom.

• The Court stated that it is general knowledge that one should not install butane gas due to the dangers that it imposes, in small rooms, without having the necessary precautionary measures installed. It was his obligation to find out what were these precautionary measures.


16

The Hotelier

• It was the duty of the Hotelier to check that these precautionary measures were taken.

• Moreover, there were no warnings in the room available that when the gas heater is switched on, the window or the door should remain open for ventilation.


17

The Employee of the Contractor

• He was also found partly responsible for the death of the boy, because he received instructions from his employer, knowing full well that the installation was faulty.

• One cannot hide from his own responsibilities, and state that the contractor told him to carry out the works, knowing full well that the instructions were not correct.


18

• Decision : 20th February 2009

by the Maltese Court of Appeal.

• 11 August 1987: Date of Accident• 2009 – 1987 = 22 YEARS• The Plaintiff was 48 at the time of Accident• The Plaintiff was 70 at the time she had a

decision.


Doris May Mounfield versus Suncrest Hotel Co. Ltd.

19

Facts of the case:

• Doris May Mounfield slipped by the pool on a slippery surface, in a patch were there were no mats available in that particular area at the Suncrest Hotel (Malta).


?

20

• The Court argued that on a balance of probability, the accident or incident happened because the hotelier did not fulfill his expected obligation. Consequently, he failed to do something which he was obliged to do.

• Indeed, just like the employer who is obliged to provide a safe system of work, so too, the hotelier is obliged to provide a safe environment at all times to the guest. This failure on the part of the hotelier, is what gives rise to an action for damages.


21

• The defendant argued that in 20 years, this accident never happened in his hotel.

• This line of argument was never accepted by the Maltese Courts, and consequently it does not reduce the burden of responsibility.

• The Court further counter-argued this statement by stipulating that “the fact that the system adopted had been in use for years without incident is not proof that the system is safe. The accident in question justifies this“


22

• The fact that the plaintiff had suffered grave injury when she slipped on a slippery surface, indicates that the defendant company failed to provide a safe environment

• “An organization must justify and must guarantee

its integrity and the safety and security for the client.”

• The plaintiff was awarded Euro 87,906 plus 8 per cent interest from when the incident occurred (i.e. 22 years) by the defendant company.


23

Prescription

• What is the prescription term in relation to this accident?

• Two years or five years?

• Is such a type of accident defined under the Law of Tort/Quasi Tort?


24

2 YEARS

Extra Contrattuale (Aquiliana)

Tort/Quasi Tort (Delict)

There has not been a contract between the parties before the accident

The fact is independent and autonomous from a contractual obligation

25

The Relationship between the Hotelier and the Guest?

• The Court concluded that there is a pre-contractual obligation between them.

• However, the Court left it in the hands of the Guest, since one would have the two kinds of actions in his favour.

• It is clear that when a guest suffers an injury, it is a breach of an obligation on the part of the hotelier.


Dr. J. Tanti-Dougall B.A.; LL.D. 26

Evans versus Kosmar Villa Holidays (November 2007)

27

Improvements to Health and SafetyCheap and Easy

Order Signs

Barriers

Long Term SolutionsTraining for the risks that remain

Regular checks to ensure control measures are in place

Clear Responsibilities

Who will carry out the action, and by when


Project Description

• Objective– Add your objective here

• Results– Add your results here

28

The Main Concepts of Law

Buon Pater-familiasDue

DiligenceTraining

Employer's Duties: Creating a Safe System of Work by providing:

Training

Appropriate Supervision

Written Policy Statement

InstructionSafe Equipment

Risk Assessments

Safe Systems of Work

29Dr. J. Tanti-Dougall B.A.; LL.D.

Definition of a Health and Safety System

Safety

Freedom of danger or chance

of injury

PreventionSecurity

from RiskTo act in a way least likely to cause harm


31

Fire Escape Doors


Alexia Muscat versus Public Health – 7th July 2009

• On 30th October 1999, Alexia Muscat was a nursing aid with the Public Health.

• She fell from a ladder.

The plaintiff was 24 when the accident occurred, and that she had a 10 per cent disability, the Court decided that the defendant was to pay the plaintiff a sum of Euro 31,446.54c, together with all the Court expenses.

Dr. J. Tanti-Dougall B.A.; LL.D. 32

The Fan

33Dr. J. Tanti Dougall LL.D.,

34

DO NOT BE A TARGET FOR ACCIDENTS!

Only in Malta.comDr. J. Tanti-Dougall B.A.; LL.D.


Thank You for Your Attention

Tanti-Dougall & Associates

[email protected]