A Review of Certain Liabilities in the Hotel Industry
description
Transcript of A Review of Certain Liabilities in the Hotel Industry
![Page 1: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/1.jpg)
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.
![Page 2: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/2.jpg)
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.
![Page 3: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/3.jpg)
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
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 4: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/4.jpg)
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
![Page 5: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/5.jpg)
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
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 6: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/6.jpg)
6
What are the Invisible Costs?
Reduced productivity
Court Sittings
Overtime Payments
Increased insurance costs Poor Publicity
Remorse/
Grief
PainCriminal
Responsibility
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 7: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/7.jpg)
“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
![Page 8: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/8.jpg)
“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
![Page 9: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/9.jpg)
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.
![Page 10: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/10.jpg)
?
•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`.
![Page 11: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/11.jpg)
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.
![Page 12: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/12.jpg)
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.
![Page 13: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/13.jpg)
13
The Contrac-tors50%
The Owner of the Hotel
40%
Maintenance Person10%
Liability
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 14: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/14.jpg)
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.
![Page 15: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/15.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 16: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/16.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 17: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/17.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 18: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/18.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
Doris May Mounfield versus Suncrest Hotel Co. Ltd.
![Page 19: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/19.jpg)
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).
Dr. J. Tanti-Dougall B.A.; LL.D.
?
![Page 20: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/20.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 21: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/21.jpg)
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“
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 22: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/22.jpg)
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.
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 23: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/23.jpg)
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?
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 24: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/24.jpg)
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
![Page 25: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/25.jpg)
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.
![Page 26: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/26.jpg)
Dr. J. Tanti-Dougall B.A.; LL.D. 26
Evans versus Kosmar Villa Holidays (November 2007)
![Page 27: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/27.jpg)
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
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 28: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/28.jpg)
Project Description
• Objective– Add your objective here
• Results– Add your results here
28
The Main Concepts of Law
Buon Pater-familiasDue
DiligenceTraining
![Page 29: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/29.jpg)
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.
![Page 30: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/30.jpg)
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
30Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 31: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/31.jpg)
31
Fire Escape Doors
Dr. J. Tanti-Dougall B.A.; LL.D.
![Page 32: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/32.jpg)
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
![Page 33: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/33.jpg)
The Fan
33Dr. J. Tanti Dougall LL.D.,
![Page 34: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/34.jpg)
34
DO NOT BE A TARGET FOR ACCIDENTS!
Only in Malta.comDr. J. Tanti-Dougall B.A.; LL.D.
![Page 35: A Review of Certain Liabilities in the Hotel Industry](https://reader036.fdocuments.us/reader036/viewer/2022062323/5681599c550346895dc6e728/html5/thumbnails/35.jpg)
35Dr. J. Tanti-Dougall B.A.; LL.D.
Thank You for Your Attention
Tanti-Dougall & Associates