Travel Reference
In-Depth Information
and invitees in hotels
N.C. Abdullah
Faculty of Law, Universiti Teknologi MARA, Shah Alam, Malaysia
ABSTRACT: In all jurisdictions, the standard of duty of care is the issue that arises as a result of injury
of any entrant in any hotels. In the complicated common law concept of duty of care adopted in many
Western jurisdictions, a guest in a hotel who pays to use the accommodation is classified as contractual
entrant; but he is an invitee when he uses common restaurant in the hotel. Hence, the common law con-
cept causes confusion and is often being criticized for its ambiguous nature. Ironically, many decided cases
in Malaysia, which is well-known for its strict adherence of common law; illustrates that the determin-
ing factor in deciding the liability of hotelier is whether the injury is a result of unusual danger which is
frequently associated with the concept of invitee attached to a paying guest, in the absence of discussion
on the distinction between invitees and contractual entrants. This paper discusses the complicated task
of the judiciary to determine the duty of care owed by hotelier as a result of the different classification
of entrants and the different standards of duty of care owed to these categories in the current context of
hospitality industry whereby hotels no longer only provide the traditional services of only food, beverages
and accommodation. This paper argues that though statutory provisions of duty of care is not available
in Malaysia, sometimes, the judiciary tends to apply the standard duty of care established in the case of
Donoughue v. Stevenson
, though at times, technical issues of classification of entrants and different stand-
ards of duty of care are mentioned in the judgments. The paper concludes that the exiting framework can
be better strengthened with the application of a standard duty of care which is applicable to all lawful
entrants to the hotel.
Keywords
:
hoteliers, duty of care, contractual entrant, invitees, unusual danger
1 INTRODUCTION
of which the entrant does not know. The feature of
a contractual entrant is that an entry is made law-
ful or permitted by the contract itself—and not, for
example, by virtue of conferring a business benefit
on the occupier (as in the case of an invitee) or by
virtue of the occupier's express or implied permis-
sion (as in the case of a licensee).
Under the common law, the standard of duty of
care differs from a contractual entrant, invitee and
licensee although these different groups of entrant,
contractual entrant, invitee and licensee are legal
entrants to the inn. The contractual entrants are
divided into two categories, i.e. main purpose
entrant and ancillary purpose entrant. As for the
main purpose entrant, an occupier has a duty to
ensure that the premise is safe for the purposes of
the contract as reasonable care and skill on the
part of anyone can make them. On the other hand,
for the ancillary purpose entrant, an occupier has a
duty to ensure that the premise is in all respect rea-
sonably safe for the purposes for which the other
party was invited to use them. Invitees are also
divided into two categories, i.e. the legally author-
ized entrants and business visitors. However, the
occupier owes the same duty of care to both these
two categories of invitees i.e. a duty to take reason-
able care to prevent damage from 'unusual danger',
of which the occupier knows or ought to know and
2 COMPLICATED CONTRACTUAL
DUTY AND DEBATABLE CONCEPT OF
'UNUSUAL DANGER'
The nature of the duty owed to contractual entrants
turns on the express of implied terms of the con-
tract. In the absence of an express term, an implied
term may vary depending on the type of contract.
Where there is no express term or well-settled stand-
ard for the type of contract in question, the term
that is usually implied is that the premises are as safe
as reasonable care on the part of anyone can make
them. It is now clear, despite some earlier suggestions
to the contrary, that an occupier is not normally
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