The Dekagram: 15th April 2024

Two interesting legal developments caught our eye this week: the first relates to the extent of the duty in swimming pool drowning cases, and the second to claims infected by fundamental dishonesty. James Byrne has written about the latter here – When is it substantially unjust to deny a dishonest Claimant their damages?; Sarah Prager writes about the former below. We also attended the valedictory for Master McCloud, organised by Sarah Crowther KC and attended by le tout PI Bar, which pulled off the feat of being both sad and uplifting. We wish the judge well in her future career at Gatehouse Chambers and in ADR.

Qi v Sunway Putra Hotel Limited W-04(NCvC)(W)-330-07/2022

The Malaysian Court of Appeal has recently handed down judgment in a tragic case arising out of a hotel drowning accident. The Malaysian courts’ approach to the claim is interesting and, to an English lawyer, somewhat surprising.

The facts

The facts of the case will be all too familiar to practitioners. Qi Xiangqing, a 22 year old Chinese man, drowned in the swimming pool of the five star Sunway Putra hotel in Kuala Lumpur. His parents sued the hotel, alleging that it was negligent in that it:

1. failed to provide a lifeguard; and,
2. failed to monitor the CCTV livestream from the pool.

The hotel countered that:

1. a signboard at the entrance to the pool informed guests that there was no lifeguard and that the pool was used at the guest’s own risk;
2. there were depth markings at intervals around the pool;
3. safety float lines divided the pool at its various depths.

At first instance and on first appeal the claim failed. The court found that because the Malaysian courts could not accept Chinese documents, the claimants had failed to prove that they were the parents of Mr Qi at all, depriving them of standing to bring the claim. Furthermore, even if they had proven that they were his dependents, they would not have been able to show that the hotel was negligent; and even if it had been negligent, it could rely on the defence of volenti non fit injuria to defeat the claim.

The claimants appealed to the Court of Appeal, which allowed their appeal.

The second appeal

The Court of Appeal had no difficulty in finding that the claimants had standing to bring the claim. First, the defendant had not taken the issue in its Defence to the claim. Secondly, it was estopped from denying that the claimants were Mr Qi’s parents. Thirdly, the claimants had in fact adduced original Chinese documents showing that they were indeed his parents, and although the trial was conducted remotely, the court had admitted them virtually and in the presence (in China) of the defendant’s representative.

The Court went on to find that the hotel had been negligent for the following reasons:

1. the pool was three metres deep at its deepest part;
2. the hotel carried a five star rating;
3. therefore the hotel ought to have provided a lifeguard on duty when the pool was open;
4. as well as that, a hotel employee ought to have been monitoring the CCTV at the time of the incident – ‘if otherwise, why would the defendant install the CCTV in the first place’ (cynical British readers may be able to think of any number of reasons, including the prevention of guests getting up to what the author’s mother would describe as All Sorts in the pool area).

There was no evidence that Mr Qi understood English so as to be able to read the warning signboard – although in the view of the author the board would have told him nothing he could not see for himself. It must have been clear to him when he entered the pool that there was no lifeguard present. Notwithstanding this, and his choice to use the pool nevertheless, the Court found that the defence of volenti non fit injuria was not made out. In doing so it relied on the decision of Denning LJ in Slater v Clay Cross Co Limited [1956] 2 QB 264 to the effect that a person does not voluntarily assume the risks associated with the negligent performance of another’s duties, but only the risks associated with the proper performance of those duties. Where, as here, the claimant shows that the defendant has been negligent, the doctrine is of no application, therefore, unless the claimant expressly accepts the risk posed by the defendant’s negligence. On no view had Mr Qi agreed to bear the risk that the hotel’s provision of the pool facilities would be negligent.

Notably, when the claimants travelled from China to collect their son’s body for repatriation, the hotel manager had dinner with them. During the course of the meal he offered, on behalf of the hotel, to compensate them for their son’s death on condition that they did not publicise the incident to the press or on social media. The court regarded this as an admission of negligence and drew an adverse inference from the fact that the manager was not called at trial and the defendant provided no explanation for this omission.

The defendant did not challenge causation, although given the speed and silence with which it is possible to drown, this may have been a miscalculation on its part.

Comment

According to the Royal Lifesaving Society, around 300 British and Irish people drown every year, of whom 73% drown in the absence of professional supervision – still leaving a fairly hefty 27% drowning in the presence of a lifeguard or similar professional.

Notwithstanding these figures it is extremely rare for drowning cases to succeed at trial, whether or not a lifeguard was present at the time of the incident. In the author’s experience the English courts would be unlikely to find an enhanced duty owed by a hotel due to its star rating; judges tend to consider that safety features and supervision should be consistent to all hotels, lest those guests able to afford a more expensive hotel are, as a result, safer than less affluent guests. It would also be highly unusual (though not unheard of) for a hotel to be held liable by reason of failing to monitor CCTV, particularly in a drowning case, in which the supervisor might quite easily miss the signs of drowning and would have to alert rescuers within moments to avert a death (albeit in Qi causation was not in issue). The author’s experience also suggests that the manager’s hamfisted attempt to limit the publicity arising from the incident would not be regarded by our domestic courts as any kind of admission of negligence or liability on the part of the hotel, but rather a commercial tactic, albeit a tasteless one.

It is interesting to note these differences in approach and to ponder why the courts of different jurisdictions decide as they do. In this case the policy underpinning the decision of the Court of Appeal may have been a desire to compensate the blameless parents of the unfortunate Mr Qi for an incident which occurred whilst he was staying at a luxury hotel whose preoccupation appears to have been a desire to limit bad publicity. The lower courts of England and Wales might have been swayed by such considerations, but there is a string of cases in which on appeal the higher courts have overturned decisions similarly sympathetic to claimants; in the Qi case, of course the position was reversed.

Perhaps it all goes to show what litigators already know to be true – you never can predict what judges are going to do. Worth bearing in mind when considering whether to settle or to run cases to trial.

Many thanks to our friends at Tay & Partners, Cheah Soo Chuan and Erin Lim, for bringing this interesting case to our attention.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.