Essay: Warning Sign Affect Injury Liability.

Legal Obligation of Ports Hotel

Discuss about the Warning Sign Affect Injury Liability.

A valid contract had been formed between Don and the Ports hotel. The offer and acceptance took place between them at the reception of the hotel. The consideration, under Section 3 of the contract law of Singapore, should be something that holds some value. In this situation the consideration is the rent of the hotel room. The Ports Hotel was therefore under a duty to take due care of the belongings of Don. A legal obligation was thus constituted between the parties (Woan,  Koh, & Ho, 2015). The strict liability principle if applied to the present case makes the hotel authorities liable for the loss which has been caused due to burglary on the premises of the hotel. There is no need to prove any fault under this principle of strict liability (Singapore Law, 2016). Don would have to prove that the valuables were lost from the premises of the hotel when he was out.

Infra Hospitium is one of the common law doctrines which seek to ensure that the hotel would be strictly liable in case of any loss to the guest’s property.  The meaning of the infra hospitium is that the property is kept under the care or charge of the person who is an innkeeper and then the liability of that person gets attached (Sherry, 1993, p.438).  However, the liability of the hotel was limited to a certain extent as a reasonable notice was given. These notices were posted in each and every room. The liability of the hotel was waived off thereby. The reasonability of the notice can thus be checked by the place where it has been posted. Thus, it should be a conspicuous place from where the person for whom the notice has been given can read it. In most of the State Laws, the liability of the owner is limited and therefore it cannot be held liable for any loss occurred. However, the hotel should have complied with the statutory requirements. In the case, Fleming John C v Sealion Hotels Ltd, [1987] SLR(R) 325, it was held that the liability of the hotel is strict under the common law. The proprietor of the hotel is a person who insures the property of the guests. Therefore in case of any mishap that takes place within the hospitium, the liability dwells upon the hotel itself (Singapore Law, 2016).

Responsibility of Ports Hotel for Physical injuries sustained by Don

In a case, McCutcheon v. Mc Bryan 1 W.L.R. 125 (1964), the notion of past dealings came into light. It was thus stated that if there were past dealings between the two parties and that these were very much consistent then the exemption clause would be applicable. Also what is required is that the oter party must be very well aware of it. Thus in the present case, the hotel can take the extension. The exclusion clauses which have been incorporated by the hotel would not entitle it to waive off its responsibility under the common law as held in a case with similar facts, Olley v Marlborough Court Ltd, [1949] 1 KB 532 (Poole, 2016, p.222).

The hotel cannot take any defenses as it has not met any statutory requirements of the law of Singapore.

The hotel being the occupier owed a duty of care to the person who entered in its premises. Negligence refers to when the duty to fulfill a particular obligation has not been performed or has been breached. The liability of the occupier under the law of Singapore has subsumed now to the law of negligence. Don had made a contention that the conduct of the hotel was grossly negligent. In a case , it was held that establishment of gross negligence depends on various factors(Singapore Law, 2016). The existence of the risk, the type of neglect etc. are various factors that play a pivotal role. Gross negligence should be more than a mere ordinary neglect. The Ports Hotel is not grossly negligent as the warning sign was posted at the window and Don ignored it willfully (Tikriti, 2016).

The claimant, Don is the guest of the hotel is a lawful visitor and therefore the hotel owes a duty of care to him. According to the tort law of Singapore, the test has been laid down for the purpose of determining whether a duty of care arises in a given situation. Under this test, firstly the relationship between the claimant and the defendant has to be determined so as to know if there exists a duty of care (Hussain, & Abdullah, 2013). Then, the nature of the damage is to be assessed. In yet another case, Caparo Industries v Dickman, [1990] UKHL 2 the principle of duty of care was elaborated. Where a relationship is characterized between the one who owes a duty to the other to whom the obligation is owed then this gives rise to neighborhood. That is how the characterization of the proximate relationship takes place between the two parties. The elements of fairness and reasonableness have to be present in order to create a valid and a legal relationship between the two. Through this case, the duty of care has been very well established but Don could have avoided the situation (Acca Global, 2015).

Liability Assessment for Don’s Investment Loss

 In the present case, the hotel owed a duty of care towards Don, however, the hotel was not responsible as the warning sign had been posted at the window. Also the masking tape was placed to ensure that the damage on the window is visible. Therefore, the hotel took reasonable steps to warn people about the damaged window. The hotel would be entitled to the defenses of negligence on the part of Don. If the plaintiff who is seeking compensation is himself the wrongdoer then he would not be entitled to any damages. The equity principle comes into play in the present case. The principle says that the one who seeks equity must come with clean hands. That means the person who wants to get compensated by the other person must do equity. Therefore, it cannot claim the establishment of other’s fault, when the person is himself at fault (Justia, 2016). His negligence is directly related to the damage he has suffered. Thus, the amount of the damages that can be claimed would be reduced to a substantial level.

The most essential elements of a contract are offer and acceptance. An offer has to be placed by the offeror with an intention to be bound in case there is an acceptance by the offeree. However, there lies a vast difference between the offer and invitation to treat.  Where, the former is an indication given by a person to form a contract, the latter is just a provision of some information to lure the other to enter into a contract. Under section 2 of the Contract law of Singapore, the difference between them has been stated (Tan, 2012).The difference between the offer and invitation to treat has been well illustrated by the case Fisher v. Bell, (1961) 1 QB 394. In this case, a person who was the defendant had displayed a knife in his shop. A statute had made the rule that if anybody would offer such knife would be liable for a criminal offence. It was held by the court that the displaying of knife did not tan-amount to an offer. Rather, it was just an invitation of treat. (Blogspot, 2010).

Therefore, in the current situation, an invitation to treat has been made by Tom Toh & Co. The offer was thus made by Don, to invest, to which acceptance had been given by the company. Therefore, the liability of the company would be diminished. However, Tom Toh was under negligent misrepresentation. In the case, Horwad Marine and Dredging Co Ltd v A Ogden & Son (Excavations) Ltd, [1978] QB 574, in which it was held that when there is fraudulent misrepresentation takes place and it sounds into damages, then the burden of proof passes on to the representative with whom negligence took place and then he is liable to show that he was not negligent and had reasonable grounds to believe the misrepresentation. Therefore, Tom Toh in this case, had no reasonable grounds to believe the misrepresentation.

Regarding the liability of the auditors, the application of the law of torts has to be made. A number of recent cases have limited the exposure to the auditor’s liabilities. As in this case, Don is a third party and therefore the liability of the auditors would be limited to that extent. The auditors owe a duty of care to anyone who uses their accounts or perhaps relies on their reports.

The auditors were liable for the fraudulent misrepresentation. In the case Derry v. Peek, [1889] 58 LJ Ch 864, fraudulent misrepresentation was explained. It was stated that if anybody makes a false misrepresentation recklessly or knowingly or carelessly then he is said to commit a fraud. It does not matter whether the person knew about the truth or not.   

In yet another case, Panatron Pte Ltd v Lee Cheow Lee & Another ,[2001] 2 SLR(R) 43, the same as above was followed.  Thus in the present case, the auditors would be liable as they had recklessly prepared the reports. They did not care about the truth of the reports and had prepared these in haste.

References

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