Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 MarsdenLR 487

HIGH COURT MALAYA KUALA LUMPUR
WANG CUILIN – Appellant
Versus
NURUL SUHAIDA DAHLAN & ORS – Respondent
[Civil Suit No: WA-23NCyC-1-01/2021]

Petitioner Advocates:Renuka Devi Krishnasamy,Tneu Wan Jing ,Respondent Advocate: S Nirmala,Gunaseelan

Hotel operators owe a duty of care to ensure the safety of their guests, and negligence can be established through unauthorized access leading to harm.

Headnote:(A) Evidence Act 1950 – Sections 101 and 103 – Civil Law Act 1956 – Sections 7 and 8 – Negligence claim against hotel defendants for the murder of a guest due to failure to ensure safety – Duty of care established for hotel operators to protect guests – Plaintiff proved negligence based on the first defendant's actions allowing unauthorized access to deceased's room. (Paras 16-18, 32-34, 58-59)

(B) Burden of proof in negligence – Plaintiff must prove negligence on the balance of probabilities – Defendants failed to demonstrate that the first defendant did not grant access to the deceased's room. (Paras 20-22, 26-30)

(C) Damages – General damages awarded for pain and suffering of the deceased and the widow – Special damages claims partially allowed based on evidence presented. (Paras 60-79)

Facts of the case: The deceased, a hotel guest, was murdered in his room after unauthorized access was granted by hotel staff. The plaintiff, as the deceased's widow, sued the hotel and its employees for negligence. (Paras 1-4, 5-10)

Findings of Court: The court found the hotel and its employees liable for negligence due to failure to ensure the deceased's safety, resulting in his murder. (Paras 58-59)

Issues: Whether the defendants owed a duty of care, whether they were negligent, and whether the plaintiff is entitled to damages. (Paras 16-17)

Ratio Decidendi: The court held that the hotel had a duty of care to ensure guest safety and that the first defendant's actions constituted a breach of that duty, leading to the deceased's murder. (Paras 32-34, 58-59)

Result: Plaintiff's claim allowed with costs awarded. (Para 80)

Judgement Key Points

Key Points: - Hotel guest Xie Ning was murdered in his room at the third defendant's hotel after housekeeping employee (first defendant) allowed unauthorized access using her key card (!) (!) (!) (!) (!) - Plaintiff, the widow and estate administrator, sued defendants for negligence (!) (!) - Court applied Caparo test and held hotel operators owe duty of care to ensure guest safety (!) (!) (!) - Plaintiff proved on balance of probabilities that first defendant breached duty by granting access to Kumar without verification, supported by cautioned statement, PW2 testimony, and defendants' witnesses (!) (!) (!) (!) (!) (!) - Second and third defendants vicariously liable for first defendant's negligence (!) (!) (!) - General damages awarded: RM200,000 for deceased's pain/suffering (!) (!) , RM500,000 for plaintiff's pain/suffering (!) , RM10,000 bereavement (!) - Special damages partially allowed (e.g., flights RM7,088.25, funeral RM18,800) but rejected claims like casino chips RM160,000 and loss of dependency due to insufficient proof (!) (!) (!) (!) (!) - No aggravated or exemplary damages as no malice proven (!) (!) - Plaintiff's claim allowed with costs of RM75,000 (!)

What is the duty of care owed by hotel operators to their guests? [p_22][p_32][p_33]

Whether the first defendant granted access to the deceased's room to the alleged perpetrators? [p_23]

Whether the defendants were negligent in the death of the deceased? [p_24]

JUDGMENT

Raja Ahmad Mohzanuddin Shah JC:

Preliminary

[1] The murder of a hotel guest has taken place. This occurred in the hotel room in which Xie Ning ("the deceased") was staying. Despite a few arrests, the perpetrators have not been charged.

[2] As a result, the widow of the deceased sued the third defendant, who owned and operated the hotel where the crime took place, with the first defendant being an employee of the hotel's housekeeping department who allowed strangers into the deceased's room and the second defendant being the owner of the third defendant.

[3] The plaintiff is also the administrator of the deceased's estate.

[4] All defendants are being sued for negligence.

An Overview Of The Facts Of The Case

[5] The deceased is a Chinese national. On 16 May 2019, he arrived in Malaysia and checked into the hotel of the third defendant ("hotel"). Following that, he informed the plaintiff that the room he had been given was Room 12743.

[6] During the deceased's stay in Malaysia, the plaintiff and the deceased communicated through the "WeChat" application. A series of conversations revealed that the deceased had visited the casino between 7 June 2019 and 11 June 2019, initially losing but later becoming a frequent winner.

[7] The deceased contacted the plaintiff by way of WeChat at approximately 10.38 am on 11 June 2019, informing her that he had won money while gambling. It turned out that this was their last conversation. Despite sending multiple messages to the deceased, he did not respond.

[8] in order to locate the deceased, the plaintiff contacted her friend, PW3, who was at Genting Highlands and had met the deceased in the casino on 11 June 2019. PW3 searched for the deceased on 13 June 2019 but was unable to locate him. As a result, the plaintiff asked PW3 to attempt to locate the deceased at the hotel.

[9] PW3 went to Room 12743 on 13 June 2019 and 14 June 2019, but no one opened the door. In an attempt to locate the deceased, PW3 further requested the assistance of the casino's auxiliary police but they were unsuccessful. As a result, PW3 approached hotel security to find the deceased.

[10] In response, the hotel security staff entered Room 12743 at 7.55 am on 14 June 2019. Upon entering the room, they discovered the deceased's naked body lying on the bathroom floor.

[11] In the course of the investigation, it was discovered that the deceased had been tied up at the lower face that covered the nose and mouth, at the elbows that covered the arms and body, at the wrists and hips, and at the knees and ankles. In order to tie the deceased, the perpetrators used white cloth, white towels, shoelaces, and a belt.

[12] There were also bruises and abrasions consistent with trauma caused by blunt objects found on the body of the deceased. A postmortem examination confirmed that the death was caused by suffocation.

[13] PW2 led the police investigation in which the case was classified as murder and robbery.

[14] Upon hearing of this incident, the plaintiff flew to Malaysia on 15 June 2019.

[15] The plaintiff was informed by the police that there were two foreign nationals suspected of causing the deceased's death. They were a Sri Lankan named Sarath Pushpakumara ("Kumar") and a Pakistani named Hussain Qadeer. It has been alleged that the suspects entered the deceased's room using the first defendant's key card to open the door. The deceased was away from his room at the time.

Issues To Be Tried

[16] There are thirteen common issues that the parties have raised for the court's consideration. On reviewing the closing submissions of the parties, I am able to safely rely on the following issues for determining the dispute at hand:

(a) Whether the first defendant, the second defendant and/or the third defendant owe the deceased a duty of care?
(b) Whether the first defendant granted access to the deceased's room to the alleged perpetrators, which resulted in the murder of the deceased?
(c) Whether the first defendant, the second defendant and/or the

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