LAW REPORT on Macgregor(TM)s case

Title: LAW REPORT on Macgregor’s case

The Problem

Peter booked a room for a week at MacGregor's Hotel. At the reception desk, where he made the booking, was a notice in the form laid down by the hotel Proprietors Act 1956 limiting the hotel's liability for loss of, or damage to guest's property.

Peter asked the receptionist to look after his expensive Olympus camera but she refused saying that there was no room in the hotel safe. On the second night of his stay he invited his friend Beatrice to dinner in the hotel's restaurant. At dinner, without consulting Beatrice, Peter ordered Helford oysters for both of them.

The oysters that were served to them in fact came from Whitstable and several of them were bad. Later in the meal Beatrice, already beginning to feel the effects of the oysters, left table in search of a lavatory. On her way there, suddenly overcome by dizziness, she tripped on a piece of torn stair carpet and fell heavily, breaking her arm. The meal was abandoned and Peter returned to his room hungry and bad tempered only to discover that his Olympus camera had been stolen.

Being the defence advice MacGregor about his legal liabilities.

Introduction

This brief advises MacGregor as to the legal liabilities he faces as a consequence of the incidents as detailed above. It is advised that if this matter proceeds to court, which is likely, then Beatrice's personal injury case may be heard either at the County Court, probably under the Fast Track (personal injury claim value £1000-£15,000) or Multi Track procedure (claim value £15,000-£50000), or at the High Court of Justice (although this is unlikely given that the claimant must reasonably expect to recover £50,000 or more), subject to the perceived gravity and complexity of the case and the amounts claimed therein. Peter's claim for the theft of his camera would be dealt with by the County Court under the small claims procedure, on the fairly safe assumption that his loss is valued at less than £5000.

Peter's stolen camera

MacGregor may seek to rely on the notice displayed at the hotel reception desk which limits the hotel's liability for loss of, or damage to guest's property in relation to the theft of Peter's Olympus camera. Generally speaking, in order to argue that a notice is effective, a defendant must prove:

1. That the exclusion clause is properly incorporated into the contract between the hotel and Peter;

2. That the exclusion clause adequately covers the breach in question; and

3. That the Unfair Contract Terms Act 1977 does not restrict the exclusion of liability.

In the case Olley v Marlborough Court Ltd (1949)1, an exclusion notice in a hotel was not displayed until the hotel room itself and on these grounds the terms on the notice were excluded from the contract because the contract was deemed to have been formed at the reception desk. Given this authority it may be that the exclusion clause at the front desk of MacGregor's hotel is found to have been incorporated into the contract because it was displayed at the point of contract formation. Further information is requested as to the clarity and prominence of the notice. If the notice is relatively clear and prominently displayed, and/or if effort was made to draw Peter's attention to the notice prior to contract formation, then there is prima facie a possibility that the exclusion clause may operate to defend MacGregor's Hotel against Peter's claim for the loss of the camera.

However, Section 2 of the Hotel Proprietors Act 1956 provides:

“Where the proprietor of an hotel is liable as an innkeeper to make good the loss of or any damage to property brought to the hotel, his liability to any one guest shall not exceed fifty pounds in respect of any one article, or one hundred pounds in the aggregate, except where -

(c) at a time after the guest had arrived at the hotel, either the property in question was offered for deposit as aforesaid and the proprietor or his servant refused to receive it, or the guest ...

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However, Section 2 of the Hotel Proprietors Act 1956 provides:

(c) at a time after the guest had arrived at the hotel, either the property in question was offered for deposit as aforesaid and the proprietor or his servant refused to receive it, or the guest or some other guest acting on his behalf wished so to offer the property in question but, through the default of the proprietor or a servant of his, was unable to do so.”

(emphasis added)

It is noted that Peter had requested that his camera be looked after by the hotel, and that the hotel receptionist refused, saying that the hotel safe was full. Therefore, it would appear that section 2(3) of the HPA 1956 will apply to cancel the protection and limitation of liability afforded as standard under the HPA. MacGregor's may thus be liable for the full amount of the loss of the Olympus camera.

Beatrice's injuries

MacGregor's Hotel should be advised that Beatrice is not a customer or guest at the hotel in contractual terms. However, the authority of Donoghue v Stephenson (1932)2 makes it abundantly clear that the hotel will be deemed to owe a duty of care in negligence to Beatrice. The applicable duty of care was defined as follows:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question."

The question as to whether MacGregor's is in breach of its duty will be informed by authority such as Blyth v Birmingham Waterworks (1856)3 where it was held:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

It is noted that bad oysters were served to Beatrice (by way of an aside it is also clear that the oysters were misrepresented as Helford oysters and this may amount to a breach of Peter's contract for the dinner - assuming he was paying for the meal). It is advised that, prima facie, serving bad oysters to Beatrice will constitute a breach of the hotel's duty of care, given that a reasonable man would have taken all proper steps to ensure that any food served was safe for consumption.

It is submitted that Beatrice manifestly suffers damage as a result of MacGregor's breach of duty, and that the conditions of causation (Barnett v Chelsea and Kensington Hospital Management Committee (1969)4) and reasonable foresee ability (The Wagon Mound No.1 (1967)5) are not likely to frustrate Beatrice's case.

Given her condition and the situation, it is advised that no defence of volenti non fit injuria (Titchener v British Railways Board (1984)6) and no plea in mitigation of contributory negligence (Sayers v Harlow Urban District Council (1958)7) would be successful in relation to the fact that Beatrice left the room in a dizzy condition.

McGregor hotel took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence.

According to Food and Safety act 1990 section 21 subsection 3A, states that:

‘The ommission of the offence was due to an act or default of another person who was not under his control or to reliance on information supplied by such a person’

Regarding to that I will give an example of case Tesco Supermarkets v Nattrass 1972.

To prove that MacGregor hotel is not responsible for the wrong description of the oysters.

Tesco Supermarkets v Nattrass 1972. Where Tesco relied upon the defence of the ‘act or omission of another person’. Tesco had a special offer on washing powder, with a poster relating to the offer displayed in the store. They ran out of the specially marked low price packets but failed to remove the poster when higher priced stock was put on the shelves and someone was overcharged.
Tesco is a big company all over the UK with thousands of employees. The have managers responsible for different stores. The store manager should check the pricing and on this occasion he failed to follow their instructions.

As we know McGregor is a big hotel chain all over the UK with about 1500 employees. They give charge of different responsibilities to their managers. It’s manager’s duty to check the stock every day. Obviously the manager did not check the right stock at this particular day and that is the reason this incident happened.

The torn carpet on which Beatrice tripped is also likely to be the subject of an allegation of negligence and subject to the receipt of further information about the state of the carpet and the reason for its condition it is advised that the hotel will be found liable on the basis of the matrix of authority laid out above. The hotel may also be liable under the Occupiers' Liability Act 1957, given that Beatrice is an invited visitor who has sustained injury due to the dangerous condition of the premises.

Summary

No substantial defences to these actions appear to be available, given the facts as they stand, thus the Hotel and its insurer would be best advised to settle the matter out of court to avoid the management time, expense and negative publicity that would be entailed in litigation.

Peter vs MacGregor

On the matter of Peter’s stolen Olympus camera I’m relying on the provision provided under the Hotel Proprietors Act 1956, which states that a hotel proprietor is bounded to keep guest’s goods safely unless they are lost by the fault of the guest himself.

Section 2, subsection 3 & 4 of the Hotel proprietors Act 1956, indicates that:

“Where the proprietor of hotel is liable as innkeeper to make good the loss of or damage to property brought to the hotel, his liability to any one guest shall not exceed 50 pounds in respect of any one article, on one hundred pounds in the aggregate. At a time after the guest had arrived at the hotel, either the property in question was offered for deposit of his servant refused to receive it, or the guess or some other guest acting on his behalf wished so to offer the property in question but, through the default of the proprietor or a servant of his, was unable to do so.”

Peter asked the receptionist to look after his camera but she refused saying that there was no room in the hotel safe. It was held under the Hotel Proprietors Act 1956 that a hotel proprietor may in certain circumstances be liable for the theft or damage caused to a good even though it was not due to any fault of the proprietors or staff of the hotel. Macgregor, being liable for the loss, must compensates the full amount of the Olympus camera

Another point was the poor service Peter received during the stay. To refer back to the case, Peter had ordered the Helford oysters and then later went on to find out that several of them were bad. As a result, this has caused his friend, Beatrice, to become seriously ill. The hotel is in a contract with its customer in an effort to provide a service of a good standard. This is enforced by the Supply of Goods and Service Act 1982, section 13, which indicates:

“In a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.”

MacGregor is breaking the contract as he failed to check that the oysters were not in good condition before serving to the defendants. The Sale and Supply of Goods Act 1979, section 13 and 14, which states:

“Where there is a contract for the sale of goods by description, there is an implied condition that the goods will correspond with the description. Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality.”

Considering all the matters evoked during the proceeding, it was claimed a total of £1475 on behalf of Peter, which could be broken down into:

Compensation for faulty goods: £150

The loss of the Olympus camera: £750

Refund for 7 nights accommodation due to poor service £575

Beatrice v MacGregor

Beatrice has filed a complaint against the MacGregor. She has been invited by her friend Peter to have a dinner at the MacGregor Hotel, where she suffered personal injury and a food poisoning as a result of hotel occupier's failure to comply with Occupiers Liability Act 1957.

The reason why Beatrice has broken her arm is the lack of responsibility of the hotel occupiers. It was the duty of the MacGregor to maintain the hotel premises in such a way that the visitors can use it safely. The unfixed torn stair carpet shows MacGregor's carelessness.

Beatrice is suing MacGregor for failing to comply with the Occupiers' Liability Act 1957 section 2, subsection 2, which states that

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there.”

The occupiers of the hotel have the physical control over the premises and they are potentially liable for the injuries caused to Beatrice. It is absolutely clear that everyone should take care for their own safety. Therefore, in this case Beatrice can not be blamed for carelessness because the food she had from the hotel caused her dizziness on her way to lavatory.

This Act makes it clear that even though Beatrice did not make the contract with the MacGregor's restaurant, the contract was made for her benefit too.

The Consumer Protection Act 1987 section 7 states that the liability of a person by virtue of this part to a person who has suffered damages caused wholly or partly by a defect in a product.

Now, we can support our case with one old similar case like Donoghue v Stevenson 1993. In this case a person bought a bottle of ginger beer from the retailer and passed it on the defendant, Ms Donoghue, who drank it and became seriously ill only to find out later that the bottle contained a partially decomposed snail. The defendant went on to pursue a legal action against the manufacturer of the ginger beer. Her claim was successful on the basis that a manufacturer owes a duty of care to all those who might be expected to consume their products.

Beatrice is a secretary with income of £25,000 per year. The reason why she is unable to work is the negligence of the hotel occupiers. Her medical report states that she will not be able to work for the next 3 months. The total expenses she will be suffering and its interest is £6500. Additional expenses such as cost of travel to receive medical treatment, cost of medication etc. will come extra.

Considering the above facts Beatrice should receive the maximum compensation from the MacGregor Hotel.

BIBLIOGRAPHY

Cases as footnoted to standard citation

Cooke J., Law of Tort, (2007) Longman

Hotel Proprietors Act 1956

Kidner R, Casebook on Torts, (2006) Oxford University Press

MacIntyre E., Essentials of Business Law, (2007) Longman

Unfair Contract Terms Act 1977

Teacher Reviews

Here's what a teacher thought of this essay

Edward Smith

18th of Jul 2013

A good essay, written very well and quite comprehensively. Focus is duly given to core issues such as exclusion of contractual terms and occupiers' liability. 4 Stars.

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