Issues in Tourism Donoghue v Folkestone Properties Ltd

Question: Discuss about theIssues in Tourismfor Donoghue v Folkestone Properties Ltd. Answer: Introduction The issue of occupiers liability is one of the major concerns in tourism industry. According to the principle it is the duty of the person providing accommodation to the tourists to ensure their safety (Mosbah Saleh, 2014). Any negligence or ham caused to the tourist with respect to the place they have occupied can make the owner of that place liable for such negligence and harm. The report discusses the legal principles as provided in the case of Donoghue v Folkestone Properties Ltd[2003] EWCA Civ 231. This is a classic case where the court has identified when a person can be held responsible with respect to his property. Tourism in Malaysia is on the rise and cases in relation to occupiers liability will have a significant impact of the tourism industry (Movafegh Movafegh, 2013). The report discusses this English case as English common law is used in Malaysia as legal resolutions. Facts The plaintiff in this case was Mr. Donoghue who became tetraplegic after he broke his neck. The plaintiff was tourist and also an occupier of the defendants property. He decided to go for a swim in the middle of the night. He used the slipway to dive into the sea and in the process he hit his head on an invisible underwater obstruction making him break his neck. The plaintiff has made a claim against the defendant under the Occupiers Liability Act 1984 for the damage caused to him. The trial court in this case upheld the claim made by the plaintiff. The court in this case ruled that the defendant owned a duty of care towards the plaintiff as the plaintiff was the occupier of their property. The court in this case also applied the provisions of contributory negligence and only awarded the plaintiff with 25% of the total claim made by them. This was done by the court on the basis of its findings which proved that the plaintiff had made 75% of the contribution towards the harm caused to him. The defendant in this case was not satisfied with the judgment provided by the trial court and did not admit the ruling provided by the court that they owed a duty of care with respect to the plaintiff. The defendant in this case filed an appeal to the appellate court claiming that they did not have a duty of care towards the plaintiff. The defendants claimed that although they have a duty of care towards the person using the slip way to dive in the morning during summers it would not have been reasonable for them to assume that the person would dive into the sea using the slipway in the winters at midnight. Relevant Law The law which is involved in this case is Section 1 of the Occupiers liability Act 1984. The purpose of the act is to provide remedy to the occupiers who have been subjected to harm due to the negligence of the property owner (Sudbury Wilson, 2015). In order to access that there was a negligent act or not the court first analyzes the existence of a duty of care (Weissenberger McFarland, 2016). In case of occupiers liability the duty of care is determined by the court on the basis of the circumstances and condition along with the facts related to the plaintiff at the place where the harm was caused (Mulheron, 2016). Judgment The appellate court in this case considered the description with respect to the harbor in details in order to determine the duty of care. According to the Occupiers liability act the duty of care of a person is determined according to the circumstances in which the the accident had taken place (McAllister, 2015). The trial court in this aspect provided that as there were a number of cases which occurred during the summer with respect to diving. The defendant had employed security guards during the summer to prevent people from using the slip way to dive. However the defendant failed to put a clear notice at the site preventing then divers from diving. In this case the problem was that the plaintiff had jumped in the middle of the night during winter and the defendant had no idea and argued that they reasonable could not have an idea that a person would do such an act in the winter. The trial court in this case used Section 1(3) of the Occupiers Liability Act 1984 according to which a duty of care was adjudged according to the circumstances in which the accident took place (McAllister, 2015). The court ruled that as the defendants were aware of the fact that people indulge in diving at the spot they should have taken reasonable steps with respect to preventing them from doing so. The plaintiff in this case was a professional diver therefore the court held that he should have taken precaution and considered the tide while diving. Thus the court reduced the damages to be paid to him by 75% (Smith, 2014). The appellate court in this respect provided a decision against that of the trial court. The court in this case ruled held the appeal made by the appellants and ruled that a duty of care did not exist between them and the respondents. With respect to the slipway the appellate court ruled that there was negligence on the part if the appellant as they did not put any warning sign on the site with respect to diving. They had the idea that the harbor was such which might cause injury to any person who dives from there during low tide. With respect to the respondent the court agreed to the findings of the lower court that as he was a professional he should have reasonably considered the tide before deciding to make a dive. The respondent was himself negligent while making a dive without considering the dangers associated with it even after having significant knowledge in that field. The court thus did not challenge any finding by with respect to the facts done by the lower court. However the court changed the way in which the relevant laws had been applied to the existing facts. It was provided by the court that in order to accurately come to a decision in this case the provisions of section 1(3) of the Occupiers Liability Act 1984 have to be approached in a different way. According to the section in order to establish a duty of care owed by the defendant to the other person the characteristics and attributes of the other person in the circumstances where the injury was caused has to be considered. Thus the court considered that whether the respondent was subjected to danger or not due to the actions or omissions of the appellant based on the time of the day and the season of the year in which the accident took place. The court thus provided the decision in favor of the appellant stating that he did not owe a duty of care towards the respondent in this case. Relevance in Malaysian Tourism The tourism industry in Malaysia is growing at a rapid pace. The growth is inviting several legal issues which are being faced by the tourist as well as the locals. Malaysian law is primarily based on common law and English legal principles (Cheah Rahim, 2014). The most recent issues which the country have been subjected to are one that of a British tourist stripping on the mountain top. There issues in relation to tourist have to be solved as quickly as possible as they are not the residents of the country. There are several cases pending in the Malaysian trial courts in relation to issues with respect to tourism (Ooi, Hooy Som, 2013). It is a fact that when tourist comes to visit Malaysia they have to occupy the premises belonging to a local for the period of their stay. The laws in their country may be different from that of Malaysia and they might end up doing something which is unlawful. They might also end up injuring themselves as they would not be accustomed to the premises they are temporarily residing in. This may make the locals liable for the injury caused to tourist and they would have to pay the damages caused to them (Musa Thirumoorthi, 2016). Thus in this case the locals should be aware if their rights and responsibility towards their premises used by the tourist. They should ensure that they take reasonable step to prevent any kind of premises which may take place within their premises or by its use. The tourist on the other hand should also know that when a property owner cannot be held liable for the damages caused to them like it was in this case (Hassan, 2014). If the defendant had put a sign near the slipway warning the individuals about the risks involved in diving at that place the accident would not have taken place. On the other hand the tourist should have considered the tide while diving which he did not as a result he was not awarded the claim (Malaysia, 2012). References Cheah, C. F., Abdul-Rahim, A. S. (2014). Tourism, health and income in Malaysia. InSHS Web of Conferences(Vol. 12, p. 01039). EDP Sciences. https://www.shs-conferences.org/articles/shsconf/abs/2014/09/contents/contents.html Handford, P., McGivern, B. (2015). 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(2016).Balancing Development and Sustainability in Tourism Destinations: Proceedings of the Tourism Outlook Conference 2015. Springer. https://www.springer.com/in/book/9789811017162 Movafegh, A., Movafegh, A. (2013). The impact of service quality on tourist loyalty in Malaysian tourism industry.International Journal of Innovative Ideas,13(1), 1-19. www.mcser.org/journal/index.php/mjss/article/download/4725/4584 Mulheron, R. (2016).Principles of Tort Law. Cambridge University Press. https://www.cambridgeindia.org/ Musa, G., Thirumoorthi, T. (2016). Tourism in Malaysia.The Routledge Handbook of Tourism in Asia. https://scholar.google.co.in/citations?user=ItsKr7QAAAAJhl=en Ooi, C. A., Hooy, C. W., Som, A. P. M. (2013). Tourism crises and state level tourism demand in Malaysia.International Journal of Business and Society,14(3), 376. https://books.google.co.in/books?isbn=1482881071 Smith, S. L. (2014).Tourism analysis: A handbook. Routledge. https://www.amazon.com/Tourism-Analysis-Handbook-Stephen-Smith/dp/0582251605 Sudbury, P., Wilson, C. K. (2015). Law and legislation.Manual of Curatorship: A Guide to Museum Practice, 198. https://catalyst.library.jhu.edu/catalog/bib_2861668 Weissenberger, G., McFarland, B. (2016).The Law of Premises Liability. LexisNexis. https://store.lexisnexis.com/categories/area-of-practice/civil-procedure-154/the-law-of-premises-liability-skusku-us-ebook-04355-epub/details