Malta Independent

Damages suffered by slipping in hotel premises

- Dr Karl Grech Orr Dr Karl Grech Orr is a Partner at GANADO Advocates

The First Hall Civil Court presided by Mr Justice Grazio Mercieca, in the case “Nigel Mallett vs Dolmen Complex Limited”, held among other things, that it was no defence for the hotel to claim that it had engaged competent persons and carried out all necessary supervisio­n.

The facts in this case were as follows:

Nigel Mallett attended a conference on the 14 November 2008 in his capacity as IT Manager, of the University of Malta in order to provide technical support to the conference which was organised by the Faculty of Education.

It so happened that while Nigel Mallett was walking down the stairs, he slipped on a puddle of water, which had seeped from the plants and injured himself gravely. He tumbled down the stairs, and suffered six per centum permanent disability.

Faced with this situation, he asked the Dolmen Complex Limited to compensate him for damages. He requested the First Hall, Civil Court:

(1) to declare that the incident of 14 November 2008 at the Dolmen Resort Hotel in St Paul’s Bay where he hurt himself, occurred owing to the fault, negligence and lack of care of the hotel, where the seminar was hosted;

(2) to declare the hotel to be responsibl­e for damages;

(3) to liquidate the damages and; (4) to condemn the hotel to pay the damages so liquidated.

The Dolmen Complex claimed in reply that it was not the legitimate defendant and should be freed from the proceeding­s. It said that the plants at the hotel were cared for by third parties, as subcontrac­tors.

The hotel disclaimed responsibi­lity for the damages. It said that it always engaged competent persons. The hotel alleged to have carried out supervisio­n as required by law, without prejudice to any of its claims.

It added that in any case, the grade of permanent disability purportedl­y suffered by Mallett was exaggerate­d.

The Court considered the testimony of a number of witnesses:

One witness, an employee of the University confirmed to the Court that she noticed that there was some water on the stairs which could prove to be dangerous. In fact she had reported this to the reception desk, for them to take immediate action and send cleaners to mop up the excess seepage. With water on the stairs, the granite

had become very slippery and a hazard to visitors at the hotel. Nor was there any sign to warn people that the ground was wet.

The Court accepted to rely on the testimony of this University employee.

It considered that at law, a hotel was obliged to provide a safe place, in considerat­ion for the price its customers paid for its use.

Reference was made to the case “Cassar Pullicino vs Xuereb”

“..In effetti l-lukandier jista’ jinstab hati ghad-dannu li jigi kkawzat minhabba l-htija tieghu min-nuqqas ta’ diligenza fl’ezercizzju tal-professjon­i tieghu...

“..Din il-pozizzjoni li tidher li hi adoperata wkoll fl-Italja tant li l-gurista Galgano, fil-trattat tieghu, Diritto Privato (para. 30.4 pg. 553) jghid, “Il-principio e’ quello secondo il quale l-imprendito­re che, per eseguire la propria prestazion­e, deve ospitare i clienti nel locali dell’impresa, e’ tenuto a predisporr­e una organizzaz­zione idonea a garantire l’integrita’ e la sicurezza, oltre che della persona del cliente, anche dei beni che egli porta con se...”

The legal responsibi­lity of a hotel was based on contract. Its customers requested a service from the hotel and the hotel was obliged to give the service in a proper way. In case of breach of duty, the hotel was liable for contractua­l damages.

The facts in the case Cassar Pullicino vs Xuereb were more-orless similar to this case. A resident of the hotel, who has acquired “time share” slipped next to the swimming pool and injured herself badly. The failure of the hotel was that the area around the pool was unsafe, for people using the area and it failed in its responsibi­lity to provide a safe environmen­t to its customers.

In this same case, Cassar Pullicino vs Xuereb, the Court stated that:

“...Fl-istess sentenza tal-ewwel Qorti ta Cassar Pullicino v Xuereb, intqal ukoll li “l-kontraditt­ur tal-azzjoni attrici ghandha tkun is-socjeta ta’ Kella Limited, illum maghrufa bhala Holiday Resort Limited, ghax hija din li taccetta t-turisti u tidhol f’relazzjoni magghom b’obbligu li taghtihom l-amenities u s-servizzi li jkunu ntitolati ghalihom. Il-fatt li dan ix-xoghol taghmlu tramite sub-contractor (Suncrest Limited) m’ghandux jinteressa lill-attrici li kkuntratta­t biss mas-socjeta Holiday Resort Limited. Ovvjament, is-socjeta Suncrest Limited, bhala sub-contractor trid twiegbeb ghall-eghmil taghha lil Holiday Resort Limited, u jekk din tal-ahhar, minhabba xi nuqqas tal-operatur, tinsab respnsabbl­i fil-konfront tal-attrici ghal-incident in kwistjoni, hi jkollha dritt ta’ regress kontra l-operatur, is-sub-contractor...”

In this light, the Court said that the hotel in this case was responsibl­e, and was the legitimate defendant, as it had a legal relationsh­ip with Mallett, irrespecti­ve if it sub-contracted.

Against the argument of the hotel that it always engaged competent persons and carried out supervisio­n as required, the Court said that the provision of article 1037 was not applicable in the context of contractua­l damages.

It said that the claimant always bore the burden of proof, whilst the defendant did not have to show that he was not liable. It was the person who filed legal action for damages who had to bring proof of the responsibi­lity of the defendant. Galgano writes:

“...Non vi sono dunque differenze tra la colpa contrattua­le e la aquiliana in rapport alla prova della colpa; la prova dei fatti generatori di diritto tocca sempre a chi li afferma, e tale prova puo talvolta nei contratti derivare dalla sola presentazi­one del contratto, ma tal altra, anche nei contratti, suppone la prova di altri fatti perche il debitore sia condannato...”

It was not sufficient just to exhibit the contract, in order to prove contractua­l damages. Other factors have to be shown to establish responsibi­lity.

The Court was satisfied with the evidence, that there were contractua­l relations between the parties as well as the non performanc­e by the hotel. The hotel did not manage to exonerate itself.

In its assessment of damages, the Court considered:The disability was assessed to be six per centum by the medical expert;

The multiplier was eight, in view that Mallett was 54 years old at the time of the incident;

No lump sum deduction was appropriat­e in the circumstan­ces, as over eleven years passed from the time of the incident.

This was in line with case-law mentioned the Court.

It therefore assessed the lucrum cessans by multiplyin­g € 23,251 by 8 and by 6 per centum, to arrive at € 11,160.48, the amount of compensati­on to be paid to Mallett.

For these reasons, on 28 March , 2019, the First Hall Civil Court gave judgment by accepting Mallett’s requests, and by rejecting the hotel’s pleas. It held Dolmen Complex Limited to be responsibl­e for the incident of 14 November 2008 owing to its fault, negligence and lack of care, as well as for the damages suffered by Nigel Mallett. It liquidated the damages to amount to € 11,160.48 and condemned the hotel to pay this sum with legal interests until the date of payment as well as the court expenses.

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