UNIVERSITI TEKNOLOGI MARA KAMPUS BANDARAYA MELAKA

HOSPLITALITY AND TOURISM LAW

LAW 438

FINAL ASSESSMENT

PREPARED BY:
NUR ALIA RAIHANA BINTI NORSHAMSOLFAMY (2022736137)

CLASS:
HM241 3C

LECTURER NAME:
IDA RAHAYU MAHAT

DATE OF SUBMISSION:
1ST AUGUST 2022
QUESTION 1

The issue in this case is whether there is a contract between Zain Hotel and Cik Ita. The
applicable principle to solve the problem is under the law of agency with the respect to
the creation of agency by ratification.

It can be claimed here that Cik Ita was appointed expressly by Zain Hotel to be his
agent because from the facts, Zain Hotel instructed Cik Ita to find them a van at the price
of RM100,000. However, when Cik Ita bought him a secondhand van at RM160,000, it
can be said that Zain Hotel would not be liable to perform his contractual obligation (s.149
od the Contracts Act 1950) because according to the law of agency, a principal (Zain
Hotel) will only be liable in a contract made by his agent (Cik ita) if the agent acts within
his authority (s.140).

This means, prima facie, when Cik Ita bought the secondhand van from Esah Motor Sdn.
Bhd at a prize more than what was authorized by Zain Hotel, i.e., RM100,000, her action
is said to be in excess of the express authority given by Zain Hotel and Zain Hotel would
not be liable for the contract (s.146). This had explicitly been explained in the case of
Turpin v Bilton (1843) 5 Man & G 455 where the court decided that the agent’s action
in not complying with the principal’s order to ensure the latter’s ship was a breach of his
duty to follow instructions from the principal and the agent had to be personally liable for
the loss suffered by the principal. As a distinction, the court in Cohen v Kittel (1889) 22
Q.B.D. 680 held that the agent was not liable when he failed to follow his principal’s
instruction to place bets since gambling was considered to be against the law. Applying
the principles of these cases to the problem, it is argued that Zain Hotel cannot be held
responsible for Cik Ita’s decision in buying the van in excess of the price authorized by
Zain Hotel.

Nevertheless, the principle of ratification can be applied here because when Zain Hotel
had agreed to buy the van as agreed between Cik Ita and Esah Motor Sdn. Bhd, he said
to have ratified the act of Cik Ita which can be considered to be in excess of his authority.
Ratification occurs when a principal adopts the benefits and liabilities of a contract made
on his behalf. From the words of Tindal C.J. in Wilson v Tumman (1843), 6 M. & G.
236, “… that an act, done for another, by a person not assuming to act for himself, but for
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such other person, though without any precedent authority whatever, becomes the act of
the principal, if subsequently ratified by him, id the known and well-established rule of
law. In that case the principal is bound by the act whether it be for his detriment or his
advantage, and whether it be founded on a tort or a contract…” Hence, if ratification
occurs in this case, Zain Hotel would be liable for the contract made by Cik Ita as if Cik
Ita had the authority to buy the van at RM160,000 from the outset.

Among the cases which can be referred to illustrate this principle of ratification is the case
of Bolton and Partners Ltd. V Lambert (1888) 41 Ch.D. 295. In this case, a managing
director of a company, purporting to act as an agent to a company, but without its
authority, accepted an offer by the defendant for the purchase of some goods belonging
to them. The defendant then withdrew his offer, but the company ratified the manager’s
acceptance. It was held that the defendant was bound. The ratification related back to the
time of the agent’s acceptance and so prevented the defendant from subsequent
revocation.

The facts of the question also show that Cik Ita had already told Esah Motor Sn. Bhd that
the purchase was for his principal, Zain Hotel. This means that one of the conditions for
a valid ratification is in existence i.e., the agent must make known to the third party that
he is acting on behalf of the principal. The case to explain this principle is the case of
Keighley Maxted v Durrant (1901) A.C. 240 where the court decided that the purchase
of wheat by the agent was outside his authority and could not be ratified by the principal
because the agent had bought the wheat using his own name causing the third party to
believe the wheat was for the agent himself.

In conclusion, Esah Motor Sdn. Bhd can claim against Zain Hotel because the ratification
made by her was valid. Hence, Zain Hotel must be liable for the contract made by his
agent, Cik Ita. It is as if the agent had the authority from the beginning to contract. This is
because every principal is liable for any action of the agent who acts within his/her
authority.

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QUESTION 3

The issues of this case are:

1. Whether Gelora Hotel owed a duty of care towards Miss Cinta.

2. Whether Gelora Hotel has breached its duty of care.
3. Whether Gelora Hotel’s action were the cause for Miss Cinta’s injury

According to the question, the principle that can be used is the law of negligence.
It is to determine the three elements that can fulfill the act of negligence of someone to
another person. As stated by Winfield & Jolowitz, negligence is one of a breach under
the law of tort where liability arises from a breach of duty fixed by the law by one person
to another generally as well as the breach is redressable by an action for unliquidated
damages.

First of all, to prove whether Gelora Hotel owed a duty of care towards Miss Cinta is by
applying the neighbourhood principle. We need to establish who is our neighbour and
they are “…persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my
mind to the acts or omissions that are called in questions.” which was mentioned by the
judge in the case of Donoghue v Stevenson.

In this case, when Miss Cinta attended a fashion show organized by Gelora Hotel that
can be refer under this principle. This is because Miss Cinta is considered as a person
who are being taken by the Gelora Hotel as a participant. That is to say, the hotel’s action
and omission will directly be affected Miss Cinta as they can predict their participants can
get injured due to their negligence. Hence, Gelora Hotel owed a duty of care to Miss Cinta
as she is the “neighbour” regarding the neighbourhood principle.

To support the above argument is the case of Donoghue v Stevenson. Donoghue sued
a manufacturer under a certain Stevenson in Scotland when she discovered the remains
of an allegedly decomposed snail while drinking ginger beer that was given to her by a
friend. Even if there was no relationship, the manufacturer owed her a duty of care since
there was contained noxious matter in the drink. The defendant, Andrew smith can also

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foresee that someone else other than the purchaser could drink the beer. So, the plaintiff
won in this case.

Next, the reasonable man’s test is applicable to determine whether Gelora Hotel
has breached the duty of care after establishing it. A reasonable man is an ordinary man
who is not expected to have any particular skill such as possessed by a surgeon, a lawyer,
or a plumber unless he is one, but he is expected to guard against reasonable
responsibilities. The person’s injury will not occur if the reasonable man did not do or had
not omitted to do the thing regarded in the question. In other words, we need to decide if
Gelora Hotel action or omission caused the small hole underneath the carpet on the
stage. Several factors can dictate Gelora Hotel’s act or omission was reasonable or not
such as the magnitude of the risk, the seriousness of the injury, practicability or cost of
precautions to the defendant, and general and approved practice.

According to this case, it can be argued that the omission of not providing any signage of
its discovery of small hole underneath the carpet on the stage would be what a
reasonable would not do. This is because the careless action made by the hotel might
affect the participant’s safety as the possibility of Miss Cinta suffering from fell down was
high. Thus, the staff of Gelora Hotel has breached the duty of care as the staff failed in
taking precautions in ensuring the safety of guests from falling by setting the carpet
properly or double-checking the condition of the stage itself.

The above argument can be supported by the case of Johnstone v Bloomsbury

Hospital Management where D instructed P to work 40 hours per week on average. P
claimed however that the patient’s safety was at risk as he suffered from sleep deprivation
and his health was damaged. So, D was liable for breach of duty. In addition, in the case
of Latimer v E.A.C show D’s factory floor was very slippery due to heavy rain. P claimed
against D after he injured himself after he fell even after D was covered with sand and
dust. Thus, D was not liable as he took reasonable and necessary steps to avoid injury.

Lastly, it must be proven that the injury suffered by Miss Cinta was the direct cause
of Gelora Hotel’s breach of duty. A link must be established between the injury or damage
suffered by Miss Cinta with Gelora Hotel’s breach of duty. The principle that can be used

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for this case is reasonable foresight test to determine whether the hotel’s action was the
cause of Miss Cinta's injuries since the damage must also be foreseeable.

In this case, Miss Cinta suffered from fractured thigh bone. Also, Miss Cinta had to rest
for one year and could not take any catwalk shows or jobs anymore can be the direct
consequences of the fall. She would not be admitted to the hospital for one month after
the surgery if the hotel’s staff took all reasonable and necessary precautions to avoid the
situation. Anyone who fell while wearing ahigh heels will suffer the same as Miss Cinta or
even worse. Other than that, the doctor’s confirmation about the injuries due to the fall
concluded that the damage suffered by her was the direct cause of Gelora Hotel breach
of duty of reasonable resort.

A case to support is Wagon Mound where D chartered a ship that was anchored for
refueling and the oil spilled onto the water and spread to P’s wharf. The expert advised
on the contrary and the work continued when P asked whether they should stop or not. It
shows that it was not foreseeable that D’s breach of duty would cause a fire which led to
P’s wharf being extensively damaged.

Furthermore, the concept of vicarious liability can be used in this case. Vicarious
liability is the legal concept that allows for one party to be held liable for injuries or
damages sustained by another party, despite having had no active involvement in the
incident. Therefore, Gelora Hotel can be held vicariously liable for the injury that was
suffered by Miss Cinta. The reason for this is that it was Miss Cinta's responsibility since
Miss Cinta participating in their fashion show. The case of Hawley v Luminar Leisure
PLC can support the argument. The plaintiff suffered permanent head damage after being
assaulted by a door supervisor. It was held the defendant was vicariously liable as it had
sufficient control over the said door supervisor.

In conclusion, Miss Cinta has the right to file a complaint suit against Gelora Hotel due to
the negligence that is performed by the hotel’s staff. All three elements are in existence
and thus Gelora Hotel shall be held liable in tort for Miss Cinta’s injuries.