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Sunway Putra Hotel found negligent for guest’s drowning
KUALA LUMPUR, April 9, 2024: There was a landmark decision by the apex court that held doctors and hospitals liable for negligence in February.
No News Is Bad News reproduces below a news report on the drowning of a Chinese tourist in the 5-star Sunway Putra Hotel in Kuala Lumpur on Feb 14, 2017:
Now, hotels are also held liable for their guests drowning in their swimming pools.
5-star hotel held liable for drowning of Chinese tourist in pool
-09 Apr 2024, 10:40 AM
In their final appeal before the Court of Appeal, the parents were allowed about RM350,000 in damages, the bulk being for loss of support.
Tourist Qi Xiangqing, 22, stayed at the Sunway Putra Hotel in Kuala Lumpur and was found drowned on Feb 14, 2017. (Bernama pic)
PUTRAJAYA: The Court of Appeal has held a five-star hotel liable for the death of a Chinese national at its swimming pool seven years ago, in a negligence suit filed by the parents of the deceased.
Justice Wong Kian Kheong said the sessions court and High Court committed factual and legal errors in dismissing the suit and appeal, respectively by the mother, Qi Qiaoxian, and father, Wang Bin.
The couple’s child, Qi Xiangqing, a 22-year-old language teacher from China, entered Malaysia as a tourist and stayed at the Sunway Putra Hotel in Kuala Lumpur. Qi was found drowned on Feb 14, 2017.
A three-member bench chaired by Justices Supang Lian, Azimah Omar and Wong heard the appeal and delivered their oral decision in February.
Wong’s written grounds of judgment were posted on the judiciary’s website last week.
The bench ordered the defendant to pay the plaintiffs the quantum of damages as computed by the High Court judge, had he allowed the appeal.
Lawyer Loh Chang Woo, who represented the parents in the final appeal, said damages would be in the region of RM350,000.
This includes the couple’s travel expenses from China to Malaysia and funeral expenses, although the bulk of it is for loss of support.
The defendant was also ordered to pay the plaintiffs another RM25,000 in costs.
Lim Shin Yee and Norizul Naufal Dzulkarnain also represented the parents while Gan Khong Aik and Gwee Xi Wen appeared for the hotel.
Wong said the bench was of the view that the defendant had admitted to negligence as the defendant’s general manager, Michael Monks, had proposed a settlement.
About a week after the incident, the plaintiffs had dinner with the defendant’s top management, including Monks.
At the dinner, Monks offered to compensate the plaintiffs for the drowning of the deceased on condition that they did not disclose the incident to the press and on social media.
Wong said the plaintiffs had the legal standing to file the action, and that all documents from China were admissible as evidence despite objections by the defendant.
He added that the defendant could not be allowed to raise new issues which were pleaded in their initial defence.
“The sessions court and High Court judges committed an error of law in failing to consider that the defendant was bound by the defence and agreed to the issues to be tried,” he said.
Wong also said there was no dispute that the plaintiffs were the parents of the deceased as they had flown from China to Malaysia to claim the body.
“If the plaintiffs were not the parents of the deceased, the defendant’s top management, including Monks, would not have invited the plaintiffs for dinner to discuss the incident,” he said.
He added that stopping the plaintiffs from also bringing a dependency suit was a denial of access to justice, a right guaranteed under Article 5 of the Federal Constitution.
Wong said the defendant was liable for negligence as the plaintiff had proved the case on the balance of probabilities.
He said the defendant breached its duty of care by voluntarily assuming responsibility, as it made the three-metre deep pool available to the deceased as a hotel guest.
“Any reasonable operator of a ‘five-star’ hotel should have ensured that a certified lifeguard was on duty when the three-metre pool was open to the hotel’s guests.”
At the time of the incident, he said, an employee of the defendant should also have been monitoring the CCTV which was already installed at the pool.
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