Australia: New South Wales Supreme Court decides on jurisdiction in hotel liablility case

Michael Wukoschitz's picture

The plaintiff  was injured during a family holiday in Bangkok in June 2013. She was a guest at the Mandarin Oriental Hotel, and was participating in a Thai cookery class conducted by the Hotel when the floorboards on which she was standing gave way, causing her to injure her shoulder.

The defendant (hotel owner) sought an order to stay the proceedings on the ground that

  • the Supreme Court of New South Wales is an inappropriate forum for the trial of the claim, and
  • because a section of the Hotel’s ‘Guest Registration Form’ (GRF) which the plaintiff had signed upon checking into the Hotel nominated Thai law as the governing law and Thai courts as the exclusive forum for any disputes  arising in relation to the accommodation.

The plaintiff and her family had booked the holiday through a travel agent, who received an email confirming the family’s reservation from the Hotel. The Court found that in this reservation the parties had agreed to all the necessary terms of the contract, including the cost and dates of the booking. The Court therefore held that the contract was made at the time the reservation was made, not at the time of check-in. The Court also held that the GRF did not amount to a variation of the original contract or a collateral contract because there was no fresh consideration given for either position. As a result, the section of the GRF referring to Thai law and Thai courts was not a term of the contract.

With regard to the issue whether the Supreme Court of New South Wales was an inappropriate forum based on private international law principles, the court held that a trial in New South Wales would not be productive of injustice to the defendant, nor would it be seriously and unfairly burdensome, prejudicial or damaging to it:

Though there were people in Thailand  who might be required to appear,  this was easily done by audio visual link. Similarly, although the incident occurred in Thailand, it was likely that photographs of the site would be sufficient at trial, as is common with disputes arising out of accidents. While Thai law was the law governing the claim, no evidence was led that the Thai law of negligence differed from the law in New South Wales. Overall, it was insufficient to conclude that the Supreme Court of New South Wales was an inappropriate forum for
the trial of this dispute.

The defendant’s application for a stay of the proceedings was therefore dismissed.

Source: Judgment Summary of the Supreme Court of New South Wales of April 24, 2015

Case: Hargood v OHTL Public Company Ltd [2015] NSWSC 446

X