Sunway Putra Hotel Drowning Case: Estopped by Proposing a Settlement?
Earlier this month, we learned of the Court of Appeal’s decision in a lawsuit brought by the purported parents and dependents of a 22 year old Chinese national who drowned in Sunway Putra Hotel’s pool.
The Plaintiffs (being the purported parents of the Deceased) then filed an action in the Sessions Court against Sunway Putra Hotel Sdn Bhd seeking damages based on the torts of negligence and occupier’s liability.
However, both the Sessions Court and the High Court dismissed their claim, ruling that the Plaintiffs were unable to prove they were indeed the parents of the Deceased, due to a technicality whereby documents issued by the government of the People’s Republic of China showing their relationship to the Deceased were rejected because of non-compliance with Section 78(1)(f) of the Evidence Act 1950. They were therefore pronounced to have no locus standi to commence this Action
But at the Court of Appeal, Justice Datuk Wong Kian Kheong found that the Sessions and High Court had made legal and factual errors in dismissing the plaintiff’s claims.
It has already been established that the hotel had breached its duty of care to the Deceased, and that its breach of duty had directly caused the death of the Deceased. This was not disputed by both parties.
And the trial judge’s finding that the Defendant could rely on the defence of volenti non fit injuria (that the Deceased had voluntarily incurred risk), solely based on the fact that a pool warning signboard stating that no lifeguard was on duty and that the pool could only be used by a person at his own risk, was wrongly applied. Volenti non fit injuria can only be invoked by if the victim of a tort “had voluntarily agreed to assume the risk of harm… which may be caused by the commission of a tort”. In the case at hand, the Deceased’s consent cannot be proven on a balance of probabilities.
But the question of the Plaintiffs’ identity remains. The Court of Appeal ruled that since the hotel’s management had not disputed the Plaintiffs being the parents of the Deceased when they came to claim the Deceased’s body; and since the hotel’s General Manager had invited the Plaintiffs to dinner, during which he offered to compensate the Plaintiffs for the death of the Deceased on the condition that the Plaintiffs keep this matter quiet and not disclose the incident to the press and social media; the hotel is therefore estopped from denying that the Plaintiffs are the Deceased’s parents.
This is a rare case where the Court of Appeal found that the trial judge had made an error of fact. Justice Wong made reference to the Federal Court’s decision in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, when the Federal Court in that case overturned the decision of the trial judge by emplloying the ‘plainly wrong’ test: that a finding of fact ought not to be disturbed, so long is it not be repugnant to common sense.
Justice Wong had found that the hotel’s compensation proposal was an admission of the hotel’s negligence, as well as the reason the hotel was estopped from denying the plaintiffs, saying that “If they were not the parents, the hotel would not have invited them for dinner, and (the hotel’s) proposal would not have been made”.
How should this affect business decisions you make in the future?
The principle of equitable estoppel is well established in Malaysia, the Federal Court having adopted the American case of Dickerson v Colgrove (1880) 100 US 578 multiple times, wherein Swayne J deliberated that:
“The estoppel here relied upon is known as an equitable estoppel, or estoppel in pais….he who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood”.
In conclusion, extensive fact-checks, careful research and background checks are required before proposing compensation or settlement to someone. Otherwise, that very offer itself may constitute an admission of negligence and liability, as well as estopping one from changing their position in future.