Common law Analysis


(“COMMON LAW”)                                                                                                                                                                     (“Page#1)


The seaside hotel is owned by Hotel Holdings ltd.

Barry is the hotel managerThe hotel is in need of repair and refurbishmenta) The main staircase is badly lit at night

b) Handrails on the staircase is missing

The hotel has its water tanks outside which contains thousands of litres of waterIn the hotel’s backyard next door is a restaurant owned by Usman



  Last week the water tank overflowed, causing a large quantity of water to flood Usman’s next door restaurant. Usman is claiming damages from H.H. ltd. whose directors deny that the company is at fault.

  I as a legal advisor of the company, the first thing I will make it clear to the manager is that the water tank was owned by the H.H. ltd. when the accident took place hence it was solely responsible. But as the company has a separate legal entity and is not able to function on its own, its directors and those responsible for its functioning are responsible and they will be required to reimburse Usman’s next door restaurant. The company’s defense may be that it was due to the staff’s negligence that caused the water in the tank to overflow, but the staff and their functioning is company’s responsibility which hired them. Hence this defense will be ruled out. The amount of damages to be paid will be decided by the court of law only after being convinced through inspection of the restaurant and taking in to account the losses suffered. If the belongings of the restaurant had been insured by it and if the damages suffered could be reimbursed by the insurance company then the court may decide against the claim or levy only small damages.



  Two weeks ago one of the guests came downstairs at 2 am. in the morning. The stairs were badly lit and the guest stumbled and fell. He suffered severe injuries. His wife, who was in an upstairs bedroom, heard him cry out and went to his assistance. She found him lying at the bottom of the stairs. Guests are now claiming damages from H.H. ltd. as it is their son who suffered from shock when told of the accident few days later. He was at home the time he was told.

  The case  would have been pretty easy had the damages were claimed for the guest who was directly affected and suffered serious injuries, but here the damages are being claimed  for their son who suffered the shock after he came to know about the accident. He was not even present at the accident scene. I feel that the defense of the company is strong but not strong enough so as to be free from any liability regarding the shock their son had suffered. The very first thing is that the whole incident could have been avoided had the company been little alert and ordered more lighting to be put on the walls

(“COMMON LAW”)                                                                                                                                                                   (“Page#2”)

surrounding the staircase. Had the handrails be fixed the person could have held on it and would not have stumbled and fell. Even the intensity of the injury had been avoided as he could have caught the railing after he stumbled. Their son would not have suffered from shock had the accident not happened. Some arguments could be made about the circumstances that could have shocked their son as no person with a weak heart could be told very frankly that “your father has fallen from steps and has broken his bones, he is currently in the I.C.U. and doctor’s can’t tell whether he will live or not” instead the matter should be disclosed more thoughtfully and should not be a sudden shock. Taking all the aspects in to consideration the court would decide how much damage is to be paid to the guests.



  Asad, another guest at the hotel, was injured when a waiter dropped a tray in the dining room. The tray was overloaded and contained several plates and a pot of boiling water. The water scalded Asad’s hands when it fell off the tray. Asad is claiming damages. is denying liability stating that it was waiter’s fault. The waiter had received adequate training, the directors said, and had been told not to overload trays.

  The waiter would have been largely at fault here if he had been adequately trained and instructed, not to carry overloaded trays. But since the company had hired this waiter he is acting as an agent to the company and is working for the profit of the company. Hence when the agent or the waiter here makes any mistake the company cannot throw all the responsibility on the waiter but it is equally responsible for the actions of the waiter. Hence the company would have to pay damages to Asad even if the waiter would have made the mistake, but afterwards it is up to the company to punish the waiter for his negligence. But before taking this step the court would have to take into consideration the circumstances which would have led to the accident and also waiter’s defense. It would have to see whether the waiter was well trained and to what extent the waiter is at fault. The court would ask the company to compensate for his medical expenses.



  The hotel runs shop on its premises. One of the guests, Ted bought a bottle of cola in the shop. The drink contained poisonous chemical. Both Ted and his wife Nora became ill as a result of drinking the cola. Nora’s injuries were made worse by the fact that she was already in a poor state of health. The manager has asked for my advice regarding liability to Ted and Nora. Can Ted claim damages under contract law?

  Sec. 2(h) of Indian contract act defines a contract as an agreement enforceable by law. This definition is based on Pollock’s definition which is as follows:” Every agreement and promise enforceable at law is a contract.”

  When one of the guest of the hotel, Ted bought a cola from the hotel’s shop there was a binding contract between the hotel and Ted.  The contract was that Ted had offered the shopkeeper of the hotel a deal that he would buy the cola and in return would pay the

(“COMMON LAW”)                                                                                                                                                                   (“Page#3”)

shopkeeper the worth.. But here the offer is made by Ted taking into consideration that the cola is in good condition. No way he would have been allowed to open the bottle and smell or taste the cola so that he could sense something wrong in it. Hence hotel is also bound by the quasi-contract ( 2004:137 ) that, it is responsible not only to Ted but for all those who consume their cola. But there are some arguments which may go against Ted and Nora, that if Ted had bought the cola way beyond the expiry date, it was his fault that he didn’t check it. According to the law of  “CEVAT EMPTOR” i.e. “Buyer Beware”(2004:226),

it is not the duty of the seller to inform the buyer about all the defects which could have been detected by the buyer had he been little cautious or alert. Last but not the least Ted’s wife Nora who was in poor state of health must not have drunk the cola as colas and junk food should not be consumed by the people with poor state of health .Hence I feel that if the expiry was listed when the cola was bought, the hotel must be discharged from any liability and no damages would be paid to Nora, who consumed the cola despite being unwell.



  Saima, trainee manager employed by HH ltd , was instructed by the manager to take the hotel van for a service, as the brakes were faulty. Saima expressed concerns about driving the van but was told that she had to do as told. The van crashed when Saima tried to brake to avoid Sid who was crossing the road. Sid had not checked that the road was clear and was hit by the van before it crashed. The van caught fire as a result of the crash, causing burns to Saima. The manager wishes me to advise him on the question of liability to Saima and Sid, the directors are claiming , amongst other defenses, that it was not reasonably foreseeable Saima would be burnt as a result of crash.

It is the worst defense on the part of the directors that it was not reasonably foreseeable that Saima would be burned as a result of the crash. They are expected to take into consideration such accidents when your employee is driving a car which had faulty brakes and which had inflammable fuel like petrol or diesel under it. First of all Saima’s safety was   not taken into consideration. The hotel had deliberately put Saima’s life in danger. There would have been another alternative like calling the mechanic over to their place instead of driving the car to the service station. As far as Sid is concerned he could have checked the road before crossing, hence he is also some what responsible, but it is nothing compared to the hotel’s negligence. I would tell the manager that the hotel must be prepared to shell out large amount of compensation for Saima and also to reimburse Sid as the accident would have been averted if the car had its brakes functioning properly. I would also warn the manager that those responsible for forcing Saima to drive the faulty car could be arrested as this offence was punishable under law.


Kapoor N.D. (eds) 2004, Elements of Mercantile Law(Quasi contract),p.137 Educational Publishers, New DelhiKapoor N.D. (eds) 2004, Elements of Mercantile Law(Cevat Emptor),p.226(“COMMON LAW”)                                                                                                                                                                   (“Page#4”)

Educational Publishers, New Delhi