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CI Times Weekly | Current Issue 271 | 06 October 2008

Are paying guests owed a duty of care by hoteliers?

The debate is raging about the rights and wrongs of guests and accommodators after a large sum of money was stolen while the guests lay sleeping in a locked house operated by a backpacker hostel.
The guests wrote letters to the editor of both papers claiming the accommodator had blamed them for having so much cash in their bags and the accommodator’s reply in the paper did seem to reflect that view.
Another accommodator has weighed in with a letter asking whether the guests are ‘seriously suggesting there be laws that an accommodator must indemnify guests’ for loss under such circumstances.
In search of answers, CI Herald rang some accommodators to see how they handle such situations but promised there would be no names so they could give their candid opinion as well as speaking with a lawyer from one of our top law firms.
Industry opinion
The hotelier at one of our largest establishments said: “There is an expectation in the industry to take reasonable care of your guests and that accommodators must have taken every reasonable caution.
“There is duty of care to the guests and in our hotel, every room is provided with a room-safe and there are security guards on duty 24 hours, 7 days a week or guests can deposit any valuables in the main safe at the front desk, if they wish”.
Access to the rooms is by way of smart cards which tells who has been in the room and at what time they entered and left the room which is a very valuable management tool for security issues regarding cleaners and other staff.
If any guests do have any issues or concerns, they need to be referred to the attention of management as soon as possible and he claims that guests have always been satisfied with their procedures in handling any such complaints.
Nevertheless, the guest must also have taken reasonable care and precautions with their possession such as putting all their valuables away but because of their tight security system, any such incidents have tended to happen off site and he recommends that guests safely put away their possession and not leave them unattended while they go swimming or similar.
Another top of the range establishment says his resort has a responsibility to make everything safe and secure. The reputation of the Cook Islands as a holiday destination is at stake and although he felt that the letters to editor were supportive of the operators because the guests have been putting negative comments on the internet, he agreed that they ought not go ‘over the top’ and that there must be some sort of culpability. Nevertheless, when clients check in they ask their guests to sign a disclaimer that the hotel will not be held accountable for their safety and security.
CI Herald also spoke to the manager of a small budget place where all the guests are given the key to their room and ‘things are pretty safe’ in the establishment which he likened to a guest house or a bed and breakfast with 9 double bedrooms, all of which have a king size bed and no share rooms, but bunks are available if necessary.
There is only the one key (which they guest has) and the cleaners only access the room if the guest asks for their room is to be serviced in which case, they leave their key with reception to open the room and so far, everything has gone very well. In the past, they used to take passports and valuables in the safe but have never had any break-ins or losses.
Cook Islands Innkeepers Act 1984
Our legal eagle said that under section 8 of the Cook Islands Innkeepers Act 1984, there is a maximum of $1,200 recoverable in the aggregate or a maximum of $300 for a single article if they can prove the property was stolen damaged or lost through default (neglect) of innkeeper; or the property had been deposited on behalf of the guest in a container fastened or sealed by the guest. If the guest arrived and requested the item to be deposited and the innkeeper defaulted or was unable to do so.
Every case is looked at on a ‘case by case basis’ and if the innkeeper can demonstrate they have taken every reasonable precaution, the court is likely to find in their favour. On the other hand, the guest can argue neglect on the part of the innkeeper and they have suffered severe emotional stress from the experience the court may award more than the maximum provided in the law.
Incidentally, CI Herald had already found an old Harvard Law review dated from November 1903 (yes, from 105 years ago), which explained that the courts of old established strict liability on the innkeeper (hotelier) because they recognized that the guests in an inn (hotel) were pretty much in the hands of ‘the innkeeper and his servants’.
The innkeeper’s liability (in those days) stood unless the innkeeper could show that the guest assumed the ‘entire and exclusive care, control and possession of the goods’ in question.