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Kelekolio v Western Samoa Kitano Ltd [2006] WSCA 4 (26 April 2006)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

BETWEEN

MIKA KELEKOLIO,
of Wellington, New Zealand, Consultant.
Appellant

AND

WESTERN SAMOA KITANO LIMITED,
a local entity carrying on hotel business in Apia.
Respondent

Coram: The Honourable Justice Ellis

The Honourable Justice Gallen

The Honourable Justice Salmon

Hearing: 20 April 2006

Counsel: Mr. R S To’ailoa for the Appellant

Mr. P Fepulea’i for the Respondent

Judgment: 26 April 2006

JUDGMENT OF THE COURT

Introduction

[1]. This appeal is against a decision of the Chief Justice dismissing a claim by the Appellant against the respondent for damages said to arise from an incident which occurred on the 2 January 2004.

Background

[2] The appellant lives in New Zealand. He came to Samoa in December 2003 to undertake consultancy work and stayed at the Respondent Hotel. On the evening of 2 January 2004 he was drinking with his girlfriend and another couple in the poolside bar. The girlfriend, referred to in the judgment as 'J' went to the bar where she met a girl who was very drunk and crying because she did not wish to be taken home by the man she was with. J took the girl to the appellant’s room. The girl’s companion made a nuisance of himself demanding that the hotel staff bring the girl back downstairs. The hotel made attempts to get the girl to come downstairs by having its security officers go to the room. The officers were unsuccessful in achieving this objective.

[3] By the time of the security men’s last visit to the room the Appellant was there and complained that they forced their way in. This was denied by the security men. An incident later occurred downstairs. The Appellant says he tried to take photos of the security men and was forcibly restrained by them. He says his camera was damaged and the men tried to drag him from the hotel. The security men agree that one of them attempted to move the appellant to his room but deny any damage to his camera.

The proceedings

[4] The statement of claim alleges that the Appellant who was a guest of the hotel was subjected to aggravated assault and battery by the security officers of the respondent including invasion of privacy. There follows a description of what the appellant said occurred on that night. The statement of claim then alleges that as a result of the actions described the appellant suffered loss and damage including damaged camera, pain from the assault and hurt pride and feelings. There is a specific pleading that the appellant was a guest of the respondent at the time and the respondent was obligated to ensure the appellant’s safety and welfare. Damages were sought.

[5] The statement of defence admits the allegation relating to the respondent’s obligations in relation to the appellant’s safety and welfare. It also acknowledges that the security officers were those of 'the defendants.'

The judgment

[6] After reciting the facts the Chief Justice noted that the claim was framed in the tort of assault and battery and that it proceeded on the basis that the security officers were those of the hotel which should be vicariously liable for any assault committed by its employees. However the Judge concluded (correctly) that the security officers were actually employees of South Pacific Security, not the hotel. He found, following the line of authority that commences with Mersey Docks and Harbour Board v Coggins Griffiths (Liverpool) Ltd and McFarlane [1994] 2 All ER 345 that there had been no transfer of control to the hotel so that there could be no liability on the part of the hotel for the actions of South Pacific Security’s employees. The Chief Justice refrained from making any finding on the facts in case the plaintiff wished to proceed against South Pacific Security.

[7] The Chief Justice also noted that the plaintiff submitted that it would have been an express or implied term of the contract between the parties that the hotel would provide a safe and secure environment for the plaintiff whilst a guest of the hotel. He concluded however that a cause of action in contract was not pleaded, that there was no evidence of any express contract between the plaintiff and the hotel for the provision of a safe and secure environment and that such a term could not be implied. He therefore rejected the submission based upon contract.

The submissions in this Court

[8] Mr. To’ailoa’s submissions may be summarised as follows:

(1) There was evidence from which the Court could conclude that a transfer of responsibility of the security officers had occurred so that the hotel was responsible for their actions.

(2) That both parties had proceeded to trial on the basis that the hotel was responsible for the actions of the security officers so that the Chief Justice’s finding caught the plaintiff by surprise.

(3) The claim in contract should not have been rejected.

[9] For the defendant Mr. Fepulea’i supported the decision of the Chief Justice but conceded that until the Judge raised the issue the respondent had assumed that the security officers were employees of the hotel. He acknowledged too that the respondent admitted in its statement of defence that it had a duty to ensure the plaintiff’s safety and security while a guest of the hotel.

Discussion

[10] We have concluded that for the reasons he outlined the Chief Justice was correct in his finding that the security officers were employees of South Pacific Security and that on Mersey Docks principles there had been no transfer of responsibility. However that is not the end of the matter. The Mersey Docks line of cases concerns the duties owed by employers to employees. This case concerns the duty owed by a hotel to its guests. That duty could be either in task or in contract or both. We accept that in the case of the tort of assault and battery the question of vicarious liability will arise but if the duty arises in contract such considerations may be irrelevant.

[11] The appellant submits that paragraph 5 of the statement of claim is a pleading in contract. There is no doubt that a contractual relationship arises between a hotel and its guests. In this case the defendant has admitted paragraph 5 and the obligation to ensure the plaintiffs safety and welfare pleaded therein. We accept that the pleading can be regarded as one in contract. The question arises therefore whether the hotel’s actions from the time it sent the security men to the appellant’s room up to the time of the incident downstairs amounts to a breach of the admitted obligation. It seems to us that in this context it is immaterial whether the security officers were employed by the hotel or the security company. The important consideration is that they constituted the hotel’s security.

[12] The obligation in contract could arise in one of two ways. The first might arise if it were held that in breach of its contractual obligations to the appellant the hotel had instigated the situation of which he complains by its instructions to the security officers. It could also arise form a breach of its non-delegable obligation to the plaintiff accepted in the pleadings.

[13] On this limited basis we allow the appeal and direct that the matter be referred back to the Chief Justice for findings to be made on the issues referred to above. The appellant is entitled to costs of $500 together with disbursements to be fixed by the Registrar.

Honourable Justice Ellis

Honourable Justice Gallen

Honourable Justice Salmon

Solicitors

Toa Law for the Appellant
Fepulea’i and Schuster for the Respondent