Innkeeper s duties TOPIC1 TOPIC CONTENTS

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1 TOPIC1 Innkeeper s duties TOPIC CONTENTS Common law Innkeepers, guests and their property What is an inn? Who is an innkeeper? Guest or lodger? An innkeeper s duties at common law: to deal safely with a guest s property to provide refreshment to provide accommodation to take reasonable care of a guest s safety to look after a guest s transport An innkeeper s rights at common law: to set rules exercise a lien right of bailment An innkeeper s rights to refuse: accommodation service restrictions Civil remedies for the guest Statutory provisions Queensland and South Australia Other jurisdictions TOPIC OBJECTIVES On completion of this topic, you should be able to: explain what is an inn explain who is an innkeeper explain the difference between a guest and a lodger identify and discuss the duties of an innkeeper at common law identify and discuss the rights of an innkeeper at common law identify those occasions when an innkeeper has a right to refuse service discuss the remedies available to a guest where an innkeeper has breached their duty One of the features of the law relating to innkeepers is that the law will appear to an outsider to still be embedded in the 18 th century. In many respects, they will be right. The topics that relate to the rights and duties of an innkeeper were developed at a time when transport was by horse or on foot, or horse and cart, and communications between places were poor. There was no ringing ahead to make a booking. The role of the innkeeper was to provide staging posts for travellers to ensure that they could get from point A to point B. Without inns, commerce between towns would have been extremely difficult if the inns were more than a day s travel apart.

2 2 HOSPITALITY & TOURISM This chapter begins by examining the common law on innkeepers what is an inn, who is an innkeeper and the distinction between a guest and a lodger. It then looks at the duties and rights of the innkeeper, when an innkeeper can refuse service and the remedies available to a guest where an innkeeper has breached their duty. The chapter concludes with a review of innkeeper s legislation around Australia. THE COMMON LAW 1.0 INNKEEPERS, GUESTS AND THEIR PROPERTY The main rights and duties of innkeepers at common law have been modified by statute over the years. Consumer protection legislation impacts on many accommodation contracts and occupational health and safety legislation applies to the premises and equipment of the inn, while Innkeeper legislation in most states limits the strict liability of the innkeeper. However, having said that, the rights and duties of innkeepers at common law are still significant because they go to the question of responsibility should something go wrong. 1.1 What is an inn? The expression inn used to be understood to mean an establishment which provided accommodation, food and beverage to the travelling public. Today, the expression inn includes most hotels, motels, hostels, serviced apartments, resorts and other establishments, which provide accommodation for the travelling public. The accommodation does not have to be required by every customer but it does have to be available. The provision of liquor and food, while once essential for an establishment to be an inn, may no longer be necessary. For example, in Webster v Orlitz [1917] the Victorian Supreme Court held that, despite a prohibition of liquor trading on a Sunday, an establishment could still be an inn if it continued with the other parts of its business which in this case was the provision of food and accommodation. In Oakford Executive Apartments v Van der Top (1992), O Brien J, again in the Victorian Supreme Court, held that a block of selfcontained executive apartments, where there was limited food service, was an inn. Private hotels and boarding houses are not common inns because the proprietor can pick and choose who is to be accommodated and who is not and this raises the question of the distinction between a guest and a lodger,which is discussed below. 1.2 Who is an innkeeper? The innkeeper, or hotelkeeper, generally refers to a person who is in possession of the premises rather than the owner of the premises. However, in the case of a company running the inn and employing a manager, the company will usually be treated as the innkeeper even if the manager holds the licence. The position of who might be the innkeeper in the case of serviced apartments and strata title hotels where units are individually owned but collectively let under a management agreement is less clear. The decision in the Oakford Apartments case suggests that if they provide accommodation to the travelling public, the body responsible for the management rights may be treated as the innkeeper. 1.3 Guest or lodger? It is necessary to distinguish between a 'guest' and a 'boarder' or 'lodger' as the innkeeper s doctrine of strict liability only applies to guests. Historically a guest was a person who had not made prior arrangements with the innkeeper concerning food or accommodation and they had to be received on reasonable terms. When the law was originally developing in this area, there were not the opportunities that exist today to communicate ahead an intention to stay the night. As a result of technology, this doctrine has been modified

3 topic 1 INNKEEPER S DUTIES 3 to some extent so that prior bookings by any means of communication, e.g. telephone, mail, the web or through a travel agent or tour operator for a fixed or indefinite periodwill not automatically mean that a traveller cannot be regarded as a guest. Nor does it mean that a guest cannot stay on and become a lodger. A boarder or lodger, on the other hand, has previously arranged or contracted with the innkeeper to be received at the hotel or boarding house on the basis of a special arrangement so that the relationship is no longer viewed as innkeeper and guest. Thus, in the event of a mishap, the innkeeper will not be faced with a problem of strict liability, as they would have been if the person were a guest. For example, in Alldis v Huxley (1891) the court held that a horse trainer who had made special arrangements for board and lodging of himself, his staff and horses and stayed for a number of months was a lodger. A similar result was achieved in Hanson v Barwise (1930) where a husband and wife who moved to a hotel, brought with them their own linen and household articles and paid rent monthly in arrears were held to be lodgers. Turner v Queensland Motels Pty Ltd (1968) Facts: Through a business associate, the Turners made a booking at a motel in Brisbane for 10 days with the possibility of an extension. The booking was made by telephone and confirmed by letter. After their arrival and while they were out, their room was broken into and money was stolen. Issue: Was the motel strictly liable for the theft of the money? Were the Turners guests (in which case the motel would be liable) or lodgers (in which case it would not be liable)? Decision: Despite the prior booking through a business associate, the Turners were guests. There was nothing to indicate that they intended to stay for a long time or that they did not intend to return to Adelaide when they had finished their business. Question: What would be the position of the Turners if they had booked accommodation in serviced apartments through a travel agent? Would the answer be different if that same accommodation had been booked through a real estate agent? 1.4 An innkeeper s duties at common law IN BRIEF An innkeeper s duties The duties of an innkeeper at common law are to: deal safely with the guests property; provide refreshment; provide accommodation; and ensure the safety of the guests transport. At common law, a common innkeeper was an insurer of goods and was therefore absolutely liable for loss of those goods even if the loss was caused through no fault of the innkeeper or the innkeeper's employees. The innkeeper was not liable for damages to guests' property unless it could be established that the innkeeper was in some way negligent. In Queensland, to offset this common law liability, an innkeeper usually complied with the provisions of the Liquor Act 1992, which provided an upper limit for liability Innkeeper s duty to safely deal with a guest s property An innkeeper is under a strict duty to look after the property of his/her guests. The innkeeper is an insurer of the guest's property which might be lost or stolen while the guests are on the premises. In Queensland the innkeeper faces the prospect of unlimited liability even if they are without fault. This includes those parts of the premises which are closely related to the operation of the hotel, such

4 4 HOSPITALITY & TOURISM as garages, swimming pools and car parks or infra hospitium (within the precincts of the inn). The test as to whether a particular area is within the hotel's boundary appears to be "is the area in question intended and unsuitable for use in connection with the hotel's business? In Nott v Maclurcan (1903) the court held that even while the carpark was not connected to the hotel, it was still infra hospitium. Williams v Linnitt (1951) Facts: A farmer on his way home from business drove to a hotel to meet friends for a drink. In driving to the hotel he passed his own home. He did not intend to spend the night at the hotel. While at the hotel he had his car stolen from the hotel carpark. The hotel had posted a sign in the carpark, which stated: Carpark. Patrons only. Vehicles are admitted to this parking place on condition that the proprietor shall not be liable for loss or damage to (a) any vehicle; (b) anything in, or on or about any vehicle, however such loss or damage may be caused. The farmer sued for the full value of the car because under the Innkeepers Liability Act 1878 (UK) there was no statutory exclusion or limit on an innkeeper s liability for cars. Issue: Was the farmer a guest? Decision: It didn t matter that the farmer was a local resident and didn t intend to sleep at the hotel. The hotel was an inn and the farmer was the guest of the hotel and someone to whom the hotel owed a duty to look after his property while on the premises. They could not contract out of their common law liability for a guest s property in respect of goods brought within the precincts of a hotel. Even if the innkeeper invites a guest to leave their property by the entrance, the innkeeper will still be liable for that property because the property is still within the boundary of the hotel or infra hospitium. The innkeeper is only strictly liable for the care of guest s property. Unlike the case of a lodger, liability does not depend upon proof of negligence on the part of the hotel nor upon any contract or bailment. The innkeeper has an obligation to keep the property safe. Liability is not dependent upon how the property is lost or damaged unless it is due to the fault of the guest. It should be noted that property does not just mean goods or luggage. It includes trade stock and vehicles, whether they are owned by the guest or someone else. Robins v Gray (1895) Facts: The guest was a commercial traveller who sold sewing machines owned by his employer. When he failed to pay his bill, the hotel sought to enforce its right of lien over the traveller s luggage, which turned out to be sewing machines. Issue: Could the hotel exercise its right of lien where the goods did not belong to the guest? Decision: The machines were part of the guest's luggage despite their exceptional character and so the hotel was entitled to exercise its right of lien. Luggage does not have to be the guest s personal luggage before an innkeeper can exercise a lien over it. The innkeeper is not entitled to be told the nature of the luggage nor to whom it belongs. At common law there are only a limited number of defences available because innkeepers are, as noted above, effectively insurers of their guest s property. An innkeeper will not be liable for the loss or damage of a guest's property if the damage or loss has been caused by:

5 topic 1 INNKEEPER S DUTIES 5 an act of God, i.e. forces which could not have been reasonably foreseen or guarded against, such as an earthquake or extraordinary weather; an inherent fault or defect in the property, such as faulty packaging of perishable goods; actions of the enemies of the state; or the misconduct or negligence of the guest who suffers the loss. Carpenter v Haymarket Hotel Limited (1931) Facts: After checking in, the Carpenters dressed for dinner. Mrs Carpenter placed a diamond ring in a jewel case, which she locked and left in the bedroom. They locked the bedroom door and left the key at Reception. The jewel case and ring were stolen. A House Rule stated that the innkeeper was not liable for guest s valuables that were not left with Reception. Issue: Was the loss of the ring and the jewel box the fault of Mrs Carpenter in not depositing the case in the security safe? Was Mrs Carpenter negligent in leaving the ring and jewel box in an unlocked bedroom? Decision: Mrs Carpenter had taken reasonable care of the jewel box and ring. The loss was not due to any negligence on her part and the notice attempted to exclude liability contractually. The notice was therefore void and the hotel was liable for damages. Shacklock v Ethorpe (1939) Facts: Ms Shacklock left her jewellery and money in her bedroom of the hotel. She had locked it in a jewel box, which she then locked in a large suitcase. When she went downstairs she left the door to the room unlocked. The hotel had not said anything to guests about the need to lock their rooms. When she returned, the jewel box and money had been stolen. Issue: Was the guest negligent in not leaving her jewellery at Reception? Decision: Since the hotel did not request guests to lock their rooms, the hotel itself had been negligent. The hotel in fact wanted guests to leave their rooms unlocked to enable chambermaids to clean the rooms. Question: Do you think these decisions are reasonable or should guests have to accept some responsibility for their actions in this day and age? Innkeepers should ensure that they adequately insure themselves against the risk of loss or damage to a guest s property. Although the innkeeper is not the owner of the property, they have an insurable interest arising from their potential right of lien over the guest's property. In any event, insurance relates to potential liability and because the innkeeper is potentially liable for loss or damage to guest s property, it can obtain liability insurance to cover such potential claims To provide refreshment Every innkeeper has a duty to provide refreshment to every person seeking accommodation. An establishment which refuses refreshment without lawful excuse may be sued for damages. This duty is to provide reasonable refreshment at reasonable prices at any hour of the day or night and an innkeeper may only refuse to do so if they have a reasonable excuse. What amount to reasonable refreshment will vary according to the time of day or night when the guest calls at the hotel.

6 6 HOSPITALITY & TOURISM A guest who arrives at midnight cannot expect a 3 course meal and a hotel which offered a sandwich and coffee would have fulfilled its duty to the guest. Where a hotel has set meal times, a guest can only demand a full meal at those times. It would be sufficient on the hotel's part if at other times it offered cold buffet food or similar. Similarly casual visitors can only demand alcohol during trading hours if they are not guest. A hotel does not have to place the demands of a casual visitor above those of a guest and may give preference on tables in the restaurant to hotel guests. Grounds which will provide an innkeeper with a reasonable excuse for refusing refreshment include situations where a guest is unable to pay or not in a fit state to be received. For example, in Steiner v Magic Carpet Tours Pty Ltd (1984) the court held that an innkeeper was entitled to refuse accommodation to a guest who arrived drunk even though they had booked ahead. These two excuses provide an innkeeper with legitimate grounds to refuse refreshments to vagrants and others when s/he needs to.. It also enables the hotel to regulate the kind of clientele it serves Duty to provide accommodation: An innkeeper is under a duty to provide accommodation at the hotel without any prior contract with the guest who seeks accommodation. The duty is qualified to the extent that the guest must be in a fit state and be able to pay. Payment may be required in advance. The innkeeper has to provide accommodation if there is room. It is only when all the bedrooms are occupied that the innkeeper can refuse to provide accommodation. Constantine v Imperial London Hotels (1944) Facts: Constantine, a West Indian cricketer, was refused accommodation at the Imperial Hotel even though it had vacant rooms. The refusal was on the basis of his colour. He was referred to another hotel owned by the same company. Issue: Can the Imperial Hotel successfully argue that it has discharged its duty to Constantine by offering him accommodation at another hotel? Decision: A hotel proprietor owes separate duties to each guest at each hotel. That duty is not discharged by referring a guest to another hotel. As the first hotel had room, it was bound to provide accommodation. Comment: Today, this would also clearly amount to an act of discrimination, e.g. Racial Discrimination Act 1975 (Cwlth), on the part of the first hotel and so the injured party could also seek a remedy there. A guest's arrival at a late hour or during the night is not a reasonable excuse for refusing accommodation. A hotel is only bound to supply such reasonable and proper accommodation for guests and their luggage as the hotel has. A guest cannot insist on a particular room and it is the hotel's right to allocate rooms to guests Duty to take reasonable care for guest s safety Innkeepers only have a duty to take reasonable care for the safety of their guests. They do not insure the safety of their guests, only their property, and their liability is faultbased. This means that they have a duty to take reasonable care for the safety of their guests and that they are warranting the premises as safe for the guest s use. Liability for the innkeeper then could arise in any one of three ways:

7 topic 1 INNKEEPER S DUTIES 7 in negligence out of the relationship of innkeeper and guest thereby creating an ordinary duty of care or as a non-delegable duty. In the case of the latter, there is a higher standard of care required by the person owing the non-delegable duty of care not only in respect to what they do but also to ensure that where tasks are delegated, they are carried out with reasonable care and skill. Northern Sandblasting Pty Ltd v Harris (1997) 71 ALJR 1428 Facts: The landlord (Northern Sandblasting) had bought a house in In November 1986 it asked Briggs, their usual electrical contractor, to make some electrical repairs to a refrigerator and stove at the house. Mr and Mrs Harris entered into possession of the property in December The electricity was already connected when they moved in. On 2 June 1987 they reported that the stove was not working and so the landlord asked Briggs if he could repair it. On 4 June their daughter went to turn off a sprinkler. The lawn was wet and she did not have anything on her feet. On touching the tap she was electrocuted and suffered severe brain damage as a result of faulty workmanship by Briggs. Issue: Did the landlord owe a non-delegable duty of care to the child living with her parents to ensure that reasonable care was taken by the electrician in carrying out the repairs? Decision: The landlord did owe a non-delegable duty of care to ensure that reasonable care was taken in the repair of the stove. Comment: It should be noted in this case that the non-delegable duty of care was marked by a special dependence and vulnerability because it involved a child. The fact that the landlord was not allowed by law to carry out the repair does not allow him/her to escape his/her duty. A nondelegable duty can be performed by someone else, but it cannot be discharged by using someone else. from the contractual relationship between the parties as an implied term; or under s. 74 of the Trade Practices Act 1974 (Cwlth), there is an implied warranty on the seller in a contract for the supply of services that the services will be rendered with due care and skill. Services are defined in broad terms under s. 4(1) and would catch innkeepers Duty to look after the guest s means of transport The common law has always imposed a duty on the innkeeper to look after the guest s means of transport and has made the transition from horse to car with little difficulty. As a result, innkeepers have a duty to provide accommodation for the guest s car, unless otherwise provided by statute, and this is usually by way of adequate on-site car-parking. Whether carport facilities or a garage are provided is usually determined by planning laws. However, owing the obligation means that the innkeeper is strictly liable for loss or damage to the vehicle. 1.5 An innkeeper s rights at common law IN BRIEF Innkeeper s rights The rights of an innkeeper include: the right to set rules the right of lien; and the right to act as a bailee.

8 8 HOSPITALITY & TOURISM Right to set rules An innkeeper has a right to set reasonable Rules of the House for guests. Notice of the Rules must be drawn to the attention of the guests, preferably on arrival but certainly before a loss occurs, and once they have been drawn to a guest s attention they are bound to follow them. While they generally do not operate contractually, failure to follow House Rules will amount to evidence of negligence on the part of the guest and will provide the innkeeper with a defence if the guest suffers loss as a result. An innkeeper cannot use such rules contractually to avoid duties imposed by law, such as the duty to receive guests and the duty to take reasonable care for the safety of the guest and their goods. Where the guest has brought excessive amounts of cash or jewellery and it is not being carried on them, it is a common rule that it be deposited at the front desk if the innkeeper is to be liable should a loss occur. Clothing or jewellery that a guest constantly uses, such as a watch or ring, would not be caught under this rule. Thus, in Jones v Jackson (1873) failure on the part of a guest to take any notice of a house rule and lodge money at the front desk was held to be negligent, while in Carpenter v Haymarket Hotel Limited (above at p. 208) the guest was not negligent because the House Rule was not reasonable. While the courts have been prepared to accept the innkeeper s right to spell out the safety precautions that guests should take in respect of their property, they have consistently declared attempts to contractually limit or exclude liability as being contrary to public policy and therefore void: see, for example, Carpenter v Haymarket Hotel Limited (1931) above at p. 208 and Olley v Marlborough Court (1949) at p The innkeeper has the right to set down minimum standards of behaviour and dress if s/he wishes. If there is a rule in the hotel that no man without a jacket and tie will be served, the hotel could refuse service on the basis that someone has not complied with these requirements on dress and is therefore not in a fit state to be served. However, if a hotel refused service on the basis that a person was not in a fit state to be served merely because the guest was female, or of a different colour or ethnic group, this would not be within the scope of reasonable excuse and would amount to a breach of the anti-discrimination legislation looked at earlier BUSINESS TIP Setting down enforceable House Rules The innkeeper has a right to set the minimum standards that a guest must comply with if s/he wishes to stay at the establishment. However, they must be conveyed to the customer as soon as possible after the arrival of the guest and no attempts can be made to contractually limit or exclude liability or they will be void Right of lien An innkeeper only has certain rights over a guest s luggage or goods, not those of a lodger. This is to compensate the innkeeper for their strict duties. For example, the innkeeper can exercise a lien over the guest's luggage or goods when the guest does not pay their account. At common law, a lien or right of lien is a legal right giving passive possession and control over the guest's luggage or goods until such time as the guest pays the account. In the case of a hotel, a lien attaches to property as soon as the property is brought within the boundaries of the hotel by the guest. It should be noted that it doesn t matter whether the guest owns the property as long as it is in his/her possession.

9 topic 1 INNKEEPER S DUTIES 9 The innkeeper's lien applies not only to persons drinking on the establishment but also to guests staying on the establishment. Naturally the innkeeper owes a duty to take reasonable care of the property over which they are exercising a lien. The right of lien would be of little value to an innkeeper if they did not also have a right of sale over the property. The right of sale is in addition to and separate from the ordinary right of lien and only operates where expressly provided for by statute. An innkeeper may retain the amount of the debt due out of the proceeds of a sale, together with the costs and expenses of the sale, and the balance must be paid to the guest. Irving v Heferen [1995] Facts: Irving had paid for his room in advance but subsequently ran up a large telephone bill. The manager became concerned that Irving would leave without paying and, after phoning and knocking on his door without success, he entered the room with his master key at 6.15am and found Irving asleep. The manager woke him and demanded payment for the phone calls. Irving refused to pay, instead going back to sleep. The manager then searched Irving s belongings and took possession of his boots, a syringe, scales and a carry bag which contained a wallet with $40 and some marijuana. He took the $40 and put a receipt for part payment of the phone bill in the wallet and reported the marijuana find to the police, locking all the evidence up in the motel safe. Issues: Was the motel manager an innkeeper? If he was, did the innkeeper s lien extend to telephone charges? If the innkeeper s lien did apply, was the manager entitled to enter the guest s room? Did he have the right to take the goods into his possession? Decision: The motel was an inn and Irving was a guest, so the innkeeper s duties applied. The lien traditionally covered accommodation, food and beverage and extended to other charges a guest may incur such as telephone and fax. When a guest refuses to pay, as in this case, the innkeeper has a right to enter a guest s room and exercise a lien over the guest s goods, but note this is only warranted in exceptional circumstances. Also note that the right is only to passive possession and the searching of the belongings. The removal of the $40 is not a right conferred by a common law lien. Question: If you were a manager and placed in a similar position, what would you do? Bailment Bailment impacts on many areas of tourism, travel and hospitality. It determines, for example, the liability of private carriers for a passenger s luggage, accommodation providers for the property of lodgers, establishments that have cloakrooms or store the goods of their guests, or even guests who may hire goods. A bailment arises when goods are delivered to a person on condition that the recipient will ultimately return them to the person depositing them. Goods under a bailment can be hired, lent, pledged or deposited for safe custody. Bailment is a transaction in its own right. Three conditions have to be satisfied for a bailment to come into existence: The bailor must retain title and ownership The bailee must only have temporary possession and control of the goods The ultimate possession of the property must revert back to the bailor in identical form, unless the goods are ordered to be transferred to a third party. A bailment situation generally arises in one of two ways: by the owner surrendering goods to another for the purpose of having some services performed on them, e.g. leaving clothes with a drycleaner or leaving a car at a garage for a service. The person receiving the goods is expected to be skilled in their profession and to return the goods upon completion of the service; or

10 10 HOSPITALITY & TOURISM when a person borrows or rents goods from the owner, in order to use them for their own purpose, e.g. renting a TV or hiring a car. In either form of bailment contract, there is a voluntary delivery or transfer of possession of the goods by the owner to another party that creates the bailment relationship and the borrower is expected to exercise reasonable care. What is reasonable care though will depend on the particular circumstances. Thus, if a charge has been made by the bailee for providing the service, a higher standard of care may be required than where the bailment is gratuitous or only for a nominal charge. If the goods are lost or damaged, the onus is on the bailee to prove that they were not at fault. In order to protect themselves from liability, it is normal business practice where there is a contract with the bailor for the bailee to insert an exclusion clause into it. Coggs v Barnard (1703) Facts: The plaintiff alleged that the defendant had contracted to remove several hogsheads of brandy from one cellar to another but had been so careless that one of the casks split and spilt brandy. Issue: Was there a bailment situation? Decision: The fact that the plaintiff trusted the defendant with the goods was sufficient to oblige the defendant to exercise care. Whenever a guest takes valuables to the reception area of a hotel for safe keeping and the hotel accepts them, it is entering into a relationship of bailment with the guest. The agreement is that the hotel will return the valuables to that person. Bailment must be distinguished from a licence to use land or other premises for the purpose of leaving or depositing goods because there is a lower standard of care placed on a licensor. In a bailment situation, possession of goods passes from one person to another. This is not necessary in the case of a licence. This becomes a crucial issue where it must be determined whether a bailee's duty of care was owed when the goods have been lost or damaged. Whether possession has changed hands depends in each case on who has control over the goods, and this is a question of fact. Tinsley v Dudley [1951] Facts: Tinsley left his motor bike in an unattended closed yard adjoining and forming part of the hotel premises of the licensee, Dudley. When Tinsley left to go home he found his motor bike had been stolen. Issue: Was Dudley a bailor or licensor? Decision: Because there was no delivery of possession to Dudley, either actual or constructive, he was not liable for the loss because he was only a licensor. Compare: Ultzen v Nicols [1894] Facts: On entering the defendant's restaurant, a waiter took the plaintiff's coat and hung it immediately behind the plaintiff. When the plaintiff had finished his meal, he went to collect his coat and found it missing.

11 topic 1 INNKEEPER S DUTIES 11 Issue: Was there a bailment of the coat or merely a taking of the coat by the waiter as part of the service provided by the restaurant but without any intention of taking charge of it? Decision: There was evidence on which the jury was justified in finding that there was a bailment of the coat. The action of the waiter who relieved the plaintiff of his coat and selected the place where to put it suggested that there was an intention of taking charge of it. Comparing the two cases shows how hard it is to determine whether the relationship between the parties is going to be one of bailor and bailee or licensor and licensee. It should also be mentioned that within the hospitality industry sub-bailments are not uncommon. Here the guest (the bailor) has left goods with for example the hotel (the bailee) who delivers the goods to a third person (the sub-bailee) for a limited time or particular purpose, e.g. drycleaning or repair. By taking possession of the goods, the drycleaner or repairperson (the sub-bailee) comes to owe the duties of a bailee, not only to the sub-bailor who delivered the goods, but also to the head bailor even though there is no privity and no contract between them. Morris v C.W.Martin & Sons [1965] Facts: Morris sent a mink stole to a furrier for cleaning. With the consent of Morris, the furrier sent the fur on to C.W.Martin & Sons, who were expert fur cleaners. The fur was stolen by an employee of C.W.Martin & Sons while it was still in their possession. Issue: Was the relationship one of bailor and bailee or licensor and licensee? Decision: The relationship of bailor and bailee existed between Morris and C.W.Martin & Sons. Possession had changed hands with the consent of Morris, and it was never intended in Morris mind that the fur would never be returned. The duties of a bailee are to: exercise due care of the goods, the standard of care being that of the ordinary reasonable person retain possession avoid unauthorised use; and return the goods. The duties of the bailor, on the other hand, are: not to interfere with the bailee's possession; and to make known any dangers. 1.6 An innkeeper s right to refuse BUSINESS TIP Refusing accommodation or service It should not be assumed that an innkeeper can never refuse accommodation or service. An innkeeper can refuse accommodation when: all the bedrooms are full; or can refuse accommodation or service when: the guest is not in a fit state, e.g. insane or drunk; or the guest is unable to pay.

12 12 HOSPITALITY & TOURISM Accommodation The hotel can also refuse accommodation or refreshment if the guest is drunk or under the influence of drugs, arrives with pets which he or she wants accommodated, or if the hotel believes the guest's presence would cause annoyance to other guests Service While there is a fundamental principle called freedom of contract, i.e. the right of any person to contract, or refuse to contract, with any other person, a hotel's duty to a guest is an exception to this rule because hotels are under a legal duty to contract with guests seeking refreshment or accommodation. However a hotel has some discretion because it can refuse to provide service in the following cases: where guests who are not in a fit state, e.g. drunk or under the influence of drugs; or to guests who are not able to pay. A person who is in a fit state when s/he arrives at an hotel may cease to be in a fit state subsequently. They might get drunk or take drugs and harass the other guests. What is a fit state will also vary with the type of hotel. Wellington boots, no jacket and open necked shirt might be a reasonable standard in a small country hotel but would not be reasonable in a 5 star city hotel Restrictions on the right to refuse service An innkeeper needs to be aware that restrictions on the right to refuse service can arise from antidiscrimination legislation such as the Commonwealth s Sex Discrimination Act 1984, Disability Discrimination Act 1992 and the Racial Discrimination Act For example, under the Sex Discrimination Act it is unlawful to discriminate against a person. This means that you cannot treat a person less favourably than others because of: their sex; marital status; and characteristics imagined to be associated with a particular sex (stereotyped images that women are emotional, weak or illogical) In particular, it is unlawful to discriminate in the areas of: employment; education; provision of goods, services and facilities; and provision of accommodation. Whitehead's case (1985) Facts: A hotelier in Victoria refused to serve lunch to a woman who was breastfeeding her baby in the hotel's dining room. Issue: Did the hotel s refusal to serve the woman amount to discrimination? Decision: The actions of the hotelier were held to be in breach of the Equal Opportunity Act 1995 (Vic). Gill v El Vino Co (1983) Facts: El Vino Wine bar was a well-known establishment in London and had a rule that women were not allowed to stand and drink at the bar. The plaintiffs, both women, entered and stood at the

13 topic 1 INNKEEPER S DUTIES 13 bar and ordered two glasses of wine. The barman refused to serve them at the bar but said if they were to sit at a table they would be served. Issue: As this rule only applied to women, were they being discriminated against? Decision: A person discriminates against a woman in any circumstances relevant for the provisions of the Act if, on the ground of her sex, he treats her less favourably than s/he treats or would treat a man. Comment: Although this was an English case referring to English anti-discrimination legislation, a similar outcome would occur in Australia. Under the Racial Discrimination Act, racial discrimination is prohibited in certain areas of public life and the Act provides for equality before the law on the ground of race. It is illegal to discriminate in the areas of: access to or use of public places and facilities; land housing or other accommodation; provision of goods and services; employment; and advertisements In ex parte Coe and Duncan (1983) the Equal Opportunity Board of NSW awarded damages to two aboriginal women who were refused service in a Newcastle hotel because of their colour. In an earlier case involving aboriginals, Samuels v Traeger (1978), a publican was convicted and fined $150 for refusing to allow the local primary school to hold its annual dinner at the hotel because the school had several aboriginal teachers on its staff. 1.7 Civil remedies for the guest Where an innkeeper has refused to give accommodation or refreshment to a guest and the guest can establish that refusal was without reasonable excuse, the hotel may be sued for damages by the guest. Whether it is worth the guest's effort is another question because the amount of damages they are likely to receive is difficult to estimate. It will be based on the amount of damage (in dollar terms) they have suffered and this is generally inconsequential. What is clear is that it is far better for the hotel to keep the matter out of the courts and away from any form of publicity because of the damage that it can cause to the standing or reputation of the hotel. Where the refusal is for a reason covered either by Commonwealth or state/territory antidiscrimination legislation, generally the remedy will be in the form of monetary compensation. REFLECTION AND REVISION 1.1 Indicate whether each of the following statements is true or false: Guesthouses are treated for the purposes of the law as inns Only an owner of a hotel can be an innkeeper A guest is a person who has made prior arrangements with the innkeeper A boarder is a person who has previously arranged with the innkeeper to be received at the hotel or boarding house on the basis of a special arrangement True False

14 14 HOSPITALITY & TOURISM True False An innkeeper is under a strict duty to look after the property of their guests The innkeeper is strictly liable for the care of guest s and lodger s property There are no defences available to an innkeeper where a guest s goods are lost or damaged An innkeeper is under a duty to provide accommodation to a guest There is no duty on an innkeeper to look after a guest s car An innkeeper can exercise a right of lien over a guest s property if the guest refuses to pay their bill The essential characteristic of bailment is the passing of property to the bailee An innkeeper has no right to refuse to provide accommodation or service 1.2 Discuss how anti-discrimination laws can impact on an innkeeper. 1.3 Are the duties of an innkeeper, which amount to strict liability, good law in the twenty-first century? 1.4 Should an innkeeper be able to stop a woman breastfeeding her baby in a hotel s lounge if it causes embarrassment to other customers and makes them leave the premises to drink at another hotel? STATUTORY PROVISIONS The first part of this topic considered the common law position of innkeepers in Australia. However, most of the states and territories have modified the common law through legislation ( Innkeepers legislation ). The purpose of this legislation is to limit the strict liability that innkeeper s face with respect to guest s goods and, in the Northern Territory (ss. 10, 11), to supplement the common law right of the innkeeper s lien. IN BRIEF Innkeeper s legislation (by date) State Australian Capital Territory Legislation Innkeepers Liability Act 1902 (NSW) Victoria Carriers and Innkeeper s Liability Act 1958 New South Wales Innkeeper s Act 1968 Northern Territory Hotel-keepers Act 1981 Western Australia Liquor Licensing Act 1988 Tasmania Liquor and Accommodation Act 1990 Queensland South Australia None None

15 topic 1 INNKEEPER S DUTIES QUEENSLAND AND SOUTH S AUSTRALIA The innkeeper s legislation was repealed and not replaced when both states were reviewing their liquor licensing legislation, although a definition of who is a lodger can be found in s. 5 of the Liquor Licensing Act 1997 (SA). This means that in both states the common law position applies and that innkeepers have a duty of strict and unlimited liability for the property of guests. Innkeepers who display the old statutory limitation notice are not protected and may in fact breach s.53g of the Trade Practices Act (which prohibits a corporation from making false or misleading representations concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right or remedy). Furthermore, any attempt to contract out of liability is ineffective as noted above. 2.0 OTHER JURISDICTIONS The innkeeper s legislation that exists in the states and territories is not uniform, although they have all modelled their legislation on the Hotel Proprietors Act 1956 (UK). Definitions of inn and innkeeper follow the common law definitions while guest requires in addition to the common law definition that the person spends the night at the licensed premises. This means that the decision in Williams v Linnitt [1951] above where the farmer who stopped at his local inn for a drink on the way home was held to be a guest would not apply to these jurisdictions. Loss or damage to motor vehicles and their contents (ACT; s.4; NSW; s. 6(a); NT: s. 7; Vic; s. 29(a)), as well as loss or damage to a guest s property (ACT: common law; NSW: s. 5; NT: s. 5; Tas: s. 158A(2); Vic. s. 28; WA: s.107 though effectively common law) are excluded from strict liability. In New South Wales (s. 8), Northern Territory (s. 7) and Victoria (s. 31) they are also excluded from the innkeeper s lien and this means that they would no longer be liable in cases like Williams v Linnitt [1951] above. In order to obtain the protection of the legislation, innkeepers must display a notice in a prescribed form in the reception area (ACT: s.6; NSW: s. 7(2); NT: s. 6(1); Tas: s. 158A(3)(c); Vic: s. 30(4); WA: s. 107(c)) and in the Australian Capital Territory (s. 6), New South Wales (s. 7(2)), the Northern Territory (s. 6(1)) and Victoria (s. 30(4)) and in the guest rooms too. Because these are statutory notices, whether the guest sees, reads, or even understands them is unnecessary and the contractual rule in Olley v Marlborough Court [1949] above will not apply. While there is a statutory limit on liability if the goods are lost or damaged without fault on the part of the innkeeper or their employees, there is no limit if the goods have been lodged for safe custody (ACT: s. 4(b); NSW: s. 7(3)(a); NT: s. 6(3); Tas: (s. 158(3)(b); Vic: s. 30(1)(a)(i); WA. s.107(b)) or in the Australian Capital Territory (s. 5), New South Wales (s. 7(3)(b)), the Northern Territory (s. 6(3)) or Victoria (s. 30(1)(a)(ii) if there are no safe custody facilities available. Statutory limits State Amount Australian Capital Territory $40 New South Wales $100 Northern Territory $200 Victoria $100 $2,000 if safe custody Western Australia $200 Tasmania no limit IN BRIEF

16 16 HOSPITALITY & TOURISM REFLECTION AND REVISION 1.5 Explain how those states which introduced innkeeper s legislation, have limited the application of decisions in cases such as Williams v Linnett and Olley v Marlborough Court. 1.6 Is there a need for uniform modern innkeeper s laws in Australia? Discuss.