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Written by Peter Carter

May 26, 2015

The logistical and linguistic hurdles of having to bring holiday injury claims in a foreign jurisdiction can often outweigh their benefit.
That was the very point under consideration in Dr Jane Hargood’s injury compensation claim arising out of the collapse of floorboards at Bangkok’s Mandarin Oriental Hotel during a Thai cooking demonstration.

Dr Hargood – a Sydney GP – was in the process of washing her hands when the floor collapsed beneath her feet, sending her asunder until her outstretched right hand reached out to a bearer to bring her to a jarring stop mid-freefall.

Seriously impaired in her work capacity, she commenced her proceedings in the Supreme Court of New South Wales against three Thai companies said to be the owners, operators and managers of the hotel who she served in their home jurisdictions in Thailand and Hong Kong.

In response – predictably enough – the overseas defendants sought orders from the court that the proceeding should be stayed because NSW was an “inappropriate forum”.

Hargood then decided to pursue only the hotel owners and discontinue against the operator Mandarin Oriental and its local Thai subsidiary.

The case turned on when the accommodation contract had been formed at whether or not the “exclusive jurisdiction of Thai courts” provision in the Guest registration Form signed when she arrived at the Bangkok establishment at 1:00am, was binding.

Justice David Davies concluded that the accommodation contract was completed at the time the booking reservation was made by her travel agent weeks before her arrival. In particular the hotel had sent a “confirmation” email complete with reservation and guarantee secured by Dr Hargood’s Amex credit card and specifying cancellation terms.

The booking was not – as contended for by Mandarin Owners – simply an offer capable of acceptance by the guest upon her arrival at check in.

“In my opinion, the contract was made at the time the reservation is made not at the time of check in the hotel. The parties have agreed to the reservation to all necessary terms of the contract,” wrote Davies. “The result is that the exclusive jurisdiction provision on the Guest Reservation Form is not a term of the contract between the parties”.

Justice Davies then had to decide whether New South Wales was a “clearly inappropriate forum” such that he should stay the proceedings.

Considering at least six witnesses may be called to give evidence on behalf of Mandarin Owners in Bangkok – including the master cooking instructor himself – and the fact that the lex loci delicti that even an Australian court must apply was the law of Thailand, there were numerous factors favouring a trial there.

On the other hand the inconvenience and financial hardship to the plaintiff in having to take leave from her practice to conduct a trial in a different language abroad was also compelling.

Given that it was not suggested that litigating proceedings in New South Wales would be a financial hardship on the Thai company and because it had already engaged Australian lawyers to represent them, the court was not satisfied Mandarin Owners had discharged its onus of showing that New South Wales was an inappropriate forum.

Its application was dismissed and the contest will proceed to trial – applying Thai law – in NSW, if not settled sooner.

Hargood v OHTL Public Company Ltd [2015] NSWSC 446 – view decision

Categories: Personal Injury , Litigation & Law Practice , Holiday & Travel Law

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