Learning to cook a Thai red curry does not sound like a recipe for serious injury. But accidents do happen, as an Australian guest found out at a hotel cooking class in Bangkok.
In Hargood v OHTL Public Company Ltd  NSWSC 446, Justice Davies in the Supreme Court of New South Wales had to decide whether the guest, Dr Hargood, needed to go back to Thailand to sue the operator of the cooking school for compensation for her injury, or should be allowed to continue the law suit she started in New South Wales.
Where and how did the injury occur?
The Oriental Thai Cooking School is an activity conducted by the Mandarin Oriental Hotel, Bangkok (OHTL), one of the top hotels in the world. It is held in an antique wooden house. The TripAdvisor reviews of the cooking school are uniformly excellent – ‘A Must for Foodies’.
Dr Hargood was washing her hands at the teacher’s request when the floorboards on which she was standing gave way. She injured her right shoulder in an attempt to save herself falling through the floor. Being a medical specialist, she suffered significant economic loss because her injury restricted her earnings from her medical practice in Sydney.
Why did the hotel argue that Thailand was the right place for the law suit?
Originally, Dr Hargood sued the owners and managers of the Mandarin Oriental Hotel; but proceeded only against the hotel operator in the Supreme Court of New South Wales.
Her claim was in negligence, claiming various failures to provide safe premises for paying attendees of the cooking school, mainly that the timber deck was unsafe.
The hotel operator, OHTL, applied for a stay of proceedings on the grounds that the Supreme Court of NSW was an inappropriate forum for the trial of the proceedings (Practice Rule 11.7 (2) (b) UCPR).
First and foremost, OHTL argued that a clause in the check-in form made Thailand the right place for the law suit. The clause was the exclusive jurisdiction clause in the Guest Registration Form (GRF) which Dr Hargood had signed when she checked in at the hotel, which stated:
I agree that any dispute or claim, that arises out of or is related to such accommodation and/or services shall be subject to the law of Thailand and the exclusive jurisdiction of the courts of Thailand.
If OHTL’s argument was accepted, then the exclusive jurisdiction clause in the GRF would be effective to prevent Dr Hargood from suing in the courts of NSW.
But what if the check-in was too late for an exclusive jurisdiction clause to be included in the booking?
Dr Hargood argued that the booking contract was formed well before the check-in, that it was formed at the time when the hotel emailed her travel agent:
We are pleased to confirm your reservation as stated below.
The reservation stated details which included the guest’s name, arrival and departure details, number of guests, the room type and the daily rate. There were details of a credit card which could be debited with a one night’s cancellation fee, if less than 24 hours notice of cancellation was given and for a no show. There was no reference to the exclusive jurisdiction clause in the reservation.
The court decided: In my opinion, the contract was made at the time the reservation was made and not at the time of check-in at the hotel. The parties had agreed in the reservation to all the necessary terms of the contract including the dates on which the rooms were reserved and the cost of the rooms. Significantly, the reservation of the rooms was guaranteed by the American Express card.
The court noted that the hotel had partly performed the contract by providing the fast track service at the airport and the airport transfer before the check-in at the hotel.
The court rejected the argument that the GRF was a collateral contract or a variation of the existing ‘booking contract’ because there was no fresh consideration given for the GRF, i.e. the hotel did not provide anything extra, such as a room upgrade.
Therefore, because the exclusive jurisdiction clause was not a term of the contract when the reservation was made, it did not prevent Dr Hargood from suing in the Supreme Court of NSW.
Was the Supreme Court of NSW a clearly inappropriate forum?
OHTL then asked the court to exercise its discretion to stay proceedings on forum non conveniens grounds. They argued that the continuation of the proceedings in the Supreme Court of NSW would be oppressive or vexatious.
The court considered these factors put forward by OHTL in weighing up whether or not to stay the proceedings:
- The residence of the parties to the litigation and the number and location of likely witnesses
The fact that there were 6 witnesses who resided in Thailand was not a significant inconvenience given that evidence by audio visual link is relatively common and relatively easy to organise ... In any event, any disadvantage in relation to testing the credit of these witnesses is likely to be that of the plaintiff.
- Place of the incident
A view [a site inspection] was not needed because there is nothing especially complex about where the accident happened and because photographs would suffice.
- The law governing the claim
Because the claim is in tort, the law of Thailand is to apply as the lex causae. There was no particularly complicated aspect to Thai law in relation to negligence ... or concepts novel to Australian law which meant that the case was better heard in Thailand.
- The financial position of the parties
Although Dr Hargood had significant financial means, it would be a far more expensive exercise to conduct the proceedings in Thailand. OHTL did not suggest that litigating in NSW would be a financial hardship for OHTL.
- Juridical disadvantage
The court identified the fact that the proceedings would be conducted in a Thai court in the Thai language where continuous interpretation would be required, as a significant juridical disadvantage to Dr Hargood. By comparison, OHTL was a corporation represented by Australian lawyers. So the conduct of proceedings in English would be a minor juridical disadvantage for OHTL.
The proceedings were therefore allowed to continue in NSW because OHTL had not discharged its onus to demonstrate that the courts of NSW were a clearly inappropriate forum.
A similar instance where the Supreme Court of NSW allowed proceedings to continue is Hall v Hillview Ltd trading as Outrigger Reef Fiji Resort  NSWSC 377 – click here for a case note.
The courts in Australia will usually hear claims made by Australians who are injured overseas on holiday, provided that there is a sufficient connection with Australia when the travel arrangements are booked and there is no exclusive jurisdiction clause in the booking contract.
This case dealt with a Hotel booking, where the exclusive jurisdiction clause was introduced too late – at the check-in - to form part of the booking contract.
Cruise and Tour bookings are different. An exclusive jurisdiction clause (a choice of law clause) forms part of the Terms and Conditions in the Booking Application, and is therefore a term of the booking contract.
Cruise and tour operators who operate overseas will stipulate that the laws and courts of their local jurisdiction are to apply. This raises a high barrier to making claims in Australian courts.