Facts of the case

  • Klaus Mittelbachert, a German national born, was a co-pilot in Lufthansa. He landed at Delhi and was scheduled to continue the flight to Frankfurt. For the intervening time, he checked into and stayed at the Hotel Oberoi Intercontinental.
  • The Hotel had a swimming pool equipped with a diving board. The plaintiff (Klaus) visited the swimming pool, while diving the plaintiff met with an accident. He had hit his head on the bottom of the swimming pool.
  • He was taken out bleeding from right ear and appearing to have paralysed in the arms and the legs. He was taken to Hospital, situated nearby, where he remained admitted and under treatment until he was flown to Germany under medical escort.
  • He was admitted for treatment at the Orthopaedic Clinic and Polyclinic of the University of Heidelberg. His treatment continued. Further treatment continued but the condition of the plaintiff did not improve. He was shifted back to his residence where his treatment continued.
  • On 11.8.75, the suit was filed for recovery of an amount of Rs.50 lacs by way of damages with interest calculated @ 12% from the date of the filing of the suit until payment and costs.

Plaintiff’s Cause

According to the plaintiff, the accident was caused by what in the circumstances amounted to a trap. The diving board placed at the swimming pool suggested a proper depth of water into which a swimmer could dive. The defendant hotel owed the plaintiff a duty to take care and ensure his safety. Having failed therein the defendants are guilty of negligence and are, therefore, liable to compensate the plaintiff for the consequences flowing from the accident.

Defendant’s Reply

It was submitted on behalf of defendant that there was no negligence on the part of the hotel; that it is the plaintiff who was negligent; and that, in any case, the plaintiff was equally negligent and, under the doctrine of contributory negligence the plaintiff is entitled to no damages at all.

On this, the plaintiff submitted that he had gone to the swimming pool at 2.30 pm. He swum twice or thrice, every time taking an hour’s rest in between. At about 6 pm he wanted to have a final swim with a dive from the three-meter-high diving board. On the diving board he started by taking two-three steps and made a dive with his head forward and the arms stretched and closed over the head. He sustained injury in the first dive itself. During cross-examination he was confronted with the bill of the hotel and he admitted having ordered for the beer. However, he stated that he did not take the beer as he had intended to take it after the swim and before going for the dinner.

Court’s Analysis

On drink

The plaintiff cannot be said to have been drunk-much less so drunk as not to be capable of taking care of himself. The employees of the Hotel holding such important assignments as superintendent or manager of the health club or lobby manager and the security guards who were posted by the side of the swimming pool and

whose duty was to watch those guests who were swimming or diving in the swimming pool were obliged to prevent the plaintiff, nay to exclude him from the swimming pool, once they had noticed that the plaintiff was drunk or exhausted or was swimming or diving in the swimming pool in a manner in which he was not expected to do. It is yet another factor pointing to their negligence.

Degree of care

But the next question is, what should be the degree of care to make anyone liable for his/her negligence?

Degree of care is not a phrase with static connotation. Its meaning would depend on given fact situation- the person who owes a duty to take care, the person whose care is to be taken and the subject matter by reference to which degree of care is to be determined. A illustration will be helpful to understand the matter.

  • One who purchases a glass of water from a trolley in the street for 10 or 25 paise is entitled to safe drinking water which should not ordinarily infect him. But if person purchases a mineral water bottle for Rs. 10/ or 15.00 then he can justifiably demand a higher degree of purity. The manufacturer of water bottle cannot be heard to say so long as he has made it equivalent to the trolley man’s water he has done his duty and he needs to do nothing more. Such a proposition would be untenable both in law and equity.

A person received in a hotel as a guest enjoys an implied assurance from the hotel that the proprietor by himself and through his servants, agents would take proper care of the safety of the customer. Not only the building structure but the services offered thereat have to be safe and immune from any danger inherent or otherwise. A hotel owner holds himself out as willing and also as capable to accommodate and entertain the guests. The quality and safety of the services offered increases with the quantum of the price paid for being guest at the hotel. Higher the charges, higher the degree to take care.

In the absence of a specific warning to the contrary, the swimming pool is an invitation not only to those who have learnt the art of swimming but also to amateurs who may like to take a plunge into water just for the pleasure of that. Availability of a diving board over the swimming pool is an invitation to the guests to take dives into the swimming pool with an implied warranty that the height and protrusion of the diving board or the spring board (as the case may be ) are safe; and that the depth of water at the plummet point has been so maintained that any one taking a plunge into the water is not likely to suffer an injury.

The variation in the degree of care

The variation in the degree of care making it heavier co-relating the same with the charges fixed and realised in consideration of offering a service assumes significance in law for two purposes,

Firstly, it has a bearing on the degree of care expected, either express or implied.

Secondly, it has a bearing on the amount of compensation that would become payable in the event of failure to discharge the expected degree of care. Higher the degree of care, higher the quantum of compensation, both flowing from rise in charges realised for rendering the services.

To illustrate, on breach of duty to take care, the five-star hotel would not be heard offering the same quantum of compensation as would have been offered by a charitable organisation running a Dharamshala where a guest was staying on payment of nominal charges.

The design of the swimming pool

After referring the architectural standards for swimming pool building and expert’s testimony, the court arrived at a finding that the design of the swimming pool was defective, the conclusion which necessarily emerged was that the swimming pool of the defendant’s hotel was a trap. It was a `hazardous premises’ in the sense in which the term is used in the law of torts. The liability of the defendants for adverse consequences flowing from the use of the swimming pool- an hazardous premises – would be absolute.

Reiterating the view taken in Oleum Gas Leak case their Lordships held in Indian Council for Environ-Legal Action vs Union of India,

“Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity.”

A five-star hotel charging a high or fancy price from its guests owes a high degree of care to its guests as regards quality and safety of its structure and services it offers and makes available. Any latent defect in its structure or service, which is hazardous to guests, would attract strict liability to compensate for consequences flowing from its breach of duty to take care.

The five-star price tag hanging on its service pack attracts and casts an obligation to pay exemplary damages if an occasion may arise for the purpose. A five start hotel cannot be heard to say that its structure and services satisfied the standards of safety of the time when it was built or introduced. It has to update itself with the latest and advanced standard of safety.

The decision

The court decided that,

  • the injuries caused to the plaintiff in the accident, are attributable to the negligence of defendants;
  • the swimming pool was a trap on account of its having a latent hazard in structure and designing- providing not a safe depth of water at the plummet point;
  • there was no negligence, contributory negligence or inaction on the part of the plaintiff, and the defendant are bound to indemnify the plaintiff for the injuries suffered by him.


Klaus Mittelbachert vs East India Hotels Ltd.: 1999 ACJ 287