Can you sue a hotel in case of injury? Not an injury that happens in the hotel but en route to the destination.
When Rupa Soni and her daughter Niki took a flight to Maasai Mara five years ago, she did not know that the trip to the world-famous game reserve would end soon after arriving.
She and other guests took a flight from Wilson Airport on April 14, 2017, expecting to enjoy the scenic savannah plains, teeming with wildlife, in a three-day stay at the Maasai Mara.
This was not to be because of an accident that happened at the hotel soon after she and other tourists arrived to be welcomed by a group of Maasai dancers.
They landed safely at Mara Airstrip and were picked up by a waiting van belonging to the Maasai Mara Wilderness Lodge.
The drive to the hotel was safe but tragedy befell her while alighting from the van.
Documents filed in court showed that another guest and her daughter disembarked safely from the tour van.
But when her turn came, Ms Rupa took the steps but missed one and came tumbling down. She broke her knee and the three-day trip was aborted as emergency services were alerted, and she was airlifted to Nairobi for specialised treatment.
She sued the hotel in September 2017 accusing the establishment of negligence. The hotel defended itself saying she was to blame because she was not cautious, as she was wowed by the dancing troupe and missed a step.
Tour vans, unlike ordinary vans, are raised because they operate in the wilderness as a safety mechanism to protect tourists against potential attacks by wild animals.
As such, operators normally carry with them a platform to assist passengers to disembark.
In Ms Soni's case, there was no travel insurance in the deal and she pursued the hotel for the entire amount.
Last month, a Nairobi court awarded her Sh3.8 million for damages, as well as a refund of the Sh65,000 she had paid to the hotel for their stay.
Principal magistrate Sammy Opande faulted the hotel management, saying it owed her the duty of care. The court apportioned the blame on a ratio of 80:20 to the hotel.
In the case, Ms Rupa said the platform provided by the hotel was small and poorly designed.
Surgery was performed on her knee and she was given 12 days’ rest before she resumed her normal duties.
Ms Soni argued she would possibly require a knee replacement in the future and was in constant pain, requiring medication and sleeping pills.
She said the entire expenses of the treatment and airlifting by Amref cost her Sh1.1 million.
In the judgment, Mr Opande said the hotel was at all times under statutory duty to ensure the safety of all passengers on its vehicles belonging to them.
Under Section 3 of the occupier’s Liability Act, there is a duty of care to ensure that a visitor will be safe while using the premises for the purposes for which he or she is invited or permitted by the occupier, the court said.
Mr Opande added that Ms Soni was not a young person who could just leap onto the platform. He awarded her Sh800,000 for general damages, Sh2.9 million for special damages, and a refund of the Sh65,000 plus costs of the case.
The hotel has moved to the High Court and obtained orders, suspending the judgment.
In the appeal documents, the hotel said the magistrate made a mistake in his finding that the management was negligible.
John Smith, a director of the lodge said they provided a disembarking platform which is stable and visible to all passengers when disembarking.
The hotel also provided support staff to assist the elderly and disabled if any, when disembarking from the van.
Mr Smith said the hotel took all reasonable measures necessary to ensure that the platform used to disembark from the van was safe for all its guests and clients.
He said Ms Rupi had to take care and disembark carefully and diligently from the van just like other passengers including her daughter.
Tourists watching game from Tarangire Safari Lodge. FILE PHOTO | POOL
Through lawyer Titus Koceyo, the hotel further argued the magistrate was wrong for apportioning liability in the ratio of 80:20 against the hotel without giving any reason or justification.
“She did not exercise caution when alighting from the motor van since a disembarking platform of steps was provided, which was necessary for all passengers exiting the said motor vehicle and was affixed to the van’s doorstep,” he said.
Justice Christine Meoli on suspending the execution of the magistrate's decision, also directed the hotel to deposit Sh1 million in court, before the case is heard.
Should insurance then cover such travel accidents?
Ideally, travel insurance companies ought to pay for such accidents, but the take-up is still low.
Dennis Karanja of Liason Group said other than personal accident cover, there is also motor vehicle insurance cover, which will indemnify the policyholder.
Mr Karanja explained that the cost of the covers differs depending on the number of days and the age of the policyholder.
A majority of Kenyans only pay for medical expenses during travel, loss of luggage, and delayed flights, and not domestic travel.
They should also insure travellers against an accident that could happen at the travel destination, and against sickness while there.
“A personal accident cover will provide a safety net to a policyholder,” he says.
