Innovative International College Tourism & Hospitality Law in Hajj & Umrah (Dhum) DTT 3253

Download as pdf or txt
Download as pdf or txt
You are on page 1of 7

INNOVATIVE INTERNATIONAL COLLEGE

TOURISM & HOSPITALITY LAW IN HAJJ & UMRAH (DHUM)


DTT 3253
FINAL EXAMINATION MAY 2021

Name: MOHAMMAD ANEEQ ARFA BIN MOHD SHAHRIL


Student ID: 2020.01.209.DHUM (5B)

INSTRUCTIONS:
1. This exam paper is to be completed within 48 hours.
2. Mark for each questions are written within ( ) brackets.
3. Answer ALL questions in the answer sheet.
4. Please write your NAME and STUDENT ID clearly on the cover page of your answer sheet.
5. All materials and papers that are supplies for the examination, including the cover sheet must be
returned to the invigilator along with any materials produced as evidence.
6. Please read the instruction carefully in the question paper before you start.

QUESTION MARK

TOTAL
Answer all Four(4) questions in the answer booklet provided. Each question carries twenty
five(25) marks.

Question 1 (25 marks)

1. What are the elements needed to be proved in order to establish negligence. (4m)
Answers : 1) Duty of care
2) Damage
3) Breach of duty
4) Causation

2. Explain each of the elements in your own words. (12m)


Answers :
1)The first element of determining negligence is whether or not the defendant owed
the plaintiff a legal duty of care.There are situations where a legal duty is created in
the relationship between the plaintiff and the defendant.
2)Damages are the final element of negligence because the plaintiff suffered injury
or loss which a reasonable person in that same situation could expect or
foresee,monetary compensation may be the only form of relief for those
injuries.Damages include medical care,lost wages,emotional turmoil and more.
3)The next element is for the court to determine if the defendant breached of duty
by doing or not doing something that an average person would do if they were in a
similar circumstance.
4)Last element of negligence is causation.Causation requires a plaintiff to show that
the defendant’s breach of duty was the cause of the plaintiff’s injury and
losses.Another thing to consider is whether the defendant could have foreseen that
his or her actions might cause an injury.

3. Describe what happened in the case of Kris Angsana Sdn Bhd v Eu Sim Chuan (2007)
5 MLJ 13. Explain the principle involved in the case. (9m)
Answers :
Conducted piling activities and excavation works on its land in order to build two 20-
storey condominiums. The developer did not take precautionary measure prior to
construction to ensure that the neighbouring bungalow was not affected. The
construction activities caused structural damage to the bungalow.Developer was
liable. The occupants of the bungalow were physical neighbours of the developer.
There was proximity of relationship and it was reasonably foreseeable that the
developer’s activities could cause damage to the bungalow.

Question 2 (25 marks)


Aiman loves to cook for his friends because he used to work as a chef. One day, Aiman
invited Zubair to come to his house as Aiman wanted him to try out his new beef meal
recipe. While preparing, Aiman did not realize that the colour of the beef was rather dull
and it smelled unpleasant. He used the beef to prepare the dishes.

Zubair tried the beef dish. He later suffered from severe food poisoning. The hospital
confirmed that the cause of food poisoning was the beef dish and Zubair had intestinal
complications because of that. Zubair wanted to bring a legal action in court.

Based on the above scenario, answer the following questions.

1. Should Aiman be held responsible for Zubair’s food poisoning? Explain why. (4m)
Answers : Yes Aiman should be held responsible for Zubair's foof poisoning.This is
because Aiman needs to carefully check that the cooked raw materials must be fresh
before cooking. As a cook, Aiman is also responsible professional in keeping the
material in good condition and if the material is not fresh he should complain to buy
a new one to Zubair.As a cook also Aiman should follow all health protocols and be
efficient in the raw materials chapter.As a cook as well, Aiman needs to know more
about the risks of being a cook and the challenges that need to be faced as a cook to
make himself more efficient and agile in this situation.

2. Explain the concept of causation with one relevant case law. (6m)
Answers : Causation is the causal relationship between the defendant's conduct and
end result.In other words,causation provides a means of connecting conduct with a
resulting effect,typically an injury.In criminal law,it is defined as the actus reus an
action from which the specific injury or other effect arose and is combined with
mens rea a state of mind to comprise the elements of guilt.Causation only applies
where a result has been achieved and therefore is immaterial with regard to
inchoate offenses.Example case Victim's contribution R v Dear (1996) CLR
595.Believing that the victim had sexually interfered with his 12-year-old
daughter,the defendant attacked the victim with a Stanley knife.The defendant
argued that the chain of causation had been broken because, two days later,the
victim had committed suicide either by reopening his wounds or because he had
failed to take steps to staunch the blood flow after the wounds had reopened
spontaneously.

3. Intervening act is something that is external and not related to the defendant’s
breach of duty and the plaintiff’s damage. Give three(3) scenario of a possible
intervening act in the case above. Refer to one relevant case law (9m)
Answers :
1)Lawyer
2)Family
3)Police
People fall ill from eating contaminated products all the time. However, it generally
takes dozens of people to get seriously ill before the public hears about food
poisoning cases. There have been a number of food poisoning cases over the past
decade including:
i)2015 – Chipotle Mexican Grill – From October to November, at least 45 people
contracted E.Coli across a number of states, including California. At least 16 victims
were hospitalized.
ii)2015 – Cucumbers – Over 300 people were sickened by Salmonella-contaminated
cucumbers, resulting in at least 2 deaths.
iii)2014 – Cheese – At least 7 children were infected with listeria linked to cheese,
including one infant death in California.
iv)2013 – Chicken Salad – At least 26 people in 3 states were infected with E.coli
possibly caused by eating prepared chicken salad.
v)2013 – Foster Farms Chickens – Over 600 people may have been infected with
Salmonella related to chicken products.
vi)2012 – Peanut Butter – More than 40 people in 20 states were sickened by
Salmonella-contaminated peanut butter products.
vii)2011 – Ground Turkey – A least 76 people in multiple states became ill related to
fresh and frozen ground turkey, with one person in California dying from the
infection.
viii)2009 – Peanut Butter – More than 700 people got sick and 9 died from
Salmonella-tainted peanut butter.

4. The damage suffered by Zubair is foreseeable and not remote. Do you agree with the
statement ? Explain your answer with one relevant case law. (6m)
Answers : I no agree.Because he was not thorough and efficient in inspecting the
raw materials before cooking as well as not following the raw material hygiene
procedures.For example case Barnett v Chelsea and Kensington Management
Committee [1956] AC 613.The claimant presented himself at a hospital emergency
department whilst suffering from stomach pain and vomiting. He was seen by a
nurse, who spoke to a doctor, who told her to send the claimant home and for him
to call his GP in the morning. Five hours later the claimant died from arsenic
poisoning. However, it was established that had the claimant been seen by a doctor
he still would have died from the poisoning - there was nothing that the defendant
could have done to save him.

Question 3 (25 marks)

1. What is the difference between an invitee and a licensee in occupiers liability ? (6m)
Answers :
Examples of invitees include:
i)Shoppers at a grocery store.
ii)Contractors performing work on a house.
iii)A delivery person.

Examples of licensees include:


i)Someone who came into a grocery store to use the restroom.
ii)A guest visiting her friend’s house.
iii)A guest at a party.

2. Give two(2) examples of a private nuisance (4m)


Answers :
i)Physical Damage
ii)Amenity Nuisance

3. Explain the principle of ‘vicarious liability’ in the context of Hajj and Umrah services?
(5m)
Answers :
i) In providing Hajj services, Lembaga Tabung Haji (TH) always strives to provide
satisfaction to pilgrims and help them towards achieving Hajj Mabrur. TH also gives
them the option to go on pilgrimage in a way that they feel comfortable and
according to their respective financial capabilities.
ii)Sections 27 to 33 of Chapter V, Act 535 of the Tabung Haji Act 1995, are provisions
on PJH. It refers to a valid license issued by TH to the Bumiputra Muslim Tourism
Agency to offer and manage hajj package services by fulfilling the license application
conditions set by TH.
iii)Hajj package services are offered by travel agencies that have been granted a
license by TH, namely the Hajj Organizer License (PJH).
iv)PJH also refers to the party licensed to operate providing Hajj Package Services
that have added value for several aspects of services such as accommodation, meals,
staff services, umrah management and pilgrimage management under TH's
supervision in accordance with the provisions of Act 535 of the Hajj Fund Act 1995 .
v)TH received license applications from two categories of travel agencies, namely
from PJH (Travel agencies experienced in handling private pilgrims in the previous
hajj season) and the New Application Travel Agency (APPB).

4. What is the difference between contributory negligence and volenti non fit injuria.
Refer to the relevant case(s) if any. (10m)
Answers :
Contributory Negligence
i)As provided in s12 of the Civil Law Act 1956 in the case of contributory negligence.
ii)Damage recovery by P are tk be reduced to such extent as the court thinks just.
iii)The matter is thus one for the discretion of the court.
iv)The court generally consider the extent of P lack of care for his own safety as a
major factor.
v)In apportioning the damage, the court is directed to do what is just and equitable.

Volenti Non Fit Injuria


i)This is Latin for to a willing person, injury is not done.
ii)In other word, when a person consents to the infliction of some harm upon
himself, it does not constitute a legal injury and therefore is not actionable.
iii) To use successful volenti the defendant must prove that the claimant had
knowledge of the risk.
iv)Willingly consented to accept that risk.
v)Volenti is complete defence that will mean there is no liability for injury or loss.

Question 4 (25 marks)

1. Ahmad was booking for his DIY (Do It Yourself) trip to perform umrah, which was
scheduled three months from the day of booking. He was required to pay RM
1500 as deposit from the total fare of RM 3500 to secure his booking.
a. Is this in line with the Standard Terms and Condition? Give reason to your
answer. (3m)
Yes this is line with standard term and condition.Because to book an
umrah package slot so that it is not taken by others.Next,to ensure the
process of the initial deposit money to make arrangements for the
pilgrim's passport, to list the name in the list of prospective umrah
pilgrims and the payment of the initial deposit is also to make it easier for
the umrah company to ensure the date of the umrah and the company
will request the date from the congregation if the date is full.

b. According to the Standard Terms and Condition, when is the latest he


should pay the balance of the travel fare? (3m)
Answers : 40 days before leaving for Umrah.This is to ensure that the slot
for the congregation is already special to the congregation and the slot
already has a name in the list of umrah pilgrims.

2. State and explain what are the liabilities of a travel agent of a Hajj and Umrah
Travel & Tours company. (15m)
Answers :
1.Manage congregation documents.
2.Management congregation or client.
3.Management of pilgrims at the airport.
4.Management of Umrah and Pilgrimage.
5.Management of congregational vehicles.
Hajj and Umrah agents are responsible for maintaining the safety of the pilgrims
before and after going to perform Hajj and Umrah.Therefore, the task as an
agent for Hajj and Umrah is very heavy because it keeps the pilgrims always in
good condition. Hajj and Umrah agents are also responsible for any injuries to
pilgrims.Hajj and Umrah agents can also be sued and punished if any problems
occur due to the negligence of the agent. But if due to the accident, the hajj and
umrah company and the claim will be given to the congregation.

3. State the grounds for suspension or revocation of license of a tourist guide. (4m)
Answers :
i) Provide information, facts, false statements during the license application.
ii)Failed to attend or stumbled in a course or advanced training or competency
test.
iii)Failing to wear the Authorization Card while on duty or allowing others to
wear the card.
iv)Violate the license conditions, code of ethics and provisions under AIP 1992
and its regulations.

You might also like