OCCUPIERS LIABILITY

QUESTION

A goes to view a show house at a

construction site
A is injured due to some live wires
Who does A sue?
a) The owner of the land
b) The developer
c) the contractor
d) the worker who left the wire
ANSWER

A would bring action against the

Occupier of that place.

This means the Occupier will be

liableif he has been negligent in
keeping the place safe from harm
Therefore

Occupiers Liability is
referring to the Liability in
negligence
It is merely an extension of
negligence
Negligence suit
 Occupiers Liability arises in a
situation where the premises are not
safe as it should be and this
defective state, which includes
activities carried out on the
premises, causes injury or damage
to the plaintiff.
 The difference between an
ordinary negligence claim and a
negligent claim for occupiers
liability rests on the standard of
care required of the defendant
occupier
Definition of Occupier

An occupier is person who has.

Immediate supervision and control of

the premises &

The power of permitting or prohibiting

entry
(Wheat v Lacon)
The Premises

Buildings
Vehicles
Parts of a building walls, stairs,
grandstand
Ladders
Any place that a person may have
control
Wheat v. Lacon

Defendants
public house
Run by
manager
Wheat v Lacon

D owned public house

Manager running the public house
Licence given to Manager and wife to
use the first floor for own personal use
BUT the D reserved the right to conduct
repair
The Manager recieved paying guest with
permission of the D
Ctd

Mr and Mrs Wheat were guests at the

private dwelling
One night Mr Wheat fell down at the
staircase and died;
1. the hand rail of the staircase was too
short
2. someone had taken out the bulb at the
top of the staircase.
Ctd

Who is the occupier?

D (owner of the public house) or the
Manager ???
HOL : Both are the occupiers as both had
some degree of control over the
premises. (not necessarily ownership)
Liability? where they liable or not?
Read the case (MUST)
Question ?

If you were the occupier, would you

make sure that the place is safe?
For whose use?

Entrants those who enter.

Who are these entrants?

Entrants (in Malaysia)

Contractual Entrants (Lodgers in

Hotel)

Invitees (common business interest)

Licensees (Gratuitous permission)

Trespassers
Why differentiate type of
entrants?

Because the Standard of

Care owed by the
Occupiers to all these
entrants are of different
degrees.
1. Contractual Entrants
A person who enters a premises pursuant to a
contractual right (pay to stay/ use facilites)

- 1. Main purpose entrants (dwell) eg? hotel

- 2. Ancillary purpose entrants (use facilities) eg?
Cinema, sports spectators, entertainment parks.

The Occupiers duty towards contractual entrants

is to ensure that the premises is safe and adequate
for the purpose contracted out

DOC and SOC highest among all entrants

Cases

Maclenan v Segar
P was injured while trying to
escape from the 2nd floor of the
Ds hotel due to a fire breakout
Court found the D liable for not
preparing an emergency exit
(main purpose entrant)
 Gillmore v London County
Council
P fell during an exercise class
because the floor was slippery.
She successfully claimed against
the D
(Ancillary Purpose Entrant)
2. Invitees

Invitee is a person who enters

the premises with the
permission or authority of the
occupier
usually for common interest
between the occupier and
invitee
2 TYPES OF INVITEES

INVITEES

legally
business visitors
authorised
entrants
Invitee ctd

1. Legally authorised entrants

- persons who enter the premises on the
authority of the law
- eg: police, firemen, meter readers,
health inspectors
Invitee ctd

2. Business visitors
- persons who enter the premises for
materialistic reasons / economic or
commercial advantage with whom the
occupier has mutual business interest.
- eg: Supermarket customers, hotel
guests, motorist at petrol stations, bank
customers, even employees at work.
 Occupiers duty towards the
invitee is to take reasonable
care to prevent damage from
unusual danger (including
concealed danger / traps) which
he knows or ought to have
known
Indermaur v Dames
 Unusual danger depends on the type of
plaintiff, the circumstances surrounding
the premises and the plaintiffs knowledge
Indermaur v Dames (1866)

- P, a gas-fitter, whilst testing certain gas-fitting

at Ds factory, fell through an unfenced opening
in one of the upper floors
Held: D (factory owner) liable because this was
an unusual danger. Court established the
following rule:
With respect to an invitee the occupier shall
take reasonable care to prevent damage from
unusual danger of which he knows or ought to
know and of which the entrant does not know.
Ctd

An occupier will be liable to an invitee

who suffers injury if;
1. the Occupier knows or ought to have
known of the danger
2. the danger is unusual to the ptcl P
3. the danger is not known to the P
4. the occupier has failed to reasonably
avoid the damage either thru notice,
warning lights, guarding etc
Cases

Lee Lau & Sons Realty Sdn Bhd v Tan Yah

P (invitees) were workers. 1 sustained
injury and 1 died due to the nature of the
job that was dangerous.
But the danger was not considered unusual
as the workers knew about it.
Using forklift at work was not considered as
unusual risk
It was a foreseaable danger that the P could
foresee D not liable
 Lau Tin Sye v Yusuf b Muhammad
P (invitee) using Ds tractor
P stepped off the tractor while the
rotating blades were still rotating
D not liable as there was no dangerous
condition (unusual danger) on the land
 Takong Tabari v. Government of
Sarawak
P invitees to a Bank
1 injured and 1 died when there was
an explosion due to a gas leak
All 4 conditions in Indermaurs case
satisfied
1st and 4th , Government of Sarawak
and Public Bank
Ctd

Government of Sarawak 90% liability

1. they were responsible for not disconnecting
the supply of gas to those who did not
subscribe to it
2. they did not check for leakage b4 gas
meters were installed
Public Bank 10 % liability
Thru its bank employees who did not take
steps after becoming aware of unfamiliar smell
in the premises.
 ???

In court;
P - will argue that the danger is unusual
D will argue that the danger was usual

In a supermarket?
What are usual / foreseeable dangers
what is an unusual danger
Will defer from place to place
3. Licensees

Person who enters premises with

gratuitous permission, express or
implied.

No special interest with the occupier

(unlike contractual entrant and invitees)
 Duty of occupier towards licensee is
not to create or allow a trap or
concealed danger to exist upon the
premises, which is not apparent to the
entrants but known or ought to be
known to the occupier
3 types of licensees

LICENSEES

ENTRANT ENTRANT BY
SOCIAL
AS OF IMPLIED
VISITOR
RIGHT PERMISSION
1. Entrant as of right

Those entering public park, public toilet, public

library, bandaraya swimming pool etc.

Licensee cannot assume that the premises is

free from danger.

At the same time, the occupier must take

reasonable steps to maintain the premises to
avoid danger. Cannot totally neglect the
premises.
 2. Social visitor
A guest, visitor to a factory
Coming onto premises with permission or
invitation
Yeap Cheng Hock v. Kajimei Taisei

Datuk Bandar Dewan Bandaraya v. Ong

Kok Peng
 Yeap Cheng Hock v Kajimei Taisei
P was geologist
Made a visit to a mine under construction by
the D for his own purposes
Train loader began to operate without any
warning. It came towards him and jammed his
leg against the rock
Injured and his leg amputated
D liable because concealed danger ought to be
made known to the P
 Dato BandarDewan Bandaraya v. Ong
Kok Peng
P (visitor to flats-licensee) badly injured
when he fell down shaft of a lift
Lift door partly open
Area poorly lit
No warning sign, guard / barricade
indicating lift out of order
There existed a trap / concealed danger
 High and Supreme Court held in favour
of P.
Held : the licensee must take the
premises as he finds it, however there is
a duty to the occupier not to expose them
to trap/concealed danger - the features
were classic of the appearance of safety
under circumstances cloaking a reality of
danger
3. Entrant by implied
permission

Implied permission is a question of fact

as to whether the occupier gave
permission.
Onus lies on the person who claims the
permission existed
Example, a person using a path through
the occupiers land without being
restricted (implied permission)
Lowery v Walker (1911) A.C. 10
 Lowery v Walker
Public used a short cut through the
farmers land for a long time 35 years
Farmer never took legal action, tho he
sometimes interfered (milk customers)
One day Farmers horse mauled the P
Held: Farmer liable as the P was a
licensee (by implied permission) and not
trespasser
4. Trespasser

A trespasser enters premises without

express or implied permission
Ex :
Thief
Wandering child
Person who lost his way
Legal entrant who goes into a restricted area
Someone staying beyond his time
4. Duty to trespasser

Robert Addie v. Dumbrek

British Railway Board v Herington

LLN Malaysia v Ramakrishnan (1982)

Federal Court

Metroplex v. Mohd Mastana

 Robert Addie v. Dumbrek (1929)
Initially the occupier did not owe duty of
care to a trespasser because he entered
without permission
 British Railway Board v Herington (1972)
An electric Railway Track open to public
11 year old boy injured when he went
thru a gap in the fence and stepped on
the electric tracks
HOL overruled Robert Addie
Held : Df Liable - the occupier must take
reasonable steps of common humanity
and common sense to avoid danger
Held : Df liable
"There is no duty on an occupier to ensure that no
trespasser enters his land, nor to make his land fit for
trespassers to trespass in, nor to survey his land to
discover the existence of dangers of which he is not
aware, since the trespasser trespasses at his peril; but,
while the occupier is not under the same duty of care
which he owes to a visitor, he owes the trespasser a
duty to take such steps as common sense or common
humanity would dictate to exclude or warn or
otherwise, within reasonable and practicable limits,
reduce or avert danger."
 10 year old boy climbed a H Pole erected
by the Appl.
- to release a bird trapped in the wire.
He was electrocuted and thrown 7 feet to
the ground severe injuries
Held ; following British Railway Board
Occupier had duty based on Humanity,
knowledge of the potential danger and
financial standing
 The pole was adjoining a public footpath of a
kampung.
There was no anti climbing devise, warning
sign, barbed wire despite the potential danger
Foreseeable to the Appl that the risk was high,
as the pole was adjoining the footpath
Trespasser was a Child higher duty
Appl liable
 Held:
That occupier must either take measures
to prevent trespassers from coming in /
prevent danger if their entrance is
foreseeable
Therefore;

Duty of occupier to trespasser

Take sufficient and reasonable

measures to prevent entry

Warnings, fence, guard

Especially if entry is foreseeable
LIABILITY TO CHILDREN
2 things to remember;
Allurement vs. parental
control
1. Children are subject to allurement and are
less careful than adults. Occupier ought to
know this. What is apparent to an adult is not
apparent to a child.
2. However, childrens safety lies with parents
the occupier has a right to question this esp.
if he has taken reasonable or adequate
precaution
Children entrants

If the entrant is a child, duty on the

occupier is higher as a child cannot be
expected to be aware of the dangers that
are obvious to adults.
Children entrants

3 kinds,
1. lawful entrants (Glasgow Corp)
(contractual, invitees, licensees)
2. trespassers - LLN Malaysia,
- Sinuri bin Tubar

3. very young children Phipps v

Rochester Corp
Children lawful entrants

Glasgow Corp v Taylor (licensee)

7 year old boy died from eating poisonous
berries that he had picked from a shrub in a
public garden under control of the Corp.
Corp should have reasonably foreseen that
these berries would be an allurement to
children
Should have fenced off the area / warning
HOL held : Corp liable
 Latham v Johnson
A child licensee was injured while playing on a
heap of stones.
COA held that the child had no remedy as
depositing stones on land was a normal use of
the land it was not a trap
A trap involves the idea of concealment or
surprise, of an appearance of safety under
circumstances cloaking a reality of danger
Children - Trespasser

If the occupier places something on his

land which is dangerous and an
allurement to a child, he is inviting the
children to meddle with the dangerous
thing and it follows that a duty MUST be
imposed on him
 In LLN Malaysia,
D Occupiers were liable to the child
trespasser coz of the element of
allurement to climb the H Pole
D ought to have known that a child might
climb the pole and breached the duty by
not putting up warning signs or anti
climbing devices
 Sinuri bin Tubar v Syarikat East Johor
Saw Mills
Is a bathroom with water facilities to be
considered an allurement
- for a child from a nearby village which
had no piped water ?
 A boy 11 years, went through the swamp
and thru the fence to get to the bathroom
Coz the main entrance had a guard,
poster in malay and english prohibiting
entry
On the way back, his hand was trapped
under logs and had to be amputated
Is the D liable?
 Court held: D not liable.
The D did not know about the method of entry
from the other side through the swamp.
Precautions taken by D;
1. guard
2. posters prohibiting entry in malay and
english
3. erected a fence separating the saw mill from
the adjoining land
Tuto : critical analysis of this case
Very Young Children

Usually the Occupier not liable because

the burden of looking after very young
children lie with the parents.
Parents cannot be expected to shift the
burden to occupier
 Phipps v Rochester Corporation
Pf, 5 years old, went with 7 year old
sister - walked across a large open space
that the D was developing
The D had dug a long deep trench the
danger was obvious to adults but not
children
Pf fell in and broke his leg.
 Court held that there was no breach of
duty as it was right for the D to assume
that prudent or reasonable parents would
not allow their children to venture into
open spaces without exercising control or
ensuring that the place is safe.
 "But the responsibility for the safety of little children
must rest primarily upon the parents; it is their duty to
see that such children are not allowed to wander about
by themselves, or at least to satisfy themselves that the
places to which they do allow their children to go
unaccompanied, are safe for them to go to.
It would not be socially desirable if parents were, as a
matter of course, able to shift the burden of looking
after their children from their own shoulders to those of
persons who happen to have accessible bits of land.
What is your opinion of
this common law
approach to O.L.
Read :
See Toh Siew Kee v Ho Ah Lam
Ferrocement (Pte) Ltd 3 S.L.R (C.A)