Occupiers' Liability - For Revision Purpose Only

Bachelor of Legal Studies (Hons) 19/08/2013
azrin.hafiz 1
OCCUPIERS’ LIABILITY
LAW 498 – Law of Torts II
prepared by: azrin hafiz / BLS (Hons) 1
What is occupiers’ liability?
• A liability of an occupier to entrant
who suffered injury on his premises
Who is an ‘occupier’?
Per Lord Denning in
Wheat v Lacon & Co Ltd:
‘a person who has sufficient degree of control
over premises’
also known as occupational control test
‘two or more may be occupier’
In China Insurance Co Ltd v Woh Hup (Pte)
Ltd,
held: the contractor of a construction site
was an occupier of the premises
‘occupier need not have exclusive occupation’
In Lembaga Kemajuan Tanah Persekutuan v
Mariam,
h: the appellant did not cease to be occupier as
the existence of kongsi-houses were for the
common benefit of the appellant, contractors
and labourers.
In Sri Inai (Pulau Pinang) Sdn Bhd v Yong
Yit Swee,
h1: a person with sufficient degree of control
over the premises, is deemed to be occupier
and may be sued for any injuries sustained
on the premises.
h2: MPPP, as a landlord of the premise stands
in close proximity to the entrants of the
tenants and have duty to ensure the
premises let out are safe and suitable for
the purposes for which they are let out.

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What is premise?
In Lau Tin Sye v Yusuf bin Muhammad,
defines premise as
‘all forms of buildings, land spaces, vehicles
to carry persons including tractors’;
and structures,
e.g scaffolding, ladders, walls, pylons,
grandstand.
Types of entrants
Four types of entrants with descending degree of duty of
care are listed down in case Datuk Bandar DBKL v Ong
Kok Peng & Anor:
Contractual entrants;
Invitees;
Licensees; and
Trespassers.
(i) Contractual Entrant
Is a person who enters by virtue of contract;
and pay to utilise the premise.
prepared by: azrin hafiz / BLS (Hons)
2 types of C.E.
Main Purpose Entrant:
person who paid to be on premises,
and for purpose of occupying
Ancillary Purpose Entrant:
person who paid to be on
premises for a primary purpose
other than personal dwelling
9
D.o.C: C.E.
Per McCardie J in MacLenan v Segar:
‘ it has implied warranty that the occupier must
foresee the guest will be reasonably safe in
using the premises which he is contracted’
‘however, occupier cannot be held liable for
defects to the construction/ alteration/ repair/
maintenance that cannot be reasonably
discovered’
(ii) Invitee
Is a person who enters on authority of
occupier; or on business of interest.
2 categories of Invitee
Legally authorised:
A person who enters the premises on
the authority of law e.g police,
meter-reader, health inspector etc
Business visitor/associate:
A person who enters into
premises and bring economic
advantages to the occupier.
11
In Shamsuddin v Yap Choh Teh,
f: due to emergency 1969, the use of
explosive must be monitored by a police.
Plf, a police was on duty at the quarry was
injured when a splinter from explosion hits
his eye.
h: the plf as an invitee was owed duty of care
by df to ensure that he would not be injured
by any negligent during explosion.

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D.o.C: Invitees
Occupier owes duty to take reasonable care to
prevent injury from unusual danger of which
he knows or ought to know and the invitees do
not know
In London Graving Dock Co v Horton,
unusual danger is defined as danger which is
not common for the purposes of the particular
invitees.
prepared by: azrin hafiz / BLS (Hons) 13 prepared by: azrin hafiz / BLS (Hons) 14
Elements to be satisfied* by
occupier towards invitee
Occupier is knowing or ought to know;
Danger is unusual;
Danger is not known to invitee; and
Occupier fails to take reasonable precaution to avoid harm (e.g
make announcement)
*can be applied as held of judgement
In Takong Tabari v Government of Sarawak,
f: plf who was on df Public Bank suffered
injury due to explosion and fire from gas
leak of corroded gas pipe in premises. Gas
pipe is maintained by PWD. Gas is
supplied by df.
h: Public Bank as an occupier is knowing or
ought to know that the danger is unusual
and not known to plaintiff, but it fails to
take reasonable precaution to avoid harm.
(iii) Licensee
Is a person who enters on premises with
occupier’s gratuitous permission
3 categories of Licensees
Entrant by implied
permission:
Person who enters into
premises in
circumstances where
the Court implies a
license
Social visitors:
Person who enters
into private premises
with the permission
of the ‘o’ or by
invitation
Entrant as of right:
Person who has
right to enter into
premises that are
publicly open
16
D.o.C: Licensees
A licensee must take the premises as he finds
them, subject to the occupier’s duty to warn
concealed dangers, not to set traps and not to
injure the licensee.
In Robert Addie v Dumbreck, it was held that,
occupier must not allowed concealed dangers to
exist on premises, which not known by visitor, but
known or ought to be known by occupier
In Latham v Johnson, concealed danger is
defined as hidden and having element of
surprise and it is suffice if the licensee is not
aware of and could not expected to be aware
of.
If the licensee has been reasonably
warned/notified of the danger, the danger is
ceased to be concealed danger and occupier
owed him no duty of care – as stated in Yeap
Cheng Hock v Kajima-Taisei Joint Venture

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Children Licensees
The reasonable parents will not allow their children to
be sent into danger w/o protection.
Primary responsibility for safety of the children
remains with parents.
In Phipps v Rochester Corp, it was held that, df owed
no duty as it has right to assume that a prudent and
reasonable parents/guardian would not allow their
children to venture into open space w/o any control or
w/o ensuring the place was safe.
(iv) Trespasser
Is a person who enters premises without any
express/implied permission of the occupier.
Examples
of
trespasser
Wandering
children
Thief
A person
who lost his
way
etc
D.o.C: Trespassers
Must take reasonable precautions to avoid
damages.
In British Railways Board v Herrington, it
was held that, the occupier must take
reasonable steps of common humanity and
common sense to avoid dangers; or to give
warnings to people who might be on his
premises.
Children Trespassers
The occupier has a duty not to have on his land
objects that are dangerous but are also allurement
or invitation to them
In Lembaga Letrik Negara v Ramakrishnan,
appl was held liable as they had erected,
maintained and controlled a highly dangerous
pole which easily reached by children and failed
to put up warning signs and adequate anti-
climbing devices.
Summary
TC I L
Degree of
Duty of Care
C.E.
I
L
T
MacLenan v Segar :
reasonably safe for contracted
purpose
Takong Tabari v Govt of
Sarawak: prevent injury
from unusual danger
Robert Addie v
Dumbreck: warn any
concealed danger
British Railways Board v
Herrington: reasonable
precaution based on
common humanity
and common sense
23
Thank you
reference:
Law of Torts in Malaysia, 2nd Ed.
Sweet & Maxwell Asia
by Norchaya Talib

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