Occupier’s Liability (Part 1)

 Note: Issue must be identify occupiers, entrants and defences

 Occupier’s liability could occur when A parked a car at an open space of shopping
mall, after he finished shopping and he went back to his car, the car was hit by a tree,
resulted the car to be damaged, under this situation, there is negligence on the part of
occupier, hence it results to the situation of occupier’s liability.
 Issue: Whether the person is an occupier?
 Definition of Occupier
 Case: Wheat v Lacon & Co Ltd
 Facts: Manager and his wife (Defendants No 1) were in charge of the first floor of
building, and they were receiving paying guests. Meanwhile, defendant no 2 was
responsible for repairs of the building. One of the paying guests decided to descend
the staircase which did not have light bulbs and handrails, resulted the guest to slip
and die.
 Issue: Who is the occupier?
 Defendant no 1 are occupiers despite they did not have control over the whole
building. Since they had control over the first floor in which they received paying
guests, they are considered as an occupier. Defendant no 2 is also an occupier because
he is in charged for repairs works.
 Held: Occupier means that a person who is equipped with the adequate degree of
control over premises, hence such sufficient degree of control renders him to have
duty of care towards anyone who visited his premises under lawful conditions.
 Hence, this means that as long as a person has sufficient degree of control over
premises, he shall be deemed as an occupier.
 Test of Control
 Case: Wheat v Lacon & Co Ltd
 Facts: Manager and his wife (Defendants No 1) were in charge of the first floor of
building, and they were receiving paying guests. Meanwhile, defendant no 2 was
responsible for repairs of the building. One of the paying guests decided to descend
the staircase which did not have light bulbs and handrails, resulted the guest to slip
and die.
 Issue: Who is the occupier?
 Held: Whenever a person is equipped with the adequate degree of control over the
premises, he shall have the knowledge that his omission to discharge his duty of care
will bring harm or injuries to a person who visited his premises under lawful
condition. Such person who comes lawfully to the premises shall be deemed as
“visitor”, hence the occupier has the obligation to exercise reasonable duty of care
upon such “visitor”. However, it shall be noted that it is not necessary that the
occupier must have the entire control over the premises. The occupier also did not
need to possess an exclusive occupation, as long as he is equipped with some degree
of control, it is sufficient. An occupier may also share the degree of control with other
occupiers.
 Hence, the test of control is tested by using the reasonable care test. Moreover, a
person could still be an occupier even though he did not have entire control over the
 whole premises or building. In addition, it could be more than 2 persons to be
occupiers and they could be found liable depending on the test of control.
 Case: Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee
 Facts: Defendant no 1 is a school, while defendant no 2 is local authority. Defendant
no 1 rented dwelling house from defendant no 2 to be used as a hostel. But the
dwelling house did not have safe emergency exit, when fire broke out, several
children died and sustained injuries.
 Issue: Who is the occupier?
 Held: At first, the 2nd defendant was not found liable. But, in appeal, the court held
that both defendants are liable. Since the landlord (Def no 2) has a close proximity
relationship with the tenants (students), hence there is duty imposed upon them to
make sure that the dwelling house are safe and suitable to be stayed by the students,
moreover, they also has the responsibility to ensure that there is absence of any
dangerous defects in the premises.
 Hence, from this case, it can be deduced that even though a person is just a landlord,
he shall be deemed as an occupier.
 Types of Entrants in Malaysia
 Issue: Whether the person is an entrant?
 Entrants are the person who enter the occupier’s property.
 (1) Contractual Entrants
 Occupiers owed highest duty of care towards them.
 Contractual entrants can be derived from the situation when the parties had an
agreement or contract between them.
 A contractual entrant is an individual who enters the premises of the occupier under a
contractual right.
 Contractual entrants can be divided into Main Purpose Entrant and Ancillary Purpose
Entrant.
 (i) Main Purpose Entrant
 Main purpose entrants are individuals who enter the premises of occupier with the
intention of occupying such premises, and they also make payment to enter or stay on
the occupier’s premises.
 Duty of care by the occupiers upon the main purpose entrants are the duty to
reasonably foresee that the visitors to the occupiers’ premises will be under situation
of reasonably safe when they had been given permission or invitation or contractual
agreement by the occupiers to use or stay in the premises.
 E,g, A tenant of a hotel are main purpose entrants since they pay to stay in hotel with
the purpose of occupying the hotel.
 Case: Maclenan v Segar
 Facts: A fire broke out at defendant’s hotel and the plaintiff tried to escape from
second floor, but he sustained injuries since there was no emergency exit.
 Held: The court held that when the occupier had given permission to another
individual in the view that they are allowed to stay or use such premises, such
permission shall be deemed as implied warranty between the occupiers and the other
individual, in the sense that such premises would be reasonably safe for the
individuals.
 Hence, this means it is not necessary that there must be expressed terms from the
occupiers to keep entrants safe, as long as the entrants paid to stay or enter into
premises, there is existence of implied warranty that the occupiers should keep the
entrants reasonably safe.
 (ii) Ancillary Purpose Entrant
 Ancillary Purpose Entrant are individuals who make payment to enter premises but
there is no intention from them to occupy or dwell at such premises.
 E.g. Spectators at a stadium pay to be on the stadium but did not have the intention to
dwell at the stadium.
 Duty of care for ancillary purpose entrant is the same with main purpose entrant in
which the duty of care is to keep the entrants reasonably safe from danger. Hence,
there is also high duty of care owed towards them.
 Case: Hall v Brooklands Auto-Racing Club
 Facts: There is a collision occurred between two cars in a car racing competition,
which resulted the spectators sustained injuries.
 Held: The court held that since the defendant had already took precautions in assuring
that the stand during the car racing competition is free from any reasonable danger,
hence they had already discharged their duty and they should not be liable for
negligence.
 Case: Gillmore v London County Council
 Facts: The plaintiff was injured at training class because the plaintiff slipped due to
the slippery floor in the training class.
 Held: The court held that the defendant was liable because they failed to discharge
their duty in the sense that they failed to take any steps to ensure that their premises
are suitable for training purposes. The plaintiff is considered as ancillary purpose
entrant because the plaintiff paid to be in the training class.
 (2) Invitees
 Issue: Whether the person is an invitee?
 An invitee is an individual who enters occupier’s premises with the consent of the
occupier, there is an existence of common interest between the occupier and the
invitee.
 Example of invitees: Employees at the workplace
 (i) Legally Authorised Entrants
 Legally authorized entrants are persons who enters the occupier’s premises to perform
their statutory duties and they have the statutory right to enter the premises of
occupiers.
 E.g. Policemen and firemen
 There is existence of common interest between the policemen and occupiers in the
sense that the occupier asked the policemen to guard his house. The policemen will
enter the premises of occupiers as a matter of law.
 Case: Shamsuddin v Yap Choh Teh & Anor
 Facts: A policeman sustained injuries at his eyes when he was performing his duties at
a quarry, the injuries he suffered was caused by a splinter from an explosion.
 Held: The court held that the policeman was an invitee, hence the defendant who is
the occupier shall be liable for the injuries suffered by him.
 Duty of care for invitees is slightly lower than duty of care for contractual entrants.
 (2) Business Visitors
 Business visitors are individuals who enter the occupier’s premises for materialistic
purpose and the occupier will gain economic benefits from them due to their presence
at the premises.
 E.g. Customers at a supermarket bring economic advantage to the supermarket owner
(occupier) by buying the groceries.
 Case: Indermaur v Dames
 Facts: The plaintiff fell through a hole at the defendant’s premises when the plaintiff
was repairing the gas equipment at the defendant’s premises.
 Held: The court held that the defendant is liable because the plaintiff is an invitee
since the plaintiff enters the defendant’s premises with the purpose of performing a
contract.
 Case: Takong Tabari v Government of Sarawak & Ors
 Facts: There was an explosion occurred in the Public Bank which caused the plaintiff
to sustain injury.
 Held: The court held that the occupier who is Public Bank is liable because they had
breached the duty of care towards the invitees who is the plaintiff. The plaintiff is
deemed to be invitee because during the occurrence of the incident the plaintiff was
the customer of the Public Bank and the plaintiff brings economic advantage towards
the Public Bank.
 Duty of Invitee to Another Invitee
 An invitee owes duty of care towards another invitee in the sense that he must ensure
that the invitees on the premises will not sustain any injuries, even though such
individual may not be the occupier of the premises.
 Case: Dobb & Co Ltd v Hecla
 Facts: The plaintiff was a workman and was injured by another workman, who was
using scaffolding that is built by a contractor. The contractor failure to remove the
scaffolding even though he was repeatedly told to do so, which resulted injuries to
another independent contractor.
 Held: Damage is reasonably foreseeable hence the contractor is liable even though the
independent contractor was not an occupier, but he is just another invitee.
 Note: If there is question discussing another invitee, do not need to discuss whether
such person is an occupier or not, just need to determine whether he is another invitee
and must put duty of invitee to another invitee.
 Factors that needed to be established to hold an occupier liable for the injuries
suffered by the invitee:
 (a) If the occupiers know or should have knowledge regarding the danger (Occupier’s
knowledge)
 (b) The danger is unusual to the plaintiff in the sense that such unusual danger would
not be normally found in the premises after considering the nature of premises.
(Unusual Danger)
 Note: For invitees, the danger is unusual danger.
 (c) Plaintiff did not have knowledge concerning the danger.
 (d) The occupier failed to fulfill his obligation in the sense that he failed to reasonably
prevent the damage from happening (be it through giving notice, providing warning
lights, guarding or more)
 Note: If there is notice or warning light provided by the occupier, he would not be
held liable.
 Occupier’s Knowledge
 The general rule is that the occupier must know or ought to have the knowledge
concerning the danger as a reasonable man.
 This can be determined through reasonable men’s test, in which the occupier should
ensure that the premises are free from any unusual danger.
 Case: Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors
 Held: The court held that the occupier has the obligation to assure that his premises is
safe for the invitees.
 Case: Hawkins v Coulsdon & Purley UDC
 Facts: One of the steps of a ladder was broken when the plaintiff used the ladder.
 Held: The court held that if the danger is not obvious, the occupier would still have
duty to warn the invitee, however, if the danger is obvious, the occupier did not have
duty to warn the invitee. The defendant is liable because he knows that the ladder is
broken but he did not take any steps to safeguard the invitee from the danger.
 Meaning of Unusual Danger
 Case: London Graving Dock Co v Horton
 Held: An unusual danger is a danger that is uncommon in the eye of a particular
invitee. Unusual danger is measured through the objective test and it depends on the
type of plaintiff, the premise’s circumstances, and the knowledge of the plaintiff.
Hence, unusual danger is a question of fact. Different types of plaintiffs may have
different views on the unusual danger.
 Case: Stockwell v Railway Executive
 Facts: There is a puddle of oil at the railway station.
 Held: The court held that the puddle of oil is deemed to be dangerous for the plaintiff.
 Case: Christmas v General Cleaning Contractors
 Held: The broken windows are not considered as an unusual danger to the plaintiff,
who is a window cleaner, even though he still could managed to seek compensation
from his employer.
 Knowledge of the Plaintiff
 If the plaintiff had the knowledge concerning the danger, such danger will fail to be
an unusual danger.
 Hence, if the plaintiff is fully aware of the existence of the danger, the occupier will
not be held liable.
 Case: London Graving Dock v Horton
 Held: The court held that the occupier was not liable because the plaintiff who is the
welder has the knowledge concerning the danger, hence his claim regarding the
injuries sustained by him failed.
 Note: Whether must fulfill all the factors to establish the occupier’s liability? Since
they are only factors, do not need to establish all of them, but if possible, need to
fulfill majority of the factors, which are three out of the four factors.
 Similarities between a Contractual Entrant and an Invitee
Contractual Entrants Invitees
1. The occupier gives his permission for the contractual entrants and invitees
to be on the premises.
2. The occupier received economic benefit from contractual entrants and
invitees.
 Differences between a Contractual Entrant and an Invitee
Contractual Entrants Invitees
Higher duty of care owed towards the Lower duty of care is owed towards the
contractual entrants. The standard of invitees. The standard of care is the duty
care is to ensure that the premises are to take reasonable care to prevent
reasonably safe from all dangers. unusual danger from happening to
invitees.
There is expressed or implied agreement There is no contractual right between
between the contractual entrants and the the invitee and the occupier to be on the
occupiers to be on the premises, and premises. As an example, a customer
there is also consideration from the who is an invitee did not need to have
entrants. Consideration on part of the contractual right to enter the
entrants can be seen when the entrants supermarket.
made payments to the occupiers to be on There is statutory right between the
the premises. legal invitees and the occupiers to be on
the premises.