Professional Documents
Culture Documents
Definition
It concerns the liability of an occupier to persons who are injured on his premises.
Test of control
- The concept of an occupier relates to the control exercised by the person over the
premise.
- Control: When a person has the right to allow people in and restrict people
from leaving.
- Once it is established that a person has sufficient control over the premise, he
is deemed to be the occupier.
- Wheat v Lacon: The court held that although a license to use the first floor was given
to the manager and his wife, the defendant had equal and sufficient control over the
private premise on the first floor together with the manager, thus making both parties
occupiers, and therefore, jointly liable for the death of the plaintiff.
Entrants
According to Peh Swee Chin SCJ in Datuk Bandar, Dewan Bandaraya Kuala Lumpur v Ong Kok
Peng & Anor, there are four types of entrants, each with a duty of care owed:
1. Contractual entrants
- Arises from an agreement or contract between the parties and is based on
contractual rights.
- The highest duty of care is owed to contractual entrants.
2. Invitees
- A person who enters the premises of the occupier with his consent in the
pursuit of a common interest with the occupier.
- There are two types of invitees:
- Legally authorized entrant
- A person who enters the premise as a matter of law (where
statutes allow them to enter)
- E.g: Police, fire-fighters, health inspectors.
- Indermaur v Dames: The court held the defendant liable for the injury
suffered by the plaintiff from falling through a hole in the floor as it was
an unusual danger which was known to the defendant.
- Takong Tabari v Government of Sarawak & Ors: The court held the
defendant liable for the death of the bank customer arising from the
gas leakage which caused an explosion as it was an unusual danger
which was known or ought to have been known by the defendant.
3. Licensees
- A person who has the permission of the occupier to be on the premises for a
purpose for which the occupier has no interest.
- There are three types of licensees:
- Those entering as of right
- E.g: Entering public places such as the library, pool.
- Different from having to pay a substantial amount like
contractual entrants
- Licensees only pay a token amount
- Duty of care owed: A licensee must take the premises as he finds them, subject
to the occupier’s duty to warn him of concealed dangers, not to set traps and
not to injure the licensee by any positive act.
- Two factors:
- The occupier’s knowledge: Where the occupier had actual
knowledge of the danger or ought to have known of it
- Concealed danger: It is hidden and an element of surprise. It is
sufficient that the licensee was not aware or was not expected
to be aware of the danger.
- Datuk Bandar, Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor: The
court held the defendant liable for the injury that the plaintiff suffered from
falling down the shaft of a lift as it was a trap to which the defendant failed to
warn the plaintiff about.
- Child licensees
- An occupier must be prepared for children who enter the premise to
be less careful than adults
- A child cannot be expected to be aware of dangers that may be obvious
to adults
- Duty of care owed: Similar duty owed to adult licensees.
- Must put into further consideration:
- Whether an object is an allurement or not is determined by
looking at the age of the child
- That reasonable parents will not permit their children to be
sent into danger without protection
- The primary responsibility to ensure the safety of the children
is upon the parents
- Places where children are allowed to wander unaccompanied
by adults may be significant
- Phipps v Rochester Corporation: The court held the defendant not liable
even though the children suffered injuries as the defendant had a right
to assume that reasonable parents would not allow their children to
venture into open spaces without exercising any control or ensuring
the safety of the place.
4. Trespassers
- A person who enters into a premise without permission, express or implied,
from the owner and whose presence is either unknown to the proprietor or if
known, is objected to.
- Must put into further consideration: An occupier not only has a duty
not to have on his land objects that are dangerous, but also objects
which are an allurement or invitation to them.
- British Railways Board v Herrington: The court held the defendants liable for
the injury suffered by a child who stepped on the electric railway tracks as the
defendants must take reasonable steps of common humanity and common
sense to avoid danger, or to give warnings to people who might be on his
premises.
- TEST: Whether the warning had the effect of enabling the visitor to be
reasonably safe.
2. Notice
- Where the occupier is not trying to be helpful or informative, but is just trying
to escape from all liabilities by claiming that the plaintiff agreed not to sue for
risks specified in the notice.
- Ashdown v William Samuels & Sons Ltd: The court held that the defence of
notice was successfully raised against the plaintiff who suffered injury from
being on the premises as the notices were clear and sufficient to preclude the
defendant from liability.
3. Volenti Non Fit Injuria
- No duty is owed to any person in respect of a risk willingly accepted.
4. Exclusion clause
5. Contributory Negligence
Remedies
1. Damages
2. Injunction