OCCUPIER LIABILITY

1 – INTRODUCTION
Branch of negligence law regulating the duty owed by an occupier of premises to visitors
 Injuries to visitors or damage to their property arising out of the occupier’s failure to
maintain premises in a condition that is safe for visitors

 Concerned with the occupancy duty – injuries arising from the defective state of the
premises (Occupiers Liability Ordinance s.3(2)), and not with the activity duty, which is
governed by negligence law
 Occupancy – covering situation where P’s injury arose from the unusual danger
of the premises
- Who falls under the scope of the occupier liability of OLO s2(2)
o “in consequence of a person’s occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises”
o Licensees and invitees  “visitors”

 Activity – covers situations where P’s injury arise from the activity on the
premise  negligence

 Did the injury arise from a defect in the condition of the premises, or did it arise
from a dangerous activity UNRELATED to the premises as such, but which just
happened to be carried on there?
e.g. staircase handrail that collapses  occupancy duty
e.g. waiter’s pouring of tea that scalds customer  activity duty

Bhana v Ocean Apex Trading (2010)

Fact – P shopper stood in front of mirror examining a piece of clothing, took a step back
from the mirror, and her leg caught the leg of a shop assistant who was walking right
behind her, causing her to fall and fracture her wrist
Held –
Defendant shop found in breach of occupier’s duty
 In a clothing shop, it is foreseeable that customers will do as the plaintiff did, and the
aisles were simply too narrow to accommodate that activity safely

 For worker’s injuries – did the injury arise from a use of the premises, or from an
unsafe system of work?
 An occupier who had subcontracted demolition work to a contractor was not liable for the
injury to a workman resulting from dangerous demolition techniques (Ferguson v Welsh)

 Discernible tendency in Hong Kong toward expanding the reach of occupier’s

liability to apply to work site injuries that arise from ACTIVITIES, including the
system of work.

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 - Wong Kwok Tung v Tsang Hin Ping
o Occupier (who was NOT the EMPLOYER) was found liable in occupier
liability for injuries to a scaffolding workman caused by the absence of safety
harnesses

- Lam Cheuk Leung v Erawan Co Ltd

o Cement contractor on a construction cite was found liable in occupier liability
for injuries to cement worker who fell from defective scaffolding and who was
not wearing safety harness as there was no suitable anchorage for the safety
harness
 Held – Cement contractor should have known P’s employer was
adopting unsafe system of work, and the common duty of care
required him to take measures to remedy such situation

2 – WHO IS AN OCCUPIER?
Defendant owes a DOC under OLO only if P can show that D is an occupier of the premises
in question
 Common law test to determine whether D is an occupier is one of control
 Legal interest in the land is NOT necessary

 Control – power to admit and exclude visitors

o Wheat v E Lacon & Co – D is an occupier if he has some degree of control
“associated with and arising from presence in and use of or activity in the
premises”

TEST – whether D has sufficient degree of control over the use of premise, or activity
i. If so, under DOC towards those who came lawfully into the premise
ii. Ownership NOT required – s2(2) OLO
iii. Complete or exclusive control NOT required (Wong Lai Kai – awning collapsed
but D was not owner, only used to provide shelter to customers)
iv. Can be more than one occupier (Wheat v Lacon – residuary control to qualify as
occupier; there can be more than one occupier at the same time and both owe OL)
v. Absentee owner may be held to exercise sufficient control with or without
physical occupation (Wong Tung Ming – D’s lighted joss stick while D not in
Hong Kong and burnt P)

Officers coming to inspect a land by virtue of statutory powers are NOT occupiers but
VISITORS of the land (Lam Pui Yi Anita)

 Construction sites cases

Cheung Hung Yuk v Chiu Chai
Fact – P killed when hoist moved
Held – permission to use the site or relevant equipment seems to be sufficient to

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 constitute control; flooring subcontractor found to have control over hoist and therefore
an occupier

Ma Hui Tung Kuk v Cheong Hing Ha Kee Construction Co

Fact – P killed when removing partitioning due to the collapse of the plank he was standing
on
Held – general contractor supervising can be an occupier; D given the power to
authorize others to enter and remain on the premises to carry out work

3 – WHO IS A VISITOR?
To bring an occupier liability action, P must show that he is a visitor
 OLO s2(2) A visitor subsumes all those categories of persons who were protected at
common law
 Visitors are persons permitted by the occupier to be on the premises
 Trespassers are owed no duty in occupier liability
 Expressed or implied permission

[Implied permission]
- In many cases, permission is obvious; as where customers enter shops or restaurants
which by their nature welcome such persons, or when a postman enters a housing
estate to deliver mail;

- Where a person enters premises to communicate with the occupier, permission will
generally be implied, unless he knows or ought to have known that he is forbidden
to enter, as where a notice is posted prohibiting vendors and the like (Robson v
Hallet)

- Mere knowledge of and acquiescence in the intrusions is not always sufficient to

imply permission, in particular when the occupier has no interest in the visitor’s
presence

- P must show that the occupier has knowingly tolerated regular intrusions, in
circumstances where a reasonable occupier would feel that, unless he acted to stop the
entry, the belief would be induced in those who entered the land that they had
permission to do so

Implied permission – Phipps v Rochester

 implied from particular circumstances
Children known to play on open space during weekend and no actions taken by D to
prevent such entry.
P aged 5 entered the site to pick berries, fell into the trench and injured.
Held – owner of the premises must take steps to show he resents and will try to
prevent the invasion
 Implied permission

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  No evidence that D prohibited the children’s entry
 Knowledge is not enough to constitute license – visitor but no breach as P entitled to
rely on parental supervision

Ting Kam Yuen v Hong Kong Buddhist Association

 Knowledge of a single entry was sufficient to put the common duty of care on
the occupier

Occupier’s knowledge that one of the contractor’s workmen went onto the unfenced roof to
do some construction work, and his failure to prevent that usage, constituted sufficient
evidence of permission to use the roof to quality the injured workman as a visitor

Lo Ka Yue v Leung Chun Kit

Where an occupier knows that guests invited to a house party may bring along friends, and
he does and says nothing to restrict the persons to be invited, those friends will be treated
as visitors for the purposes of OL

Glasgow v Taylor – ALLUREMENT to CHILDREN may imply permission

Children  enters D’s land enticed by something attractive (to the mind of a child) yet
dangerous
- D is aware of the existence of the attractive object, permission may be implied
by the court

 Visitor may be limited by –

i) the PART of the premises for which permission granted
ii) DURATION of visit
iii) PURPOSE of visit (Tomlinson v Congleton Borough Council)

INVITEE – a person whom the occupier granted permission to enter his premises in
furtherance of such material interest of his own or a common business interest that both share

LICENSEE – a person who is given permission by an occupier to enter premises but who has
nothing in common with the interests of the occupier
a. Occupier takes no step to prevent such person’s entry
b. Implied permission is a question of fact
c. Onus of proof – Plaintiff

4 – PREMISES
To quality for an action under the OLO, P must have been injured while ON THE
PREMISES, and the injury must arise from a DEFECTIVE STATE of the PREMISES (as
opposed to activities carried on there).

OLO s2(3a) –

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 i) Broadly worded: ‘any fixed or moveable structure, including any vessel, vehicle
or aircraft’
ii) In addition to the building, its entranceway, lobby, podium, awning attached to
building, scaffolding, etc.
iii) e.g. a mini-van used in a film stunt, a lift, an escalator, a ladder, a stool, a chair in
restaurant

5 – NATURE & EXTENT OF THE COMMON DOC

The same duty is owed to all lawful entrants, the common duty of care (s3(1)).
 The duty is one of reasonable care in the circumstances, and is circumscribed according to
the purposes for which the visitor is invited or permitted to be on the premises (s3(2)).

OLO s3(2) – “Such care … reasonable to see that the visitor will be reasonably safe in
using premises for purposes invited” – in the circumstances!

 Connotes an affirmative duty

Chan Chun Kam v Chu Nga Kam
 Visitor killed in fire not responsible by D
 Failure to provide adequate escape routes from the fire

 Take into account – likelihood, seriousness, social value and risk and cost of
preventive measures
Tomlinson v Congleton Borough Council
D was owner of park with lake. P dived into water and struck head into bottom of water
and broke his neck and become partly paralyzed. Warnings usually ignored.
Held –
Take into account – likelihood, seriousness, social value and risk and cost of preventive
measures
- Social value of an activity – e.g. public’s enjoyment of using the lake
People should have the capacity to decide for themselves whether or not to take the risk

 “What is required by standard of reasonable care”

Cheung Wai Mei v Excelsior Hotel
P injured when she slipped on some spilt liquid
Held – NO BREACH
 The only way to obviate the risk would have been for ‘staff to be posted at every
entrance to the hotel and for them to be equipped with cleaning utensils capable of
removing any liquid detected’
 Was noted by the court to be “more than what is required by the standard of reasonable
care”

 No breach where there is nothing dangerous about the state of the premises
Wong Wing Ho v Housing Authority
12-year-old P fell from fence that he had climbed in order to retrieve basketball

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 Held – NO BREACH; nothing defective about the fence;
Duty is not breached where there is nothing dangerous about the state of the premises but
only in what the plaintiff chooses to do on the premises

 Duty may extend to controlling others, where harmful conduct of those others is
a foreseeable result of the occupier’s breach of duty (Wong Tung Ming v Kwok
Chiu Hung)
o Consistent with OLO s2(1) – “Occupier of premises owes … in respect of
dangers due to the state of the premises or to things done or omitted to be
done on them”
o A duty that Lord Hoffmann clarified as meaning “activities or the lack of
precautions which cause risk, like allowing speedboats among swimmers”
(Tomlinson v Congleton Borough Council)

 An occupier NOT responsible for injuries to visitors caused by criminal acts of

third parties (may be exceptions)
Exceptions – only when in circumstances where such conduct was reasonably
foreseeable and where the defendant could control the conduct of the third party
criminals

Li Hoi Shuen v Man Ming Engineering Trading

Court held D not liable
 It did not have control over the criminals

Cunningham v Reading Football Club

Unruly spectators threw loose pieces of concrete at police in football match
Held – NO DUTY unless criminal acts are reasonable foreseeable and D could control
the third party criminals
- Although D had the responsibility to ensure that concrete was not loose

 CHILD VISITORS – OLO s3(3)(a)

An occupier must be prepared for children to be LESS CAREFUL than adults.
 Circumstances posing little danger to adults may be hazardous to children, given their
curiosity, inexperience, so a more exacting standard is required.
 Legal standard – That of a reasonably prudent parent

Simkiss v Rhondda
Reasonably prudent parent standard –
If a reasonably prudent parent, knowing of the conditions, would permit children to play
there then occupier should not be required to take additional safety measures
Take into account social habits of neighborhood

It is important for the court to strike a balance between, on the one hand, the need to protect
children and provide a remedy for their injuries, and on the other hand, the rights of

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landowners, who should not be required, at their own expense, to fence every tree and hill in
order to avoid all injuries to children.

 Responsibility of taking care of kids should primarily rest on adults; occupiers

should not be held to a higher standard than parents (Phipps v Rochester)

 Occupier can reasonably expect that the child will be accompanied and
supervised by an adult, usually the parent (Fu Cheung Chun Tom v MTR Corp Ltd)

Jolley v Sutton
Abandon ship in an open area crushed on 14-year-old boy
Held –
Boat is an object of allurement;
Reasonably foreseeable that child will meddle with the abandoned boat;
D should have taken into account the frequency of children
 Take into account the range of activities in which a child may engage

 SKILLED VISITORS / VISITORS EXERCISING A CALLING – OLO S3(3)(b)

An occupier can reasonably expect that a person in the exercise of his calling will be alert to
and guard against any special risks to that calling.

Roles v Nathan
Occupier NOT liable when chimney cleaners were killed by fumes from carbon monoxide
when cleaning occupier’s chimney.

 OLO S3(3)(b) – “persons with a relevant calling require less care, but the risk must
be within his calling”
o For S3(3)(b) to apply, it must be shown that the risk relates to the calling

Hsu Li Yun
Deceased was an electrical repairer, stood on fish tank to reach for electric box –
electrocuted when fell into the tank
Held – falling into a fish tank and that the tank could not support his weight
 Held NOT to be the special risk incidental to his calling
(Yeung Kam Fuk v Len Shing Construction)
 Deceased exposed himself to risks of injury working with electricity, but not to other
risks such as working at height, or working over water tank with inadequate support
Note – 75% CN

 WARNINGS – MAY DISCHARGE DUTY – OLO S3(4)(a)

Common DOC does not require occupier to make the premises safe, but to take reasonable
care to see that the visitor is safe when using the premises.

 Occupier’s warning of a danger may be a sufficient discharge of the common DOC

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e.g. MTR loudspeaker announcement warning passengers that doors are about to close (Fu
Cheung Chun Tom v MTR Corp)

TEST – whether the warning was SUFFICIENT

(1) The specific danger must be identified (general not sufficient)
(2) Must be possible for the visitor to avoid the danger
(3) Must be specific enough to draw visitors’ attention (Wood v Wah Tung)
(4) Must be displayed at visible position (Cheung Yuet Har)
(5) Be in a language easily understood

o Insufficient if it offers no safe alternative, or when the notice is posted in an

unsuitable place
o An occupier is expected to do more in anticipation of those who do not heed
what is otherwise an effective warning (Fu Cheung Chun Tom v MTR Corp)

Chan Kwai Ngor v Leung Fat Hung

P went into kitchen of the restaurant and slipped on the greasy ram – warning on slippery
floor
Held – Only warned of slippery floors  NOT specific enough (i.e. greasy)
 Insufficient warning

Wood v Wah Tung

Worker fell into an uncovered hole in construction site
Held – Warning signs have to specific enough to DRAW worker’s ATTENTION

Hau Kit Ho v Starway International Development

Unusually wet and slippery floor at the time
Held – permanently affixed signs are unlikely to ever be effective because it does not
point to the specific danger  only referred to the general risks of premises

Warnings have to be displayed in a position that can be seen – VISIBLE / conspicuous

position
Cheung Yuet Har v Force Team Ltd
Held – Poorly located and uneasily read signs are NOT effective to discharge DOC

Be in a language able to be understood – BOTH in Chinese and English (OLO S3(4)(a))

 APPOINTMENT OF INDEPENDENT CONTRACTOR MAY DISCHARGE

DUTY (OLO S3(4)(b)
Where injury to a visitor is caused by the faulty work of an independent contractor, “the
occupier is not to be treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an independent contractor
and had taken such steps as he reasonably ought in order to satisfy himself that the
contractor was competent and that the work had been properly done”

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 Yeung Kam Fuk
Use of contractor to install or repair MAY discharge duty when –
(1) Reasonable to entrust to a contractor
(2) Reasonable care in selecting contractor
(3) Reasonable steps to supervise work – standard practice of the industry
(4) Reasonable steps to satisfy work was properly done

***Extra-hazardous
- Wong Chansamut v Hui Ching Luk – if delegated work is extra-hazardous then still
answerable to the tort committed under special and aggravating circumstances
- Mak Kwai Yin v USA Fur Processing – special risks that are not within the expertise
of the contractor but within occupier’s knowledge  still answerable
- Wan Tsz Nok v Hung Fai Electrical Engineering – burden on the deceased to prove
calls falls outside ‘without more’ circumstances

Kristen Bowers
P musician suffered injuries after inhaling toxic pesticides sprayed by contractor appointed
by D occupiers
Held – occupier should have closed the premises – spraying pesticides involved serious
risks to health and should be known to occupier

 CAUSATION – as in negligence
 DEFENCES – as in negligence; but see OLO S3(1) & S3(5)
o S3(1) modify or exclude by agreement
o S3(5) no duty if risks willingly accepted
CN – LARCO S.21
VOLENTI – OLO S3(5)

 EXCLUSION OF LIABILITY
OLO S3(1) - “except in so far as he is free to and does extend, restrict, modify or exclude his
duty…by agreement or otherwise”

OLO S4(1) - if the occupier has in contract set a lower standard in relation to A, the standard
will not apply to other lawful visitors that A allows to enter the premises

CECO S2(1) – apply to occupier’s liability

- PI cannot be excluded
- Property damage only if reasonable to exclude

CECO S2(2) –
- No application where premises are accessed for recreation or education purposes –
unless granting such access falls within the business purposes of that occupier

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  TRESPASSERS
No statutory legislator that covers trespassers

Occupiers don't owe a lot of duty to trespassers not allowed to be on that land, only way is to
avoid the intentional or reckless infliction of injury on a trespasser known to be on the
land (Robert Addie & Sons v Dumbreak)

British Railways Board v Herrington

Child crossed over to railway and badly electrocuted
Held –
Duty of common humanity: acted humanely in the circumstances
(lower standard than OL)
- Arises only if occupier knows of trespassers on premises and knows of the
danger on his premises
- Duty to take reasonable steps to enable trespasser to avoid danger (e.g.
warnings) – having regard to occupier’s liability and resources
- Duty only arises if occupier knows of the likelihood that trespassers may try to
enter the premises, and that there is a known danger to trespassers by virtue of
the state of the premises

- CN & Volenti available

Wong Wing Ho v Hong Kong Housing Authority

Boy climbs over fence to reach basketball
Held – without need to resort to Herrington Principle – saw the boy as a lawful visitor and
OL owed to him

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