occupier liability
• Occupiers Liability arises in a situation where the premises are not as safe as it should reasonably be and this defective state, which includes activities carried out on the premises, causes injury or damage to the plaintiff.
• Occupiers Liability Act 1957 - which imposes an obligation on occupiers with regard to 'lawful visitors'
• Occupiers Liability Act 1984 - which imposes liability on occupiers with regard to persons other than 'his visitors'.
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• . Contractual Entrants.
• Is a person who is on the premises pursuant to a contractual right.
• Main purpose entrant
• Is a person who enters the premises for the purpose of occupying it, and who has paid to be on the premises, such as a tenant or a guest in a hotel.
• Occupier duty is to ensure that the premises is safe and adequate for the purposes for which it is contracted out, and the occupier must employ and exercise reasonable steps and expertise in the performance of this duty. Case : MacLenan v Segar
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• To a person who has paid to be on the premises for the primary purpose of some activity other than as a personal dwelling, such as a patron at a cinema, a spectator at a sport event, a passenger on a bus, a patient at a private hospital.
• Occupier’s liability is to ensure that the premises are safe for that particular purpose.
• Case: Hall v Brooklands Auto Racing Club.
Case: Shamsuddin v Yap Choh The
• The court held that, the policeman to be an invitee and a duty of care was owed to him so that he would not be injured by any negligent method of detonating the explosive.
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• These are the person who enters premises, be it public or private, fro a materialistic reason and who actually bring economic advantages to the occupier, such as a customer at a supermarket, a guest at a hotel, a motorist at a petrol station.
• Case: Indermaur v Dames, with reasonable care that any danger which is known to him (or ought to be known by him) and which the visitor is ignorant of, is averted, whether by notice, lighting, guarding or otherwise. There is no absolute duty to prevent danger, but a duty to make the place as least dangerous as such a place could reasonably be, having regard to the circumstances applicable in carrying on the particular business.
• The duty owed to an invitee is to prevent damage arising from unusual danger or unusual risk. – Case Takong Tabari v Government of Sarawak (Public Bank cases).
• Social visitors – is one who enters into private premises with the permission of the defendant occupier or by invitation. Example being a guest.
• Case : Datuk Bandar Dewan Bandaraya v Ong Kok Peng, the duty owed to a licensee is not to expose him to hidden perils, and to warn him of existing traps or concealed danger.
The third party was also found liable as they failed to erect wrning signs from the moment they came to know or ought to have known of the trap or hidden danger created by the defective lift, contrary to the provison in the maintenance agreement.
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• An entrant by implied permission enters into premises in circumstances where the court implies a license. He enters without ant express restriction by the occupier. Example , such as a child entering a piece of land due to some attraction on the land, or someone who is not prevented to use the occupier’s land in order to get to the other side of the land.
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• Principle : The occupier duty of care arises when two factors are established:
• 1. Knowledge – if he had actual knowledge as to the existence of danger, but the liability has been extended to situations in which he ought to have known of the existence of the danger.
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• An entrant by implied permission enters into premises in circumstances where the court implies a license. He enters without ant express restriction by the occupier. Example , such as a child entering a piece of land due to some attraction on the land, or someone who is not prevented to use the occupier’s land in order to get to the other side of the land.
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• Principle : The occupier duty of care arises when two factors are established:
• 1. Knowledge – if he had actual knowledge as to the existence of danger, but the liability has been extended to situations in which he ought to have known of the existence of the danger.
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• A Trespassers is a person who enters premises without any express or implied permission of the occupier. His existence on the premises may not be known to the occupier, such as a wandering child, a thief, a person who has lost his way etc.
• A person who is legally authorized to be on the premises may become a trespasser if he goes onto a restricted area, or where he stay on the premises beyond the time allowed to him.
• Occupier duty – in general an occupier does not owe a duty to a trespasser as he had entered without permission and is therefore assumed to have accepted all risks and any danger there might be on the property. Case; British Railway v Herrington.
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• McGeown v Northern Ireland Housing Executive [1994] 3 All ER 53 House of Lords
• The claimant was injured when she tripped in a hole on land owned by the defendant. The land was a public right of way. It was held that the defendant was not liable as the claimant was not a lawful visitor under the Occupiers Liability Act 1957 because she was exercising a public right of way.
• Holden v White [1982] 2 All ER 328 Court of Appeal
• The claimant, a milkman, was injured on the defendant’s land by a manhole cover which broke when he stepped on it. At the time he was delivering milk to the house of a third party who had a right of way across the defendant’s land. It was held that he was not entitled to claim against the defendant since he was exercising a right of way and was not therefore a lawful visitor of the defendant.
• In Malaysia, the test applicable in deciding whether an occupier is liable to a trespasser for loss or damage caused while on the premises is a subjective test based on the occupier’s knowledge of the danger on his premises according to his own financial limitations.
• If the occupier knows or ought to know that a trespasser may enter his premises, then the occupier must take reasonable precautions to avoid any damage from occurring. Case : Chuan Seng v Idris.
• Volenti non fit injuria - the common duty of care does not impose an obligation on occupiers in respect of risks willingly accepted by the visitor. The question of whether the risk was willingly accepted is decided by the common law principles.
• Contributory negligence - Damages may be reduced under the Law Reform (Contributory Negligence) Act 1945 where the visitor fails to take reasonable care for their own safety.
• Exclusion of liability - allows an occupier to extend, restrict, exclude or modify his duty to visitors in so far as he is free to do so.