Chapter 4 - Cause of Action: Occupier's Liability

Question 1

OCCUPIER’S LIABILITY

Overview

Answer 1

1) General principles
2) Examples of occupier
3) Contractual entrants & occupier’s duty
4) Invitees & occupier’s duty
5) Licensees & occupier’s duty
6) Trespassers & occupier’s duty

Question 2

OCCUPIER’S LIABILITY

General principles

Answer 2

Meaning of occupier - Wheat v E. Lecon & Co.:

• Supervision, control & power;
• Occupational control;
• Liability is not based on ownership.

Question 3

EXAMPLES OF OCCUPIER

Contractor

Answer 3

China Insurance Co Ltd v Woh Hup Pte Ltd:

• Contractor of a construction site is the occupier of the premise.

Question 4

EXAMPLES OF OCCUPIER

Landlord & tenant

Answer 4

Sri Inai Pulau Pinang v Yong Yit Swee:

• local authority which is the landlord is held to be liable because he had to comply with by laws to provide safety exits.

Question 5

CONTRACTUAL ENTRANTS & OCCUPIER’S DUTY

Main purpose of occupying

Answer 5

McLenan v Segar:

• duty is to ensure that the premise is safe & adequate for the purpose of which it is contracted for;
• not responsible for hidden dangers that cannot be found even after inspection.

Question 6

CONTRACTUAL ENTRANTS & OCCUPIER’S DUTY

Ancillary purpose

Answer 6

Hall v Brooklands Auto-Racing Club:

• ensure that the premise is safe for the particular purpose.
• reasonable care only against dangers that may be reasonably assumed to be possible according to the nature of the usage.

Question 7

INVITEES & OCCUPIER’S DUTY

Overview

Answer 7

1) Who is an invitee
2) Duty of an occupier
4) Duty of an invitee on another invitee
5) Establishing liability of occupier
6) Meaning & scope of occupier’s knowledge
7) Meaning of unusual danger
8) Examples of invitees

Question 8

INVITEES & OCCUPIER’S DUTY

Who is an invitee

Answer 8

Lembaga Kemajuan Tanah Persekutuan v Mariam:

• persons who enters with valid permission & does work for the benefit of the occupiers.

Question 9

INVITEES & OCCUPIER’S DUTY

Duty of an occupier

Answer 9

Lembaga Kemajuan Tanah Persekutuan v Mariam:

• ensure the safety of the premise for the purpose of which the invitees remain on it.

Question 10

INVITEES & OCCUPIER’S DUTY

Duty of an invitee on another invitee

Answer 10

Ng Shin Hon v Chow Wai Chuang:

• An invitee owes a duty to ensure that other entrants are not injured while on the premise.

Question 11

INVITEES & OCCUPIER’S DUTY

establishing liability of an occupier

OK & UD

Answer 11

Ng Shin Hon v Chow Wai Chuang:

Liability is established if:

• Occupier’s knowledge: i.e. occupier knows or ought to have known of that danger;
• Unusual danger: i.e. the danger is unusual to that class of person / not known to the invitee.

Question 12

INVITEES & OCCUPIER’S DUTY

meaning & scope of occupier’s knowledge

Answer 12

Industrial Commercial Bank v Tan Swa Eng & Ors:

An occupier is deemed to have knowledge if he:

• knows the physical condition of the premises; and
• a reasonable man would know it is dangerous.
• the state of knowledge is assessed at the time of the incident.

Question 13

INVITEES & OCCUPIER’S DUTY

meaning of unusual danger

Answer 13

Lee Lai & Sons Realty Sdn Bhd v Tan Yah:

• risk or danger which is not usually found in carrying similar task.

Question 14

EXAMPLES OF INVITEES

Legally authorised entrants

Answer 14

Shamsuddin v Yap Choh Teh & Anor:

• A person who enters premises on the authority of law;
• e.g. policeman, meter-reader.

Question 15

EXAMPLES OF INVITEES

Business visitors

Answer 15

Indermaur v Dames:

• persons who enter the premise & bring economic advantages to the occupier;
• e.g. hotel visitors, customers, motorists at petrol station.

Question 16

LICENSEES & OCCUPIER’S DUTY

Overview

Answer 16

1) Meaning of licensees
2) Duty of an occupier
3) Duty towards children licensees
4) Meaning of concealed danger

Question 17

LICENSEES & OCCUPIER’S DUTY

Meaning of licensees

Answer 17

Yeap Cheng Hock v Kajima-Taisei Joint Venture:

• Person who enters the premise with a consent of the occupier;
• Based on occupier’s gratuitous permission & not for any business purpose.

Question 18

LICENSEES & OCCUPIER’S DUTY

duty of an occupier

Answer 18

Datuk Bandaraya v Ong Kok Peng:

• not to expose him to hidden perils; and
• to warn the licensees of existing traps or concealed danger.

Question 19

LICENSEES & OCCUPIER’S DUTY

duty towards children licensees

Answer 19

Kalaichelvi v Kinrara Group Estates Ltd:

• Duty towards children licensees is higher;
• A child cannot be expected to be aware of the dangers that may be obvious to adults.

Question 20

LICENSEES & OCCUPIER’S DUTY

meaning of concealed danger

Answer 20

China Insurance Co Ltd v Woh Hup (Pte) Ltd:

• All concealed dangers are unusual danger;
• But not all all unusual danger are concealed danger;
• e.g. electric cables - cables are obvious, but the current was concealed.

Question 21

TRESPASSERS & OCCUPIER’S DUTY

Overview

Answer 21

1) Meaning of trespassers
2) Duty of occupier
3) Child trespassers

Question 22

TRESPASSERS & OCCUPIER’S DUTY

Meaning of trespassers

Answer 22

Government of Malaysia & Anor v Kong Ee Kim:

• A person who enters premises w/o an express or implied permission of the occupier; or
• There is an improper use of the premise.

Question 23

TRESPASSERS & OCCUPIER’S DUTY

duty of occupier

Answer 23

Southern Portland Cement Ltd v Cooper:

• If the occupier knows or ought to have known that a trespasser may enter his premise;
• Occupier must take reasonable precautions to avoid any damages from occurring.

Question 24

TRESPASSERS & OCCUPIER’S DUTY

child trespassers

Answer 24

Lembaga Letrik Negara v Ramakrishnan:

• If occupier has placed something that is an allurement to children, he is regarded as inviting the children to meddle with the dangerous thing;
• As such, a duty is imposed on the occupier.