Chapter 4 - Cause of Action: Occupier's Liability Flashcards
OCCUPIER’S LIABILITY
Overview
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
OCCUPIER’S LIABILITY
General principles
Meaning of occupier - Wheat v E. Lecon & Co.:
- Supervision, control & power;
- Occupational control;
- Liability is not based on ownership.
EXAMPLES OF OCCUPIER
Contractor
China Insurance Co Ltd v Woh Hup Pte Ltd:
- Contractor of a construction site is the occupier of the premise.
EXAMPLES OF OCCUPIER
Landlord & tenant
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.
CONTRACTUAL ENTRANTS & OCCUPIER’S DUTY
Main purpose of occupying
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.
CONTRACTUAL ENTRANTS & OCCUPIER’S DUTY
Ancillary purpose
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.
INVITEES & OCCUPIER’S DUTY
Overview
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
INVITEES & OCCUPIER’S DUTY
Who is an invitee
Lembaga Kemajuan Tanah Persekutuan v Mariam:
- persons who enters with valid permission & does work for the benefit of the occupiers.
INVITEES & OCCUPIER’S DUTY
Duty of an occupier
Lembaga Kemajuan Tanah Persekutuan v Mariam:
- ensure the safety of the premise for the purpose of which the invitees remain on it.
INVITEES & OCCUPIER’S DUTY
Duty of an invitee on another invitee
Ng Shin Hon v Chow Wai Chuang:
- An invitee owes a duty to ensure that other entrants are not injured while on the premise.
INVITEES & OCCUPIER’S DUTY
establishing liability of an occupier
OK & UD
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.
INVITEES & OCCUPIER’S DUTY
meaning & scope of occupier’s knowledge
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.
INVITEES & OCCUPIER’S DUTY
meaning of unusual danger
Lee Lai & Sons Realty Sdn Bhd v Tan Yah:
- risk or danger which is not usually found in carrying similar task.
EXAMPLES OF INVITEES
Legally authorised entrants
Shamsuddin v Yap Choh Teh & Anor:
- A person who enters premises on the authority of law;
- e.g. policeman, meter-reader.
EXAMPLES OF INVITEES
Business visitors
Indermaur v Dames:
- persons who enter the premise & bring economic advantages to the occupier;
- e.g. hotel visitors, customers, motorists at petrol station.
LICENSEES & OCCUPIER’S DUTY
Overview
1) Meaning of licensees
2) Duty of an occupier
3) Duty towards children licensees
4) Meaning of concealed danger
LICENSEES & OCCUPIER’S DUTY
Meaning of licensees
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.
LICENSEES & OCCUPIER’S DUTY
duty of an occupier
Datuk Bandaraya v Ong Kok Peng:
- not to expose him to hidden perils; and
- to warn the licensees of existing traps or concealed danger.
LICENSEES & OCCUPIER’S DUTY
duty towards children licensees
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.
LICENSEES & OCCUPIER’S DUTY
meaning of concealed danger
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.
TRESPASSERS & OCCUPIER’S DUTY
Overview
1) Meaning of trespassers
2) Duty of occupier
3) Child trespassers
TRESPASSERS & OCCUPIER’S DUTY
Meaning of trespassers
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.
TRESPASSERS & OCCUPIER’S DUTY
duty of occupier
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.
TRESPASSERS & OCCUPIER’S DUTY
child trespassers
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.
