Occupiers' Liability
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Occupiers' Liability

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one of the chapters in LAW 498 - Law of Torts II ...

one of the chapters in LAW 498 - Law of Torts II

prepared by:
Azrin Hafiz
Bachelor of Legal Studies (Hons) student
Faculty of Law
Universiti Teknology MARA (MARA Universiti of Technology), Malaysia

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Occupiers' Liability Occupiers' Liability Document Transcript

  • Bachelor of Legal Studies (Hons) 19/08/2013 azrin.hafiz 1 OCCUPIERS’ LIABILITY LAW 498 – Law of Torts II prepared by: azrin hafiz / BLS (Hons) 1 What is occupiers’ liability? • A liability of an occupier to entrant who suffered injury on his premises prepared by: azrin hafiz / BLS (Hons) 2 Who is an ‘occupier’? Per Lord Denning in Wheat v Lacon & Co Ltd: ‘a person who has sufficient degree of control over premises’ also known as occupational control test prepared by: azrin hafiz / BLS (Hons) 3 ‘two or more may be occupier’ In China Insurance Co Ltd v Woh Hup (Pte) Ltd, held: the contractor of a construction site was an occupier of the premises prepared by: azrin hafiz / BLS (Hons) 4 ‘occupier need not have exclusive occupation’ In Lembaga Kemajuan Tanah Persekutuan v Mariam, h: the appellant did not cease to be occupier as the existence of kongsi-houses were for the common benefit of the appellant, contractors and labourers. prepared by: azrin hafiz / BLS (Hons) 5 In Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee, h1: a person with sufficient degree of control over the premises, is deemed to be occupier and may be sued for any injuries sustained on the premises. h2: MPPP, as a landlord of the premise stands in close proximity to the entrants of the tenants and have duty to ensure the premises let out are safe and suitable for the purposes for which they are let out. prepared by: azrin hafiz / BLS (Hons) 6
  • Bachelor of Legal Studies (Hons) 19/08/2013 azrin.hafiz 2 What is premise? In Lau Tin Sye v Yusuf bin Muhammad, defines premise as ‘all forms of buildings, land spaces, vehicles to carry persons including tractors’; and structures, e.g scaffolding, ladders, walls, pylons, grandstand. prepared by: azrin hafiz / BLS (Hons) 7 Types of entrants Four types of entrants with descending degree of duty of care are listed down in case Datuk Bandar DBKL v Ong Kok Peng & Anor: prepared by: azrin hafiz / BLS (Hons) 8 Contractual entrants; Invitees; Licensees; and Trespassers. (i) Contractual Entrant Is a person who enters by virtue of contract; and pay to utilise the premise. prepared by: azrin hafiz / BLS (Hons) 2 types of C.E. Main Purpose Entrant: person who paid to be on premises, and for purpose of occupying Ancillary Purpose Entrant: person who paid to be on premises for a primary purpose other than personal dwelling 9 D.o.C: C.E. Per McCardie J in MacLenan v Segar: ‘ it has implied warranty that the occupier must foresee the guest will be reasonably safe in using the premises which he is contracted’ ‘however, occupier cannot be held liable for defects to the construction/ alteration/ repair/ maintenance that cannot be reasonably discovered’ prepared by: azrin hafiz / BLS (Hons) 10 (ii) Invitee Is a person who enters on authority of occupier; or on business of interest. prepared by: azrin hafiz / BLS (Hons) 2 categories of Invitee Legally authorised: A person who enters the premises on the authority of law e.g police, meter-reader, health inspector etc Business visitor/associate: A person who enters into premises and bring economic advantages to the occupier. 11 In Shamsuddin v Yap Choh Teh, f: due to emergency 1969, the use of explosive must be monitored by a police. Plf, a police was on duty at the quarry was injured when a splinter from explosion hits his eye. h: the plf as an invitee was owed duty of care by df to ensure that he would not be injured by any negligent during explosion. prepared by: azrin hafiz / BLS (Hons) 12
  • Bachelor of Legal Studies (Hons) 19/08/2013 azrin.hafiz 3 D.o.C: Invitees Occupier owes duty to take reasonable care to prevent injury from unusual danger of which he knows or ought to know and the invitees do not know In London Graving Dock Co v Horton, unusual danger is defined as danger which is not common for the purposes of the particular invitees. prepared by: azrin hafiz / BLS (Hons) 13 prepared by: azrin hafiz / BLS (Hons) 14 Elements to be satisfied* by occupier towards invitee Occupier is knowing or ought to know; Danger is unusual; Danger is not known to invitee; and Occupier fails to take reasonable precaution to avoid harm (e.g make announcement) *can be applied as held of judgement In Takong Tabari v Government of Sarawak, f: plf who was on df Public Bank suffered injury due to explosion and fire from gas leak of corroded gas pipe in premises. Gas pipe is maintained by PWD. Gas is supplied by df. h: Public Bank as an occupier is knowing or ought to know that the danger is unusual and not known to plaintiff, but it fails to take reasonable precaution to avoid harm. prepared by: azrin hafiz / BLS (Hons) 15 (iii) Licensee Is a person who enters on premises with occupier’s gratuitous permission prepared by: azrin hafiz / BLS (Hons) 3 categories of Licensees Entrant by implied permission: Person who enters into premises in circumstances where the Court implies a license Social visitors: Person who enters into private premises with the permission of the ‘o’ or by invitation Entrant as of right: Person who has right to enter into premises that are publicly open 16 D.o.C: Licensees A licensee must take the premises as he finds them, subject to the occupier’s duty to warn concealed dangers, not to set traps and not to injure the licensee. In Robert Addie v Dumbreck, it was held that, occupier must not allowed concealed dangers to exist on premises, which not known by visitor, but known or ought to be known by occupier prepared by: azrin hafiz / BLS (Hons) 17 In Latham v Johnson, concealed danger is defined as hidden and having element of surprise and it is suffice if the licensee is not aware of and could not expected to be aware of. If the licensee has been reasonably warned/notified of the danger, the danger is ceased to be concealed danger and occupier owed him no duty of care – as stated in Yeap Cheng Hock v Kajima-Taisei Joint Venture prepared by: azrin hafiz / BLS (Hons) 18
  • Bachelor of Legal Studies (Hons) 19/08/2013 azrin.hafiz 4 Children Licensees The reasonable parents will not allow their children to be sent into danger w/o protection. Primary responsibility for safety of the children remains with parents. In Phipps v Rochester Corp, it was held that, df owed no duty as it has right to assume that a prudent and reasonable parents/guardian would not allow their children to venture into open space w/o any control or w/o ensuring the place was safe. prepared by: azrin hafiz / BLS (Hons) 19 (iv) Trespasser Is a person who enters premises without any express/implied permission of the occupier. prepared by: azrin hafiz / BLS (Hons) 20 Examples of trespasser Wandering children Thief A person who lost his way etc D.o.C: Trespassers Must take reasonable precautions to avoid damages. In British Railways Board v Herrington, it was held that, the occupier must take reasonable steps of common humanity and common sense to avoid dangers; or to give warnings to people who might be on his premises. prepared by: azrin hafiz / BLS (Hons) 21 Children Trespassers The occupier has a duty not to have on his land objects that are dangerous but are also allurement or invitation to them In Lembaga Letrik Negara v Ramakrishnan, appl was held liable as they had erected, maintained and controlled a highly dangerous pole which easily reached by children and failed to put up warning signs and adequate anti- climbing devices. prepared by: azrin hafiz / BLS (Hons) 22 Summary prepared by: azrin hafiz / BLS (Hons) TC I L Degree of Duty of Care C.E. I L T MacLenan v Segar : reasonably safe for contracted purpose Takong Tabari v Govt of Sarawak: prevent injury from unusual danger Robert Addie v Dumbreck: warn any concealed danger British Railways Board v Herrington: reasonable precaution based on common humanity and common sense 23 Thank you prepared by: azrin hafiz / BLS (Hons) 24 reference: Law of Torts in Malaysia, 2nd Ed. Sweet & Maxwell Asia by Norchaya Talib