TORTS FLOWCHARTS

1. OCCUPIERS` LIABILITY
In Malaysia we follow Common Law by virtue of Civil
Law Act 1956
WHO IS AN OCCUPIER
An occupier is a person who
has control over the structure.
It is immaterial whether he is
the exclusive possession or
not.
MEANING OF STRUCTURE
2. Structure includes houses,
railways, stations, bridges
and also moveable things
like, taxi, buses, railway
carriage, etc.
Occupier owes a duty to 4 different
kinds of persons in a descending scale.
Datuk Bandar K.L. v Ong Kok Peng
& Anor
DUTY TO CONTRACTUAL
ENTRANTS
Person enter a premises based on
a contractual rights.
1.Main Purpose Entrant (tenant,
hotel guest after book a room)
Where the main purpose of entry
was use of the structure is in
question, the occupier warranted
that the structure was as safe as
reasonable care and skill could
make it.
Maclenan v Segar
2.Ancillary Purpose Entrant
(patron at cinema, sport
spectators, bus passengers
,patient of private hospital and
private school).
If the structure was mere ancillary,
the occupier warranted that he
had taken reasonable care to see
that the structure was reasonably
safe.
Hall v Brooklands Autoracing
Club.
DUTY INVITEES
1. A person who enters a
premises belonging to another
person by the invitation
express/implied of the occupier
on business which concern the
occupier is called invitees.
(customer of
supermarket.motorist at petrol
station, customer at bank and a
guest of hotel when he just go to
get a room).
2.Occupiers` Duty
The occupier shall use
reasonable care to PREVENT
damage from
UNUSUAL DANGER which he
knows or ought to know.
Indermaur v Dames
Lau Tin Sye vYusuf
Muhammad.
The Federal Court applied the
above principle and further held
the occupiers` duty is confined
to protecting the invitee against
`unusual’ risk i.e. risk which is
not usually found in carrying out
the task which the invitee has in
hand.
The D was not liable becox P
did not prove the unusual
danger.
3. Occupier is still liable
Damage caused to invitee due
to the shortcoming of an
independent contractor
Employed by occupier.
Thomson v Cremin
DUTY TO LICENSEE
1. A licensee is one who
has the occupiers` express
or implied permission to
enter but who lacks any
community of interest with
the occupier. Here
permission was given as a
matter of grace/pleasure
not of business.
(enter public place coffee
shops, as a guest invited to
the house in party.
2.Occupiers` Duty
He owes a duty to WARN
the licensee of any
concealed danger or trap of
which he actually knew.
3.The test is objective.
If the occupier knows the
physical condition of the
premises and a reasonable
man would know that it is
dangerous, the occupier is
deemed to be know of the
danger.
Hawkins v Coulsdon &
Purley Urban District
Council
Yeap Chong Hock v
Kajima-Taisei Joint
Venture
China Insurance Co.Ltd v
Who Hup (Pte.)Ltd.
4.If Occupier had given
warning to exclude his
liability ,licencee cannot
claim.
Ashdown v Samuel
Williams
DUTY TO TRESPASSER
1.Robert Addie`s define Tresspasser: He who
goeson to the land w/out invitation of any sort
and whose presence is either unknown to the
proprietor or, if known is practically objected
to.
(eg. a wandering child, a thief, a person who
has lost his way)
2.Historical Development of Occupiers` Duty
(i) Robert Adie`s case
An occupier was only liable to a tresspaser in
respect of some wilful act done with deliberate
intention of doing harm.. or at least some act
done with reckless regard of the presence of
the trespasser.
(The duty is only not to inflict damage
intentionally or recklessly)
This principle was harsh/limited
(ii)Videan v British Transport
Commission
attempt was made to mitigate the harshness
in Addie`s case.Duty of care was base on
foreseeability test.hether Occupier fore see
the presence of trespasser.
(iii) This was overuled by Railways v Quinland
and it follow Addie`s principle.
(iv) British Railways Board v Herrington
finally overulled Addie`s.
`The Occupiers` duty now is
Whether the occupier has acted in
accordance with common humanity or
according to common standards of civilized
behavior.’
3.This was followed by Malaysian Court in
LLN v Ramakrishnan.
An occupier owed a duty to a trespasser if the
occupier knew that the circumstances on his
premises may be dangerous to any
trespasser. This duty is fulfilled if the occupier
had taken precaution based on common
humanity and in the light of his own
circumstance and financial position.
4.Child Trespasser the duty is havier.
Sinuri b Tubar & Anor v Sy.East Johore
Sawmills Sdn Bhd.
DUTIES TO CHILDREN
1. The occupier must accept
that children are less careful
than adults.
Where an object is placed upon
the occupiers premises
constitutes allurement ,the
occupier is liable if injuries is
caused to a child.
Glasgow Corp. v Taylor.
2. General rule, if no allurement,
trap, invitation, dangerous
object placed upon the land the
occupier is not liable.
3. If warning has been givenn to
children to keep away, Occ is
not liable.
Latham v R. Johnson &
Nephew Ltd.
4.The safety of very young
children in fact relies upon their
parents and the occupiers has
the right to question this
responsibility if warning given by
him is sufficient.
Phipps v Rochester Corp.
DEFENCES
(1)Volenti non fit injuria
(P willing accepted the risks)
(2) Notice(two types)
(i)Warning- if sufficient warning was
given then Occupier is not
liable.London Graving Dock v Horton
(ii)Exclusion of Occupier`s Duty
(Occupier may warn the visitor of the
danger and owes no duty if the risk
was willingly accepted by the P).
Ashdown v Samuel Williams & Sons