Occupiers Liability

Occupier’s Liability

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Wheat v Lacon [1966 -occupier Harris v Birkenhead [1976] Mohd Sainudin Ahmad v Consodilated Hotels 1991Chong Fah Lin v United Engineers (M) Sdn Bhd Wheeler v Copus 1981 premises DATUK BANDAR KUALA LUMPUR V. ONG KOK PENG [1993] entrants definition 7. MACLENAN V. SEGAR 1972 – Hotel 8. Gilmore v London County Council – physical exercise 9. Thomson v Cremin. -reasonabke steps free from harm 10. Shamsuddin v Yap Choh The & Anor – Police Quarry 11. Indermaur v Dames – Mother of Invitees (pipe on head) 12. HAWKINS V. COULSDON & PURLEY UDC [1954] – knowledge for visitors, warn 13. LONDON GRAVING DOCK CO V. HORTON [1951] – welder knew 14. Stowell v railway Executive – Oil splatters 15. Christmas v General Cleaning Contractors; 16. Takong Tabari v Gov Of Sarawak 17. Yap Cheng Hock v Kajima Taisei Joint Venture ;Syed Agil Barakbah J ; definition, knowledge of plaintiff, knowledge of defendant. 18. Robbert Addie & Sons Ltd v Dumbreck ; Lord Hailsham LC ;licensee duty ; concealed danger, duty owed trespasser none. 19. LATHAM V. R. JOHNSON & NEPHEW LTD – element of surprise – concealed danger. 20. DATUK BANDAR , DEWAN BANDARAYA KUALA LUMPUR V. ONG KOK PENG – no notice given, 21. China Insurance Co Ltd v Woh Yup – electric cables are a concealed danger. 22. Khoo Ting Hing v Som Guan Soon ; duty not to deliberately harm. 23. of British Railways Board v Herrington (1972) – Lord Reid – knowledge, skill, resources, 24. Lembaga Letrik Negara v Ramakrishnan allurement; follow Lord reid.

Trespasser 1. No duty 2. A conscienti ous man with his knowledge , skill and resources could reasonably have been Licensees expected 1. Reasonable steps to be to done avoid damage espc if danger is obvious. 2. Not to expose him to hidden perils , and to warn him of existing traps or concealed danger. 3. Not to create traps or allow concealed danger to exist Invitees With reasonable care that any danger which is known (or ought) and which visitor is ignorant of is averted whether by notice etc. AND Duty owed to prevent damage arising from unusual danger or unusual risk. Contractual Premises is safe and adequate for the purposes for which it is contracted out.

Occupiers' liability is a tort of that is concerned on the duty of care owed by those who occupy real property, through ownership or lease, to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. An occupier is generally the party who has actual possession of the premises in which the plaintiff has suffered injury from.

1. Definition of “Occupier”. In order to establish liability on the occupier Lord Denning has established the control test as laid down in the case of Wheat v Lacon. Wheat v Lacon [1966] The claimant and her family stayed at a public house, The Golfer’s Arms in Great Yarmouth, for a holiday. Unfortunately, her husband died when he fell down the stairs and hit his head. The stairs were steep and narrow. The handrail stopped two steps from the bottom of the stairs and there was no bulb in the light. The claimant brought an action under the Occupiers Liability Act 1957 against the Brewery company, Lacon, which owned the freehold of The Golfer’s Arms and against the Managers of the Pub, Mr & Mrs Richardson, who occupied the pub as a licensee.

Held: Lord Denning: “wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an " occupier " and the person coming lawfully there is his " visitor ": and the " occupier " is under a duty to his " visitor " to use reasonable care. In order to be an " occupier " it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be " occupiers ". Hence: An occupier is therefore someone who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons. – (The occupational control test. -presence in, use of and activity on premise).

Harris v Birkenhead [1976] Held: The Council had the legal right to take possession to secure the property, actual physical occupation was not required to incur liability as an occupier. The council were therefore liable.It is said that physical control isn’t a necessary ingredient. (Child hurt when building was abandoned). Liable. Lord Denning then further explained that it is categorized in 4 parts ; a) If the owner of the premises rents out the premises permanently to a tenant he no longer has control b) If the owner rents out a portion of his premises then he is assumed to have possession and control of the portion where he has rented out c) If he allows a person to occupy his premises and he still has access to ensure repair works are executed he still has control d) If he hires an independent contractor on his premises he is deemed to have control Mohd Sainudin Ahmad v Consodilated Hotels 1991The plaintiff was injured by the current operations at the premises, and the current opertations were not carried out by the first defendant, but by the main contractor or others on its behalf. It is therefore irrelevant whether or not the first defendant was at the material time an occupier of the premises… the main was an independent contractor and the first defendant cannot be vicariously liable for any negligent act or omission of the main contractor. Chong Fah Lin v United Engineers (M) Sdn Bhd held if a contractor had overall charge and control and possession of a construction site, then he may be deemed to have occupation as well as possession of the site, together with overall responsibility. 2. Definition of “Premises”. Premises on the other hand includes all forms of buildings land spaces, vehicles which are used for carrying persons and even structures. In Wheeler v Copus 1981 ; a ladder is deemed to have been constituted as a form of premises.

Types Entrants. – Depending -duty owed is different.

Entrants DATUK BANDAR KUALA LUMPUR V. ONG KOK PENG [1993] Supreme Court : Speaking of plaintiffs entering premises, the liability of occupiers of such premises to take care exists but it depends on a character in which they have entered them. First, we have people who enter them by virtue of a contract, such as guests in a hotel, secondly we have people who enter them on business of interest, both to such persons as well as the occupiers, eg. a customer going into a shop to view goods They are invitees; thirdly we have persons who enter them with the express or implied permission of the occupiers, without either a contract, nor such community of interest, they are called licensees and fourthly, they are persons who enter as trespassers. In the order we have mentioned such persons, the duty of care is cast in a descending scale, the highest duty of care being towards persons who enter the premises by virtue of a contract and not so high in the case of invitees and so on.

1. Contractual MACLENAN V. SEGAR 1972 – plaintiff caught on fire at the defendants hotel and theres no fire escape. Court held the defendant liable for failing to ensure the premises are safe for habitation as theres no emergency exit. McCardie : Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it is provided to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them. Gilmore v London County Council – the plaintiff won the claim against defendant for the latters failure to ensure the floor was suitable for physical exercise class as it was slippery. It is said that the standard of care required for contractual entrants are the highest amongst all the danger does not have to be unusual or hidden before the occupier can be found liable. The occupier must take all reasonable steps and exercise due diligence in order to make sure the premises are suited for habitation is free from harm or physical dangers. This is said in the case of Thomson v Cremin. The standard of care is to ensure that the premises are reasonably safe for that intended purpose.

2. Invitee a. Legally Authorized; Shamsuddin v Yap Choh The & Anor ; police was required to monitor a quarry explosion. Held ; Police was an invitee and duty of care was owed so that he would not be injured by any negligent method. b. Business Visitors ; Indermaur v Dames , plaintiff fell through a hole in the floor and injured himself trying to fix gas pipes at the defendants factory. Court held that it is unusual danger which was in fact known to the defendant and they must reasonably avoid any damage that could arise from an extraordinary danger that is known to him. Willes J : …use reasonable care to prevent damage from unusual danger which he knows or ought to know. Occupier will be liable if i)

They know of the danger or have knowledge HAWKINS V. COULSDON & PURLEY UDC [1954] if the occupier actually knows the physical condition of the premises, and a reasonable man would have realised that it was a danger, he is under the duty to warn a visitor unless the danger is obvious.

ii)

The danger is of unusual sense having regard to the circumstances LONDON GRAVING DOCK CO V. HORTON [1951] though what is unusual will, of course, vary with the reasons for which the invitee enters the premises. Stowell v railway Executive; Oil splatters were considered unusual at a train platform. Christmas v General Cleaning Contractors; broken windows is not considered unusual for window cleaner. Takong Tabari v Gov Of Sarawak ; gas leakage causing an explosion at a bank was unusual. And failure of bank to take reasonable care………

iii)

Danger isn’t known to the plaintiff ; If known, action will fail. London Graving Dock v Horton ; welder was held to be aware of said danger.

iv)

Occupier failed to reasonably avoid the damage from occurring through notice etc

3. Licensee Yap Cheng Hock v Kajima Taisei Joint Venture ;Syed Agil Barakbah J ; He is there with the permission of the occupier given as a matter of grace or pleasure and

not as a matter of business (not an invitee nor contractual); lawfully on the premise (not a trespasser), Three types of Licensee; 1. Entrant as of Right ; carry out inspection when exercising reasonable care to avoid damage. 2. Social Visitors ; Pemission or by invitation. – yeap cheng hock v kajima taisei joint venture. 3. Entrant by implied permission .Robert Addie and Sons.

Duty owed to licensee; Robbert Addie & Sons Ltd v Dumbreck ; Lord Hailsham LC ; in the case of licensee – the occupier has no duty to ensure the premise is safe, but he is bound not to create a trap or allow a concealed danger to exist upon the said premises, which is apparent not apparent to the visitors, but which is known or ought to be known by the occupier. An occupier will be held liable if ; 1. occupier has knowledge of the danger or ought to know the existence of the danger, he has a duty to warn the visitor. HAWKINS V. COULSDON & PURLEY UDC Yeap Cheng Hock v Kajima Taise’ if the occupier knew of the physical facts constituting the danger =, and a reasonable man with that knowledge would have known those facts would be a trap or a concealed danger ; then he had knowledge even if he did not think so (trap). 2. bahaya tersebut adalah tersembunyi; it is a concealed or hidden danger LATHAM V. R. JOHNSON & NEPHEW LTD Hamilton LJ : It involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking a reality of danger. China Insurance Co Ktd v Who Hup (Pte) Ltd ; electric cables on he ground are a concealed danger. 3.

licensee not ought to have known of such danger

If the licensee knows or ought to have reasonably known of the danger, the danger ceased to be a concealed danger – Yeap Cheng Hock v kajima Taise. 4. Occupier fails to warn the licensee of such danger eg ; notice/warning

DATUK BANDAR , DEWAN BANDARAYA KUALA LUMPUR V. ONG KOK PENG – left fell down while visiting a friend as theres no lift behind the door. No

warning sign or guard or barricade was put up about the lift being out of order. Court held that plaintiff was a licensee of the defendant the latter owed a duty to not expose him to hidden perils and to warn him of existing traps or concealed danger and the defendant had failed to discharge this duty. , court held that electric calbes lying on the ground across the path used by workmen who were licensees constituted a concealed danger eventhough they were obvious.

4. Tresspassers Robert Addie Sons ltd v Dumbreck – court stated in general an occupier doesn’t owe a duty to trespasser as he entered without permission and is therefore assumed to have accepted all the risks and dangers there is on the property. There must be an act done with the deliberate intention of doing harm to the trespasser, or at keast some act don’t with reckless disregard of the presence of the trespasser. Khoo Ting Hing v Som Guan Soon ; duty not to deliberately harm.

Overruled in the case of British Railways Board v Herrington (1972)– 6 yo injured when he entered the defendants land and accidentally stepped on electric railway tracks. HOL stated eventhough occupier didn’t owe a duty they must take reasonable steps or common humanity to avoid danger or to give warning to people who might be on his premises. Lord Reid : ..an occupier’s duty to trespasser must vary according to his knowledge, ability and resources…whether an occupier is liable in respect of the accident to a trespasser on his land would depend on whether a consciences humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that a trespasser would come, I think that most people would regard as culpable failure to give any thought to their safety.

Lembaga Letrik Negara v Ramakrishnan – 10 y/o climbed on an electric pole to free a trapped bird and got electrocuted and suffered injuries. Principles in British Railway Boards were applicable.

Child Trespasser – Allurement factor. Occupier must accept that children are less careful as compared to adults. Duty depends what he reasonably knew and could expect.