Occupier's Liablity

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Occupier's Liablity by Mind Map: Occupier's Liablity

1. Definition

1.1. It concerns the liability of an occupier to persons who are injured on his premises.

1.2. “Occupier” according to Lord Denning in Wheat v Lacon: “Occupier is simply a convenient word to denote a person who has sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on the premises.”

2. Test of control

2.1. The concept of an occupier relates to the control exercised by the person over the premise.

2.1.1. Control: When a person has the right to allow people in and restrict people from leaving.

2.1.2. Once it is established that a person has sufficient control over the premise, he is deemed to be the occupier.

2.2. Wheat v Lacon: The court held that although a license to use the first floor was given to the manager and his wife, the defendant had equal and sufficient control over the private premise on the first floor together with the manager, thus making both parties occupiers, and therefore, jointly liable for the death of the plaintiff.

3. Entrants

3.1. According to Peh Swee Chin SCJ in Datuk Bandar, Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor, there are four types of entrants, each with a duty of care owed:

3.1.1. 1.Contractual entrants

3.1.1.1. Arises from an agreement or contract between the parties and is based on contractual rights.

3.1.1.2. The highest duty of care is owed to contractual entrants.

3.1.1.3. Two types of contractual entrants:

3.1.1.3.1. 1) Main purpose entrants

3.1.1.3.2. 2) Ancillary purpose entrants

3.2. 2. Invitees

3.2.1. A person who enters the premises of the occupier with his consent in the pursuit of a common interest with the occupier.

3.2.2. Two types of invitees:

3.2.2.1. 1) Legally authorized entrant

3.2.2.1.1. A person who enters the premise as a matter of law (where statutes allow them to enter)

3.2.2.1.2. E.g: Police, fire-fighters, health inspectors.

3.2.2.2. 2) Business visitors or associates

3.2.2.2.1. A person who enters the premise, whether it is public or private, for a materialistic reason, and brings economic advantage to the occupier.

3.2.2.2.2. E.g: A customer at a supermarket, a motorist at a petrol station, a customer a bank, an employee at work, a football player at a stadium.

3.2.3. Duty of care owed: An occupier owes his invitees a duty to take reasonable care to prevent injury from unusual danger of which he knows or ought to know. (An occupier is required to be familiar with his premise)

3.2.3.1. Unusual danger: Extraordinary danger that is not common for the purpose of a particular invitee. A danger which is not usual or expected in carrying out the task.

3.2.4. Indermaur v Dames: The court held the defendant liable for the injury suffered by the plaintiff from falling through a hole in the floor as it was an unusual danger which was known to the defendant.

3.2.5. Takong Tabari v Government of Sarawak & Ors: The court held the defendant liable for the death of the bank customer arising from the gas leakage which caused an explosion as it was an unusual danger which was known or ought to have been known by the defendant.

3.3. 3. Licensees

3.3.1. A person who has the permission of the occupier to be on the premises for a purpose for which the occupier has no interest.

3.3.2. Three types of licensees:

3.3.2.1. 1) Those entering as of right

3.3.2.1.1. E.g: Entering public places such as the library, pool.

3.3.2.1.2. Different from having to pay a substantial amount like contractual entrants

3.3.2.1.3. Licensees only pay a token amount

3.3.2.2. 2) Those entering by implied permission

3.3.2.2.1. E.g: Entering elevators

3.3.2.3. 3) Those entering as mere social visitor

3.3.2.3.1. E.g: A family coming to visit

3.3.3. Duty of care owed: A licensee must take the premises as he finds them, subject to the occupier’s duty to warn him of concealed dangers, not to set traps and not to injure the licensee by any positive act.

3.3.3.1. Two factors:

3.3.3.1.1. The occupier’s knowledge: Where the occupier had actual knowledge of the danger or ought to have known of it

3.3.3.1.2. Concealed danger: It is hidden and an element of surprise. It is sufficient that the licensee was not aware or was not expected to be aware of the danger.

3.3.4. Datuk Bandar, Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor: The court held the defendant liable for the injury that the plaintiff suffered from falling down the shaft of a lift as it was a trap to which the defendant failed to warn the plaintiff about.

3.3.5. Child licensees

3.3.5.1. An occupier must be prepared for children who enter the premise to be less careful than adults

3.3.5.2. A child cannot be expected to be aware of dangers that may be obvious to adults

3.3.5.3. Duty of care owed: Similar duty owed to adult licensees.

3.3.5.4. Must put into further consideration:

3.3.5.5. Whether an object is an allurement or not is determined by looking at the age of the child

3.3.5.6. That reasonable parents will not permit their children to be sent into danger without protection

3.3.5.7. The primary responsibility to ensure the safety of the children is upon the parents

3.3.5.8. Places where children are allowed to wander unaccompanied by adults may be significant

3.3.5.9. Phipps v Rochester Corporation: The court held the defendant not liable even though the children suffered injuries as the defendant had a right to assume that reasonable parents would not allow their children to venture into open spaces without exercising any control or ensuring the safety of the place.

3.4. 4. Trespassers

3.4.1. A person who enters into a premise without permission, express or implied, from the owner and whose presence is either unknown to the proprietor or if known, is objected to.

3.4.2. Duty of care owed:

3.4.2.1. Duty of common humanity: A duty to take such care as is reasonable in all circumstances of the case that the non-visitor or trespasser does not suffer injury on the premises by reason of the danger concealed.

3.4.2.1.1. There are three requirements:

3.4.2.2. Must put into further consideration: An occupier not only has a duty not to have on his land objects that are dangerous, but also objects which are an allurement or invitation to them.

3.4.3. British Railways Board v Herrington: The court held the defendants liable for the injury suffered by a child who stepped on the electric railway tracks as the defendants must take reasonable steps of common humanity and common sense to avoid danger, or to give warnings to people who might be on his premises.

3.4.4. Glasgow Corporation v Taylor (Child trespassers): The court held the defendant liable as the poisonous berries, the consumption of which led to the child’s death, was a form of allurement which the defendant should have been aware of.

4. Defences

4.1. 1. Warnings

4.1.1. An attempt to fulfil one’s obligation by supplementing the physical state of one’s premises with helpful information for the visitors.

4.1.2. For children a written or oral warning may be insufficient.

4.1.3. TEST: Whether the warning had the effect of enabling the visitor to be reasonably safe.

4.2. 2. Notice

4.2.1. Where the occupier is not trying to be helpful or informative, but is just trying to escape from all liabilities by claiming that the plaintiff agreed not to sue for risks specified in the notice.

4.2.2. Ashdown v William Samuels & Sons Ltd: The court held that the defence of notice was successfully raised against the plaintiff who suffered injury from being on the premises as the notices were clear and sufficient to preclude the defendant from liability.

4.3. 3. Volenti Non Fit Injuria

4.3.1. No duty is owed to any person in respect of a risk willingly accepted.

4.4. 4. Exclusion clause

4.5. 5. Contributory Negligence

5. Remedies

5.1. 1. Damages

5.2. 2. Injunction