Occupiers Liablity

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

Test of control
- The concept of an occupier relates to the control exercised
by the person over the premise.
- Control: When a person has the right to allow people
in and restrict people from leaving.
- Once it is established that a person has sufficient
control over the premise, he is deemed to be the
occupier.
- 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.

Entrants
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:
1. Contractual entrants
- Arises from an agreement or contract between the
parties and is based on contractual rights.
- The highest duty of care is owed to contractual
entrants.
- There are two types of contractual entrants:
- Main purpose entrants
- Enters the premise for the purpose of
occupying it and has paid to be on the
premise.
- E.g: A tenant or a guest at a hotel.
- Duty of care owed: To take such care as
in all the circumstances of the case
reasonable to see that the visitor will be
reasonably safe in using the premises for
which he is invited or permitted or
contracted by the occupier to be there.
- MacLennan v Sinclair
The court held the defendant liable for the
injury that the plaintiff suffered during a
fire as they failed to ensure the safety of
the guests by not having an emergency
exit in the hotel.
- Ancillary purpose entrants
- A person who has paid to be on the
premises for a primary purpose other than
as a personal dwelling.

- E.g: A spectator at a sports event, a

passenger on a bus, a patron at the
cinema.
- Duty of care owed: To take such care as
in all the circumstances of the case
reasonable to see that the visitor will be
reasonably safe in using the premises for
which he is invited or permitted or
contracted by the occupier to be there.
- Gilmore v London County Council
The court held the defendant liable for the
injury that the plaintiff suffered when she
fell on a slippery floor as they failed to
ensure the suitability of the premise for a
physical fitness class.
2. Invitees
- A person who enters the premises of the occupier
with his consent in the pursuit of a common interest
with the occupier.
- There are two types of invitees:
- Legally authorized entrant
- A person who enters the premise as a
matter of law (where statutes allow them
to enter)
- E.g: Police, fire-fighters, health inspectors.
- Business visitors or associates
- A person who enters the premise, whether
it is public or private, for a materialistic
reason,
and
brings
economic
advantage to the occupier.
- 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.

- 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)
- 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.
- 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.
- 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. Licensees
- A person who has the permission of the occupier to
be on the premises for a purpose for which the
occupier has no interest.
- There are three types of licensees:
- Those entering as of right
- E.g: Entering public places such as the
library, pool.
- Different from having to pay a substantial
amount like contractual entrants
- Licensees only pay a token amount
- Those entering by implied permission
- E.g: Entering elevators

- Those entering as mere social visitor

- E.g: A family coming to visit
- Duty of care owed: A licensee must take the
premises as he finds them, subject to the occupiers
duty to warn him of concealed dangers, not to set
traps and not to injure the licensee by any positive
act.
- Two factors:
- The occupiers knowledge: Where the
occupier had actual knowledge of the
danger or ought to have known of it
- 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.
- 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.
- Child licensees
- An occupier must be prepared for children who
enter the premise to be less careful than adults
- A child cannot be expected to be aware of
dangers that may be obvious to adults
- Duty of care owed: Similar duty owed to adult
licensees.
- Must put into further consideration:
- Whether an object is an allurement or
not is determined by looking at the age of
the child

- That reasonable parents will not permit

their children to be sent into danger
without protection
- The primary responsibility to ensure
the safety of the children is upon the
parents
- Places where children are allowed to
wander unaccompanied by adults may be
significant
- 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.
4. Trespassers
- 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.
- Duty of care owed:
- 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.
- There are three requirements:
- Occupier must be aware of the
danger or have reasonable grounds
to believe it exists.
- Occupier knows or has reasonable
grounds to believe that the entrant
is in the vicinity or may come into
the vicinity concerned.

- The risk is one against which, in all

circumstances of the case, the
occupier may reasonably be expected
to offer the non-visitor some
protection.
- 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.

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

Defences
1. Warnings
- An
attempt
to
fulfil
ones
obligation
by
supplementing the physical state of ones premises
with helpful information for the visitors.
- For children a written or oral warning may be
insufficient.
- TEST: Whether the warning had the effect of
enabling the visitor to be reasonably safe.
2. Notice
- 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.
- 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.

3. Volenti Non Fit Injuria

- No duty is owed to any person in respect of a risk
willingly accepted.
4. Exclusion clause
5. Contributory Negligence
Remedies
1. Damages
2.

Injunction