Tort of Negligence: Occupier’s Liability



In mid-October 2022, two people were injured when a lift they were riding plunged down from the eighth floor to the ground floor of a Condominium in Brickfields, Kuala Lumpur. [1] Who is liable for this accident?


Before we proceed to initiate any legal proceedings, we need first to identify the parties that are liable for the incident. In this article, we will briefly discuss the relevant law applicable to explain the cause of action before initiating any legal action. The answer for the question posted earlier depends on who has control over the building/premises.


In Malaysia, there are no corresponding statutes enacted so the law on occupier’s liability is based on common law principles. As such, cases on occupier’s liability would therefore come under the tort of negligence.


The meaning of Occupiers


In general, it is settled law that a person who has sufficient degree of control over a premise is considered as an occupier. An occupier’s liability arises in a situation where the premise is not safe as it should reasonably be, and this defective state causes injury or damage to the entrants/visitors. Before we proceed further, we need to understand the meaning of an occupier which will be explained in detail herein.


Lord Denning in Wheat v. E Lacon & Co Ltd [1966] AC 552 has outlined the meaning of Occupiers as follows:


"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. Whenever 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 is that he has some degree of control. He may share the control with others. Two or more maybe occupiers...


In Salmond on Torts, 14th edn (1965) p 372, it is said that an "occupier" is "he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons."... There is no doubt that a person who fulfills that test is an "occupier". He is the person who says "come in". But I think that test is too narrow . There are other people who are "occupiers" even though they do not say "come in". If a person has any degree of control over the state of the premises it is enough.


In reference to the case of Chang Fah Lin V. United Engineers (M) Sdn Bhd & Ors [1976] 1 MLRH 4, the court has held as follows:-


‘…There is merit in the proposition and I am disposed to hold that the first defendant was in fact the occupier by reason of the fact that being the principal contractor they had overall charge and control of the whole construction and had possession of the construction site. It is also established that only a small part of the works was sub-contracted to the second defendant. The first defendant clearly had exclusive occupation as well as possession of the construction site and also had the overall responsibility ‘


The Premises


Premises include all forms of buildings, land spaces, vehicles which are used for carrying persons, and structures such as scaffolding, ladders, walls, pylons and grandstands.


Type of Entrants


They are two broad categories of people that entered your premise which are visitors and trespassers. Visitors are people who have permission to enter your premise and normally have been expressly invited or licensed to enter your premise (invitees and licensee). Meanwhile trespassers are individuals who enter the premises without the occupiers’ express or implied permission.


Duty of Care


The occupier has a general duty of care to ensure that the premise is safe for visitors and the occupier must employ, take reasonable steps and expertise in performance of this duty.


The law of occupier's liability is stated by the Federal Court in Lee Lau & Sons Realty Sdn Bhd v. Tan Yah & Ors [1983] CLJ Rep 222; [1983] 2 MLJ 51 following Indermaur v. Dames [1866] LR IPC where the duty of an occupier to its invitee was stated as follows:


And with respect to such a visitor at least, we consider it is settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damages for unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact...


An occupier possesses a duty to take reasonable effort and care to ensure the safety of visitors on the premises. The degree of care which qualifies as ‘reasonable’ depends on the foreseeability of harm being incurred; the more serious the danger, the greater the obligation to avoid it[2].


It is pertinent to highlight as to the extent of a duty owed by the occupier to the invitees/entrants. In Lee Lau & Sons Realty Sdn Bhd (supra) the Federal Court said an occupier's duty is confined to protection against "unusual" dangers. The following statements of the House of Lords in London Graving Dock Co Ltd v. Horton [1951] AC 737 in relation occupier's liability were approved:


An "unusual" risk is one which is not usually found in carrying out the task which the invitee has in hand.... The occupier has no duty to the invitee unless there is unusual danger which he knew or ought to have known.... An occupier owes no duty to an invitee in respect of "usual" dangers since the invitee is only entitled to expect that the invitor (occupier) will take care to prevent damage from "unusual" danger.


Defences


An occupier who is being sued may raise the defence of volenti non fit injuria which is a common law doctrine which states that if a person willingly puts himself in position where harm might result, or knowing there might be some degree of harm as a result, he is not able to bring a claim in tort. For example, if a trespasser sneaks onto the rooftop of a building and shoots videos of himself walking along the edge for entertainment purposes, he is putting himself at significant degree of harm and the occupier cannot be held responsible for such actions. Another potential defense that the occupier may use is by taking steps to seal off potential areas at risk and place sufficient notice or warning.


Conclusion


An occupier has a general duty of care to all persons on their premises or in its vicinity to ensure their safety. In the event that the invitee or entrant suffered injury within the compound of the occupier, the occupier may be liable if it did not take adequate care from preventing such injuries from happening.


In reference to the question posted earlier regarding the lift incident, the injured passengers may claim for damages against the Management (as the occupier of the building) if it is found that the Management failed to maintain the servicing of the lifts or it is made known that the lift is not safe. The Management may also consider including the company responsible for maintaining the lift as the lift maintenance company has a duty to perform its job competently to ensure the lift is fit for purpose.


Case referred;

  1. Wheat v. E Lacon & Co Ltd [1966] AC 552

  2. Chang Fah Lin V. United Engineers (M) Sdn Bhd & Ors [1976] 1 MLRH 4

  3. Lee Lau & Sons Realty Sdn Bhd v. Tan Yah & Ors [1983] CLJ Rep 222; [1983] 2 MLJ 51

[1] https://www.thestar.com.my/news/nation/2022/10/15/two-seriously-injured-after-lift-plunges-from-eighth-floor-of-kl-condominium [2] Southern Portland Cement Ltd v Cooper [1974] 1 MLJ 194


Authored by Zarul Farrid


Edited by Kevin Wu


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