Published on June 8, 2020
1. AMALIA SULAIMAN UKM LAW SCHOOL 2020 UUUK2203-TORT LAW II A) OCCUPIER’S LIABILITY Definition: Occupier • The occupier of a house, flat, or piece of land is the person who lives or works there. • Synonyms: tenant, resident, renter, inhabitant • A party who exercises an element of control over premises. Occupier’s liability • The liability to the occupier for injury caused by the static state of the premises. • The duty owed by land owners to those who come onto their land. • The duty imposed on land owners can extend beyond simple land ownership and in some instances, the landowners may transfer the duty to others, hence the term occupier rather than owner. • The term occupier itself is misleading since physical occupation is not necessary for liability to arise. • Occupiers' liability is perhaps a distinct form of negligence in that there must be a duty of care and breach of duty, causing damage. • The rules of remoteness apply to occupiers liability in the exact same way that they apply to negligence claims. • Liability can arise on occupiers for omissions since their relationship gives rise to duty to take action to ensure the reasonable safety of visitors. Occupier’s Duty of care & Liability Duty owed by occupiers of land or premises towards visitors, whether invited or uninvited, whose presence is lawful or unlawful, who suffer injury during the course of their visit a person who is in control of land or property must conduct themselves in a certain manner, in order to avoid injuring others. Ex 1: A goes to B’s house. While climbing the stairs, the wooden stairs broke which resulted in the injury suffered by A. Thus, A could take action againts B under occupier’s liability. [stairs=static state of the premise] Ex 2: A goes to B’s house. Upon entering B’s house, B’s husband was reversing the car and did not see A house B. Upon entering B's house, husband B who is driving backwards who did not see A, hits A. A can take action of negligence against B.
2. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Differences between A and B: In (1) - A is injured by the static state of the premises. In (2) - A is injured by a moving object. CASE: Wheat v E Lacon & Co Ltd  AC 552 [occupational contro test] Facts: 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: Both the Richardsons and Lacon were occupiers for the purposes of the Occupiers Liability Act 1957 and therefore both owed the common duty of care. It is possible to have more than one occupier. The question of whether a particular person is an occupier under the Act is whether they have occupational control. Lacon had only granted a license to the Richardsons and had retained the right to repair which gave them a sufficient degree of control. There is no requirement of physical occupation. However, it was found that Lacon was not in breach of duty since the provision of light bulbs would have been part of the day to day management duties of the Richardsons. Since the Richardsons were not party to the appeal the claimant’s action failed. 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 ". And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.” Lord Denning divided the law into 4 categories: 1. When a landlord leases his premises permanently - the landlord loses control of the land, the tenant is the occupier. 2. When the landlord leases (rents) part of the building and retains the other - the landlord is the occupant of that particular subdivision under his control.
3. AMALIA SULAIMAN UKM LAW SCHOOL 2020 3.When a landlord allows a person to occupy his or her premises for non-permanent rent and the landlord still has the right to enter into the premises for the purpose of maintenance - the landlord has sufficient control to be considered himself as an occupier. 4. When the landlord hires an independent contractor to carry out work on his premises - the landlord has sufficient control to considered himself to be an occupier. CASE: Harris v Birkenhead  1 WLR 279 [physical occupation is not a requirement] Facts: The claimant Julie Harris was 4 years old when she wandered off from a children’s play park with her friend. They entered a derelict house which was due for demolition. The house had not been secured and the door was open. They went upstairs and Julie sustained serious injury when she fell from a window. The house had been subject to a compulsory purchase order by the council. The house had been owned by a private landlord and the tenant was offered alternative accommodation by the council. The tenant informed the council that she did not want to take up the offer of accommodation and made her own arrangements and left the property. The council served 14 days notice on the owner of their intention to take possession of the property, but never actually took physical possession at the expiry of the 14 days. Held: The Council had the legal right [legal ownership] to take possession to secure the property, actual physical occupation was not required to incur liability as an occupier. The council were therefore liable. Definition: Premise • Land and buildings • Temporary and mobile structures are included under this definition, such as scaffolding and ladders. Wheeler v Copas  3 All ER 405: Facts: The claimant was a builder working on the defendant’s property when he used a ladder which the defendant had lent to him. The ladder was too flimsy, and broke, injuring the claimant. The court noted that the ladder came under the definition of premises. Held: The defendant was found liable. Chapman J said: ‘The plaintiff puts his case to a considerable extent on the Occupiers’ Liability Act 1957, but it seems to me that there may be considerable difficulty in relation to that because the Act
4. AMALIA SULAIMAN UKM LAW SCHOOL 2020 is dealing with an occupier. It is true that it covers moveable structures, such as vessels, vehicles and aircraft. I do not doubt that in appropriate circumstances it could apply to a ladder, but I see considerable difficulty in saying that once the defendant had handed the ladder over to the plaintiff and his partner for the purpose of the bricklaying the defendant was still the occupier of this ladder.’ Types of Visitors • Contractual • Invitee • Licensee • Trespasser Occupier’s Duty of care towards visitors • Duty of care owed by occupiers depends on the categories of visitors –being an occupier normally gives rise to the foreseeability of damage to a visitor • the duty is based around preventing injury in visitors, rather than ensuring that premises are objectively safe. • injury suffered by the visitor usually resulted from some defect in the static condition of the premises rather than from any activity taking place there. • Thus, whilst a deep pit presents an objective hazard, the occupiers duty is based on ensuring nobody is injured by it (for example, by putting up warning signs or fencing it off.) CASE: Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor (1993) The plaintiff was injured after falling into the lift shaft of the flats owned by DBKL. There was no warning or barriers attached to the door of the lift to indicate that the lift was out of order. The machinery inspector had issued a letter as regards the fault but the defendant did nothing to repair the fault as quickly as possible. 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
5. AMALIA SULAIMAN UKM LAW SCHOOL 2020 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 express or implied permission of the occupiers, without either a contract, nor such community interest, they are called licensees and fourthly, they are persons who enter as trespassers. In 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 contarct and not so high in the case of invitees and so on. DUTY OF CARE SCALE: HIGHEST TO LOWEST 1. CONTRACTUAL VISITORS (GUESTS IN A HOTEL) Occupier must ensure that the premises are safe and appropriate for the purpose of entry. Occupier must exercise the necessary skills and precautions to make the place safe. CASE: MACLENAN V. SEGAR  2 KB 325 Facts: A fire broke out at the D's hotel & the P was injured while he was trying to escape from the second floor of the building. The court found the D liable for failing to ensure that the premises was safe for habitation, as there was no emergency way out. CASE: GILMORE V. LONDON COUNTY COUNCIL  4 All ER 33 P fall during an exercise class as rhe floor was slippery. She successfully claimed against the D for the latter's failure to ensure that the floor was suitable for physical exercise. Exclusion of duties on contractual visitors • When the contract exempt occupants from contractual visitors • When the injury is due to the part of the premises being leased to the occupant
6. AMALIA SULAIMAN UKM LAW SCHOOL 2020 2. INVITEES VISITORS (CUSTOMER IN SHOP) The person entering the premises with the consent of the occupant and has common interest with the occupant. Categories of Invitee i) Legally authorised entrants • those who maintain a right to enter land or property regardless of the occupier’s wishes • police officers (with a warrant or chasing a fugitive), firefighters attending a fire, and public utilities employees attending to read meters etc. CASE: SHAMSUDIN V YAP CHOH THE  1 MLJ 26 The police who enter the premises with the purpose of carrying out their duties are the invitee Therefore, the occupier has a duty of care to the police officer to ensure he is not injured ii) Business visitors • includes premises whether public or private, for the purpose of doing business / having financial interests with residents • Ex: buyers, car owners at ptrol stations, bank customers Occupier’s Duty to Invitee CASE: INDERMAUR V. DAMES (1866) LR 1 CP 274 Willes J; “And, with respect to such a visitor at least, we consider it 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 damage from 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.’ and ‘We consider it sound law that such visitor, 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 damage from unusual danger which he knows, or ought to know, and which the other party does not know.’
7. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Summary: Occupier will be liable to the invitee if: 1. The occupier actually knows / should have known about the danger. 2. The danger is so unusual for the plaintiff that it is not uncommon to have a task in question in regard to the plaintiff's circumstances & knowledge 3. The danger is unknown to the Plaintiff 4. Occupier fail to use reasonable skills to prevent such hazards from occurring, such as notice, lighting, installation of guards etc. [Electric fence, guard dog etc.] CASE:HAWKINS V. COLUSDON & PURLEY UDC  1 QB 319 Lord Denning: ‘…if the occupier actually knows the physical condition of the premises, and a reasonable man would have realised that it was a danger, the occupier must be taken in law to have realised it too…once the occupier has the actual knowledge of the state of affairs existing on his land he is under a duty to warn a visitor of it unless, of course the danger is obvious…’ EXTRAORDINARY DANGER CASE: LONDON GRAVING DOCK CO. V HORTON  AC 737 Lord Porter; ‘ I think ‘unusual’ is used in the objectives sense and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand, though what is unusual will, of course, vary with the reasons for which the invitee enters the premises.’ The court will test whether it is an extraordinary danger OR not by reference to whom P is taking nto account the circumstances of the place & knowledge of P. CASE: STOWELL V. RAILWAY EXECUTIVE  2 KB 579 Oil spills are considered as a extraordinary danger to P who is waiting for his partner. CASE: CHRISMAS V. GENERAL CLEANING CONTRACTORS  2 KB 164
8. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Broken windows are not considered as an extraordinary danger to window cleaners. But P succeeded in compensating employers for failing to provide safety tools for their work. CASE: LEE LAU & SONS REALTY SDN BHD V. TAN YAH & ORS  2 MLJ 51 The principles in the Indermaur v Dames case was applied. The dangerous premise are not enough to create an extraordinary danger Lifting a forklift using two rubber tree stumps to support heavy metal does not create any extraordinary danger, it is just a common hazard of looking at a job and should be a concern for P. See the case of Takong Tabari v Govt of Sarawak & ors. In this case the premises are used for the banking business and the customer does not expect there to be anything dangerous like gas on the premises. Thus, in this case, the inherent danger is described as "unusual" and unknown to P but foreseeable by the bank. PLAINTIFF’S KNOWLEDGE If P is aware of such a danger, then that danger is not an extraordinary danger. 3. LICENSEE (OBTAINED PERMISSION BY OCCUPIER) There are 3 categories of licensees: 1. The person who enters the premises based on rights • They have the right to enter public premises such as parks, public libraries. • Their entry is free 2. Social visitors • they enter the premises with the consent of the resident / by invitation of no financial interest to the occupier • Ex- guests, friends.
9. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Occupiers can limit the extent of an express invite in terms of place, behaviour or time. E.g: someone who is invited to a dinner party can attend with express permission, but they cannot refuse to leave at the end, smash the host’s windows and then climb up onto the roof. Someone who deviates from such instructions will be considered a trespasser CASE: The Carlgarth  P 93 – The claimant’s ship filled with water and sank whilst travelling down the defendant’s channel of water. Whilst the ship was invited to use the channel, it had navigated in an irregular manner (causing the sinking.) Thus, because the ship was acting in a manner other than that which it had permission to, the occupier of the channel could not be held liable. – Scrutton LJ at 97: “When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use the staircase in the ordinary way in which it is used.” 3. Entry through implied consent. Visitors enter the premises in situations where the court implies a consent The court will decide whether there is an implied consent In this case, the visitor enters the premises in the event that there is no real ban on the occupants. Eg: – Postman : Impliedly for a postman to use the front entrance. Natural limitation which will apply for many forms of implied permission – so a postman will likely be considered to have implied permission to access the front of a property, but this permission will not extend to the postman going round the back of the property and playing on the owner’s swing-set for an hour. Again, a visitor who exceeds the limitations of implied permission will be considered a trespasser. CASE: Lowery v Walker  AC 10 – A path running across the defendant’s field was used as a shortcut by several people to get to a nearby railway station. The defendant knew about this, and objected to it, but had not taken
10. AMALIA SULAIMAN UKM LAW SCHOOL 2020 any steps to stop it from occurring. One day, he put a wild horse in the field, which attacked and injured the claimant. The courts held that since the defendant knew about the trespassers, but did nothing about it, this amounted to implied permission. The defendant was, thus, held liable. – *Implied permission/consent can come into being if an occupier knows that their land is being used by trespassers, but does nothing to prevent their activities CASE: YAP CHENG HOCK V. KAJIMA-TAISE JOINT VENTURE  1 MLJ 230 Syed Agil Barakbah J: “At common law licensee is one who is lawfully on the premises, in the sense that he is not a trespasser, but does not come within the description of an invitee because he does not enter on business which concerns the occupier. He is there with the permission of the occupier given as a matter of grace or pleasure and not as a matter of business.” OCCUPIER’S DUTY ON LICENSEE CASE: ROBBERT ADDIE & SONS (COLLIERIES) LTD V. DUMBRECK  AC 358 Lord Hailsham LC: “In the case of persons who are not there by invitation, but who are there by leave and license, express or implied, the duty is much less stringent- the occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitors, but which is known /ought to be known to the occupier.’ The occupier will be liable to the licensee if: 1.The occupier knows about the danger / should know about the danger 2.The danger is hidden 3.P does not know / cannot know about the danger. 4. Occupier failed to warn of the existence of such hazards.
11. AMALIA SULAIMAN UKM LAW SCHOOL 2020 OCCUPIER’S KNOWLEDGE CASE: HAWKINS V. COULSDON & PURLEY UDC Lord Denning; • “…if the occupier actually knows the physical condition of the premises, and a reasonable man would have realised that it was a danger, the occupier must be taken in law to have knowledge of the danger, because he ought to have realised it too…once the occupier has actual knowledge of the state of affairs existing on his land, then if he knows or ought to know it is a danger he is under a duty to warn a visitor unless, of course the danger is obvious…” CASE: YEAP CHENG HOCK V KAJIMA-TAISEI JOINT VENTURE If the occupier knew of the physical facts constituting the danger, and a reasonable man with that knowledge would have appreciated that those facts constituting a trap or a concealed danger, then the occupier had knowledge of the danger even if he himself did not appreciate that they did so. DEFINITION OF CONCEALED/HIDDEN DANGER CASE: LATHAM V. R. JOHNSON & NEPHEW LTD  1 KB 398 It involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking a reality of danger. PLAINTIFF’S KNOWLEDGE If P knew / should have known of the existence of the danger, the occupier would not have duty of care to licensee. CASE: MERSEY DOCKS & HARBOUR BOARD V. PROCTOR  AC 253 • Lord Sumner: • “A licensee takes premises, which he is merely permitted to enter, just as he finds them. The one exception to this is that, as it is put shortly, the occupier must not lay a trap for him or expose him to a danger not obvious nor to be expected there under the circumstances. If the
12. AMALIA SULAIMAN UKM LAW SCHOOL 2020 danger is obvious, the licensee must look out for himself; if it is to be expected, he must expect it and take his own precautions. TRESPASSERS (UNLAWFUL VISITOR/ILLEGAL ENTRY/UNWANTED VISITOR) Categories of trespassers 1. A trespasser from the beginning @ trespasser ab initio [The six carpenter’s case] 2. Trespassing over time limit / entry purpose. OCCUPIER’S DUTY OF CARE TOWARDS TRESPASSERS CASE: ROBBERT ADDIE & SONS (COLLIERIES) LTD V. DUMBRECK Lord Hailsham LC: Towards the trespasser that an occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger. The trespasser comes on the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilfull act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser. Summary: This means that the occupier has no duty to take reasonable steps to protect the intruder. Occupier is only liable if he does something intentionally with the intent to harm the trespasser or the occupier was reckless. CASE: COMMISSIONER FOR RAILWAYS V. QUINLAN  AC 1054 [Apply the principle in R Addie v Dumbreck] Viscount Radcliffe (New South Wales) The plaintiff, a trespasser was hit by the occupier’s train. He succeeded at trial and on first appeal.
13. AMALIA SULAIMAN UKM LAW SCHOOL 2020 Held: A mere failure to exercise reasonable care was not a basis for claim by a trespasser, there must: ‘be injury due to some willful act involving something more than the absence of reasonable care. There must be some act done with deliberate intention of doing harm or at least act done with reckless disregard of the presence of the trespasser, – reckless disregard of ordinary humanity towards him’. Viscount Radcliffe held: ‘trespasser to whom the occupier is accountable for his actions, even if dangerous’, is one of whose presence he actually knows or one whose presence at the time of injury can fairly be described as extremely likely or very probable. To go further is to accept the proposition that a trespasser who insists on forcing himself on to the occupier’s premises and lets him know that he intends to enter in this way can impose on the latter, against his will, a duty to take precautions and have care which may seriously impede the conduct of his lawful activities. In their lordships’ opinion the law does not admit of this result. CASE: BRITISH RAILWAY BOARD V. HERRINGTON  1 All ER 749 [dismissed the principle in R. Addie v Dumbreck] A six year old boy was electrocuted and suffered severe burns when he wondered from a play park onto a live railway line. The railway line was surrounded by a fence however, part of the fence had been pushed down and the gap created had been used frequently as a short cut to the park. The defendant was aware of the gap in the fence which had been present for several months, but had failed to do anything about it. Under existing authority of Addie v Dumbreck no duty of care was owed to trespassers. However, the House of Lords departed from their previous decision using the 1966 Practice Statement and held that the defendant railway company did owe a duty of common humanity to trespassers. • Lord Pearson: "It seems to me that the rule in Addie v. Dumbreck has been rendered obsolete by changes in physical and social conditions and has become an incumbrance impeding the proper development of the law. With the increase of the population and the larger proportion living in cities and towns and the extensive substitution of blocks of flats for rows of houses with gardens or back yards and quiet streets, there is less playing space for children and so a greater temptation to trespass. There is less supervision of children, so that they are more likely to trespass. Also with the progress of technology there are more and greater dangers for them to encounter by reason of the increased use of, for instance, electricity, gas, fast moving vehicles, heavy machinery and poisonous chemicals. There is
14. AMALIA SULAIMAN UKM LAW SCHOOL 2020 considerably more need than there used to be for occupiers to take reasonable steps with a view to deterring persons, especially children, from trespassing in places that are dangerous for them. In my opinion the Addie v. Dumbreck formulation of the duly of occupier to trespasser is plainly inadequate for modern conditions, and its rigid and restrictive character has impeded the proper development of the common law in this field. It has become an anomaly and should be discarded." • 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. This is a subjective test: e.g. If by looking into the circumstances of each particular case the occupier could, at small trouble and expenses, take some effective action, then the answer would be; it would be inhumane and culpable not to take that action. • Lord Morris: Duty to take such steps as common sense or common humanity would dictate. • Lord Wilberforce: What is reasonable depends on the nature & degree of the danger. It also depends on the difficulty and expense of guarding against it. The law…takes account of the means and resources of the occupier or other person in control- what is reasonable for a railway co. may not be reasonable for a farmer. SUMMARY: 4 Factors that make D liable: 1. The place where the fence is damaged is located near the public road. 2. Children can easily break through the fence. 3. If the child enters the area, the child is at risk of death / bodily injury 4. Children are incapable of knowing the risks involved if they touch the runway.
15. AMALIA SULAIMAN UKM LAW SCHOOL 2020 All of these facts are known to the defendant. The occupation of an intruder is based on a humanitarian attitude by taking into account the occupants' knowledge of the presence of the intruder and the nature of the danger, the financial ability to take precautionary measures & other restrictions that the occupant may have. CASE: SOUTHERN PORTLAND CEMENT V. COOPER  1 MLJ 94 A quarrying co. was held liable for injuries to a child who was playing on a hill of sand & was subsequently injured when the child came into contact with an electric power cable. PC held: If the occupier knows or ought to know that a trespasser may enter his premises, then the occupier must take reasonable precautions to avoid any damage from occuring. TRESPASSER: CHILDREN • Children can be expected to be less careful than adults, and, by implication, that a greater level of care might be required to keep them from harm. • The common law has sought to strike a balance between the responsibilities of parents and occupiers to prevent harm from befalling children. CASE: Phipps v Rochester Corporation  1 QB 450 A 5-year-old was walking, with his 7-year-old sister, across some land owned by the defendant, which was under development. The 5-year-old fell into a trench dug for such purposes, and was injured. The court ruled that the occupying council was not liable – just as an assumption could be made that children would be less careful, an equal assumption could be made that young children would not be allowed to wander unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to landowners, the claim was denied. Summary: Occupier has a duty to not create an allurement on his premises. If the occupant creates an attraction, it means that the villager draws the child into his or her place.
16. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: Glasgow Corporation v Taylor  1 AC 44 A seven-year-old died after eating poisonous berries which were in a public park. Whilst the plants were fenced off, there were no notices warning that the berries were poisonous. The court held that the defendant council was liable. The plants did not present an obvious danger, and so the council should have taken sufficient measures to draw attention to the concealed danger. It was also noted that an occupier who is aware that something on his land might act as an allurement to children (for instance, berries that look edible) should take greater care to prevent that risk from manifesting. *If land holds either concealed danger, or something which might allure children to it, then a duty will likely be held to exist. CASE: SOUTHERN PORTLAND CEMENT V. COOPER  1 MLJ 94 A quarrying co. was held liable for injuries to a child who was playing on a hill of sand & was subsequently injured when the child came into contact with an electric power cable. PC held: If the occupier knows or ought to know that a trespasser may enter his premises, then the occupier must take reasonable precautions to avoid any damage from occuring. CASE: LEMBAGA LETRIK NEGARA V. RAMAKRISHNAN  2 MLJ 128 [ALLOWED] The children went to the harbor substation to rescue the trapped bird. Children are trespasers Court: An occupier owed a duty to a trespasser if the occupier knew that the circumstances on his premises may be dangerous to any visitors. This duty is fulfilled if the occupier had taken precautions based on common humanity and in the light of his own circumstances & financial position. CASE: SINURI B. TUBAR & ANOR V. SYARIKAT EAST JOHORE SAWMILLS SDN BHD  1 MLJ 315 [DISMISSED] Held: Whether an object should be considered an allurement must be a question of fact to be decided on the circumstances of each case and timber logs in a private yard could not be considered an allurement.
17. AMALIA SULAIMAN UKM LAW SCHOOL 2020 SKILLED VISITORS Occupiers can assume that such visitors will have a greater awareness of risks and the relevant precautions that they should take This increased competence will only apply to risks whose nature matches the skill of the visitor. So an electrician will be owed a lesser duty of care by an occupier – but only in relation to risks of electric shock and similar. CASE: General Cleaning Contractors Ltd v Christmas  AC 180 [ALLOWED] The claimant was cleaning windows on the defendant’s building. He had climbed up onto a wall, and was using an open sash window for support. The top half of the window closed on his fingers, he lost his balance and fell, injuring himself. His action against the occupiers failed – it was held that as a professional, he should have known how to mitigate the risk he was running. CASE: Salmon v Seafarer Restaurants Ltd  1 WLR 1264 [DISMISSED] A fireman was injured in an explosion whilst attending a chip shop fire. The defendant occupier argued that, with regard to a fireman attending a fire, his duty only existed to protect him against a special or additional risk above those he might ordinarily encounter as a result of his job. This argument was rejected – whilst the firefighter’s skills were relevant to determining the applicable duty of care, where it was foreseeable that he might be injured through the exercise of those skills, the occupier would remain liable. The claim therefore succeeded. WARNINGS! – the duty of care is based on protecting visitors, rather than removing hazards altogether. This means that the humble warning sign forms a key element of fulfilling the duty. However, the addition of a warning to a hazard will not absolve an occupier of liability. – a specific hazard will require a specific warning – so if the hazard is an electric fence, then an appropriate warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden dangers will require greater attention to be drawn to them
18. AMALIA SULAIMAN UKM LAW SCHOOL 2020 CASE: Staples v West Dorset District Council  93 LGR 536 The claimant was badly injured when, crouched on a harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high. The harbour wall was covered in algae, and thus very slippery when wet. He brought an action against the defendant council, arguing that no warning signs were present regarding the danger of slipping. The claim failed – the dangers of slipping on algae on a harbour wall were obvious, and the claimant was aware of them. The defendant thus had no duty to warn. * Staples demonstrates how claimants will be expected to use their own common sense to self-warn of a hazard. INDEPENDENT CONTRACTORS Situations in which an occupier will be held liable for a harm caused by an independent contractor: 1. where in was unreasonable to entrust the work to an independent contractor in the first place. This is to prevent an occupier from hiring independent contractors to deal with all aspects of their premises in order to avoid liability. 2. Secondly, where the occupier failed to take reasonable steps to ensure the independent contractor was competent – for example, a landlord who hires an independent engineer to do gas safety checks will be expected to check that he is qualified. 3. Thirdly, where the occupier has failed to take reasonable steps to check the work of an independent contractor. 4. If a school hires an independent contractor to clear ice off of steps, they will be expected to check that it has been done ( See Woodward v Mayor of Hastings  KB 174. ) . 5. An occupier will not be expected to check overly technical work, as long as they have taken the proactive measure of ensuring their contractor is reputable (See Haseldine v Daw & Son Ltd  2 KB 343.) DEFENCES • Volenti non fit injuria • Contributory negligence • Exclusion of occupier’s liability – Ashdown v Williams and Sons (1957)