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Occupiers`s Liability Principle and the Defense in Malaysia

Updated: 3 days ago

Occupiers’ liability concerns the liability of an occupier to persons who are injured on his premises.


Occupiers’ liability arises in a situation where the premises are not as safe as it should reasonably be and this defective state causes injury or damage to the plaintiff. The definition of an occupier was laid down in Wheat v Lacon & Co Ltd [1966] 1 All ER 582 where Lord Denning said: Wherever a person has a sufficient degree of control over premises that he ought to realize 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.


In Salmond Of Torts (14th Edn, 1965) p 372, it is said that an “occupier” is someone who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.


The test is occupational control over the premises, which is control associated with and arising from presence in and use of the premises. Liability is not based on ownership. Control need not be absolute or exclusive. A person is deemed to be the occupier if he has sufficient control over the premises and may be sued for any injuries sustained on the premises. One of the types of entrants is main purpose entrant who enters the premises for the purpose of occupying it, and who has paid to be on the premise such as a tenant. The occupier owes the highest degree of care to contractual entrant among the four types of entrants. The court in DATUK BANDAR DEWAN BANDARAYA KUALA LUMPUR v ONG KOK PENG & ANOR [1993] 2 MLJ 234 categorised four types of entrants as follows: Speaking of plaintiffs entering premises, the liability of occupiers of such premises to take care exists but it depends on the character in which they have entered them. First, we have people who enter them by virtue of a contract, such as a guest 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 the goods, they are the invitees; thirdly, we have persons who enter them with the express or implied permission of the occupiers, without neither a contract, nor such community of interest, they are called licensees; and fourthly, there 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 down and not so high in the case of invitees and so on. Such duty of care has been spelt out at common law in each case.


The duty owed by the occupier to tenants is explained in the case of Shanta a/p Manickam (suing for herself and her children being the dependants of the deceased Letchumanan a/l Subramaniam) v Teik Joo Chan Sdn Bhd & Anor [2015] 11 MLJ 721 which states that: [30] It seems to me that the principles that can be distilled from these authorities are, that there may be more than one occupier of property, at the same time, for the purposes of occupier’s liability, each of whom is under a duty of care to visitors. Occupation or control do not ordinarily follow from the mere fact of ownership. An owner who parts with the entire possession and control of his premises to his tenant, is not liable to the tenant or to the visitors of the tenant. On the contrary, an owner who retains the right to control the means of access owes a duty to all persons who may be lawfully in the building or in its vicinity to take reasonable care to see that they a safe. Therefore, contractual entrants are those who entered in pursuance of a contract with the occupier. These are people who had paid to use the occupier’s premises. According to the common law, where the main purpose of entry was the use of the premise in question, the occupier ensured that the premise was safe and all reasonable care and skill had been taken care of. Per MacLenan v Segar [1917] 2 KB 325, McCardie J said: 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 provides 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 any one can make them.


THE DEFENCES

Defences which may be/usually raised in a negligence suit are volenti non fit injuria, contributory negligence, mechanical defect, inevitable accident and a valid exclusion clause, which is rarely used. Contributory negligence means that the plaintiff has failed to use reasonable care for the safety of himself or his property, which then gives rise to his damage or injury.


This is per MOHD ZUKHAIRI ABD GHAPAR (AN INFANT SUING THROUGH HIS FATHER AND NEXT FRIEND, ABDUL GHAPAR BIN SAAD) v QUEK CHIAM KEE [2004] 5 MLJ 6 which states that: [14] At this juncture, it is necessary and appropriate to set out the meaning of the word 'negligence' as used in the expression 'contributory negligence'. It does not mean breach of duty. It means the failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his own wrong.


In considering whether a child plaintiff has been contributorily negligent, the main consideration is the age of the child. For example, an infant who is two years old could not be expected to take care of his own safety. To illustrate, in the case of WONG CHIN YONG v HAIDAWATI BTE BOLHEN & ANOR [1994] MLJU 80, the court finds as follows: In the present case the Infant Plaintiff was only 2 years 11 months old when he was knocked down. For that tender age I do not think any reasonable person should impose upon him the duty to take care of his own safety. He could not be expected to judge the speed and the distance of the said car at that time. Furthermore, I am not satisfied that the Defendants have proven that the Infant Plaintiff had shown a culpable want of care for his own safety. As stated earlier on that if the 1st Defendant was in control of the speed of the said car and on a proper look-out since she was familiar with the road, the collision might not have happened. I do not think therefore that any blame should be attributed to the Infant Plaintiff in this case.


Additionally, if an infant is injured through the negligence of both the defendant and of a person in charge of the child, the negligence of the latter is irrelevant to a claim made on behalf of the child against the defendant. This is seen in SYMES v LING NGAN NGIENG [1966] 2 MLJ 149, where the court states that: As regards allegation of negligence on the part of the mother, the law is that if a young child is injured through the negligence of the defendant and the negligence of a person in charge of the child, the negligence of the person in charge is no answer to a claim made on behalf of the child against the defendant.


Written by : Nur Aisyah Humaira . Aisyah is currently is doing a pupilage at Messrs Nur Maidin & Co and focusing her training to become a litigation lawyer.


Tort of negligence
Negligence in Malaysia



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