Tutorial Occupier\'s Liability week 12 hope this helps PDF

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1. In what special circumstances does the law relating to occupier’s liability apply?Occupier’s Liability is a principle that arises in a situation where the premises of an occupier are not as reasonably safe as they should be, causing injury or damage to the plaintiff. The definition of occupier is...

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1. In what special circumstances does the law relating to occupier’s liability apply? Occupier’s Liability is a principle that arises in a situation where the premises of an occupier are not as reasonably safe as they should be, causing injury or damage to the plaintiff. The definition of occupier is stated in the case of Wheat v Lacon & Co Ltd, where occupier is someone who has the immediate supervision or control and power of permitting or prohibiting the entry of another person. It is not necessary for an occupier to have absolute ownership or control over the premise but suffice that he has some degree of control. There are several special circumstances where this principle will apply and the application differs based on the type of the entrant. The first type of entrant is contractual entrants. Contractual entrants are divided into two types which is main purpose entrant and ancillary purpose entrant. Main purpose entrant is a person who enters and has made payment to occupy the premises of the occupier, such as tenant or a guest in a hotel. The occupier owes a duty to ensure that the premise is safe for the purpose for which it is contracted out. Ancillary purpose entrant is a person who enters the premises for the purpose of some activity other than occupying the premises for example, being a spectator at a sport event. The occupier owes a duty to ensure that the premises are in all respects reasonably safe for the purpose for which the other party was invited to use them as stated in the case of Gilmore v London County Council where the defendant was held liable for the failure to ensure that the floor was unsuitable for physical exercise after the plaintiff fell during an exercise class due to the floor was slippery. Secondly, the invitees. Invitee is a person who enters the premises with the permission or on the authority of the occupier as a matter of common interest. There are two types of invitees which is legally authorized entrants and Business Visitors. Legally Authorized Entrants are people who enter premises on the authority of the law such as policeman, fireman and health inspector. Meanwhile, Business Visitors are people who enters premises be it public or private premises for a purpose which is materialistic and brings economic benefits to both themselves and the occupier. Thirdly is the licensees. Licensees are persons who enter premises with the occupier’s gratuitous permission, be it express or implied. Usually the occupier does not have any interest in the presence of the licensee on his premise, unlike a contractual entrant and invitee. There are two types of licensee which is entrant as a right and social visitors. Entrant as a right is a person who enters as of right to public places as a member of the public such as public library. While social visitor is a person who enters into private premises with the permission of the occupier or by invitation. His purpose for being on the premises is social in nature and does not confer any materialistic or economic advantage to the occupier for example, visitor of the tenant. The last type of entrant is the trespasser. Trespasser is a person who enters into premises without any express or implied permission of the occupier. His existence on the premises might not be known to the occupier such as a wandering child. When the occupier is aware of the likelihood of trespassers on his land, and the danger is reasonably foreseeable, he

must take reasonable measures either to prevent them from entering the land, or to prevent danger to them while they are on the land. In conclusion, the principle occupier’s liability applies in 4 special circumstances mentioned above.

2. What is the distinction between an invitee and a licensee? State the duty owed by the occupier to each of these categories of entrants. The distinction between an invitee and a licensee is that, an invitee is a person who enters premises with the permission or on authority of the occupier. Meanwhile a licensee is a person who enters premises with the occupier’s gratuitous permission, be it express or implied. The entry of an invitee usually is based on common interest with the occupier such as business matter. While for a licensee, the occupier usually does not have any interest in their presence on his premises. The duty of care owed by the occupier is different for these two types of entrants. For an invitee, the occupier’s duty is to take reasonable care not to expose the invitee to any unusual danger which includes a concealed danger. For example in the case of Lee Lau & Sons Realty Sdn Bhd v Tan Yah & Ors, it was held that the course of raising the forklift mechanically and using two rubber tree stumps to support the heavy horizontal iron bar does not constitute an unusual danger to the plaintiff as it was an usual risk in the nature of his job and could reasonably have been foreseen by the plaintiff. Next, the duty of care owed by an occupier to a licensee is that occupier has the duty to take reasonable care not to expose the licensee to a concealed danger which exclude any apparent and unusual danger. However, in the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck, the duty of care arises when two factors are being established which is the occupier’s knowledge and there exists a concealed danger. If the occupier knows of the condition on the premises, and a reasonable man would have realized the existence of danger, the occupier will be taken as having knowledge of the danger. Based on the case of Latham v R Johnson & Nephew Ltd, the court stated that concealed danger consists of something hidden or concealed and the element of surprise. It is sufficient if the danger is something which the licensee is not aware of and could not be expected to be aware of.

3. Who is a trespasser and how does he differ from the “lawful visitor” category? What is the duty owed to him if any? Trespasser is a person who enters into premises without any express or implied permission of the occupier. His existence on the premises might not be known to the occupier such as wandering child or a thief. While, “lawful visitor” is someone who enters into the premises with the permission of the occupier be it express or implied and the occupier might be aware of their existence on the premises. Trespasser differ from “lawful visitor” because the general rule applies is that occupier does not owe a duty of care towards a trespasser because it is assumed that trespasser has accepted all risks and any danger that might be on the property. However, this rule was overruled in the case of British Railway Board v Herrington. In this case, the defendant was held liable even though occupier did not owe a duty of care towards trespasser, he nevertheless, must take reasonable steps of common humanity and common sense to avoid danger. But this rule applies only if the occupier could reasonably foresee that that a trespasser would enter his premise. If it was reasonably foreseeable, then the occupier has the duty to warn the trespasser of the potential danger. Several factors will also be taken into account in ascertain whether this duty is fulfilled or otherwise which is the expertise, the financial standing and the knowledge of the occupier of the trespasser’s possible presence on his premises.

4. Borhan owns a house which is surrounded by a fence made of wood. One portion of the fence has a large gap in it because part of the wood had been destroyed by dry rot. Borhan is aware of this condition in his fence and has been aware of this condition for quite some time. However due to neglect and the fact that he is a busy businessman he fails to repair the fence. Halim a child of 5 years old, goes to play at the compound of Borhan with Borhan's child Bob. Halim frequently crossed the fence at the large gap for this purpose. One day Halim was joined by a newfound friend from the neighbourhood, 6 years old Siu Kheng and together they crossed over the fence. They fall into a pond where Borhan rears his fishes and drown. Discuss. (trespasser) Main issue: Whether Borhan can be liable under occupier’s liability towards Halim and Siu Kheng. Law: Occupier’s Liability is a principle that arises in a situation where the premises of an occupier are not as reasonably safe as they should be, causing injury or damage to the plaintiff. The definition of occupier is stated in the case of Wheat v Lacon & Co Ltd, where occupier is someone who has the immediate supervision or control and power of permitting or prohibiting the entry of another person. It is not necessary for an occupier to have absolute ownership or control over the premise but suffice that he has some degree of control. There are several special circumstances where this principle will apply and the application differs

based on the type of the entrant. One of it is trespasser. Trespasser is a person who enters into premises without any express or implied permission of the occupier. His existence on the premises might not be known to the occupier. In this case, Halim and Siu Kheng can be considered as trespassers because they entered into Borhan premises without permission. If they did enter with permission, Borhan probably would have warn them about the condition of the fence to avoid unwanted things from happening.

Sub-Issue 1: Whether Borhan owes a duty of care to ensure Halim’s safety when crossing the fence? Law: According to the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck, the court stated that the general rule is that occupier does not owe a duty of care towards trespasser as he had entered without permission and is therefore assumed to have accepted all risks and any danger there might be on the property. However, in the case of British Railways Board v Herrington, a six-year old child entered a piece of land which was open to the public and frequented by children. The boy was severely injured when he went through a gap in a fence and stepped on the electric railway tracks owned by the defendants. The House of Lords found the defendants liable because even though an occupier did not owe a duty of care towards trespasser, nevertheless the occupier must take reasonable steps of common humanity and common sense to avoid the danger. Therefore, if the presence of trespasser is known or reasonably foreseeable, the occupier owes a duty towards the trespasser to warn him of the potential danger. There are several factors that will be taken into account to ascertain whether the duty has been fulfilled or otherwise namely, expertise, financial standing and the knowledge of the occupier of the trespasser’s possible presence on his premises. In this situation, Borhan was fully aware of the large gap at one portion of the fence. This means that he had knowledge about the danger but failed to repair the fence due to lack of free time since he is a businessman which means that he is always busy with work. However, since Borhan is aware of the condition of the fence, he should have taken reasonable steps to avoid Halim from the danger. He somehow failed to protect Halim from the danger by failing to place a warning sign. Moreover, Borhan could reasonably foresee Halim’s presence on his compound since both Halim and his son are friends. He would have known by now that Halim always came over to his compound to play with his son. Thus, it is reasonably foreseeable that Halim would cross the fence. In conclusion, Borhan owes a duty of care towards Halim. Sub-issue 2: Whether Borhan can be liable under occupier’s liability towards Siu Kheng for failing to put up warning sign at the fence? Law:

According to the case of Robert Addie & Sons Ltd v Dumbreck, the court stated that the general rule is that occupier does not owe a duty of care towards trespasser as he had entered without permission and is therefore assumed to have accepted all risks and any danger there might be on the property. However, in the case of British Railways Board v Herrington, a six-year old child entered a piece of land which was open to the public and frequented by children. The boy was severely injured when he went through a gap in a fence and stepped on the electric railway tracks owned by the defendants. The House of Lords found the defendants liable because even though an occupier did not owe a duty of care towards trespasser, nevertheless the occupier must take reasonable steps of common humanity and common sense to avoid the danger. Therefore, if the presence of trespasser is known or reasonably foreseeable, the occupier owes a duty towards the trespasser to warn him of the potential danger. There are several factors that will be taken into account to ascertain whether the duty has been fulfilled or otherwise namely, expertise, financial standing and the knowledge of the occupier of the trespasser’s possible presence on his premises. Next, in the case of Sathu v Hawthornden Rubber Estate Co Ltd, the defendant was found not liable when the plaintiff’s cattle strayed onto the defendant’s rubber estate whilst grazing. The estate had been sprayed with poisonous weedkiller and plaintiff’s cattle died due to that reason. The defendant was not liable as he could not reasonably foresee the trespass by the plaintiff’s cattle and so no duty was owed. In this case, even though Borhan could foresee the presence of Halim on his compound due to Halim being his son’s friend, but he could have not reasonably foresee the presence of Siu Kheng because he probably never knew Siu Kheng existed because he was a new found friend of Halim. In conclusion, Borhan did not owes a duty of care towards Siu Kheng.

a duty of care arises when two factors are established which are the occupier’s liability and there exists a concealed danger. Based on the case of Hawkins v Coulsdon & Purely UDC, the occupier was held liable to the plaintiff as he knew one of the steps on his ladder was broken, even though he did not realize the extent of the danger. The test is objective. If the occupier knows of the condition on the premises, and a reasonable man would have realized the existence of danger, the occupier will be taken as having knowledge of the danger.

5. Roslan invites Mohsen and Fuad to dinner at his home to celebrate his 21st birthday. Mohsen and Fuad are entering the compound of Roslan's house, when Mohsen's foot gets lodged in a hole unnoticed by both of them. As a result of this Mohsen falls down and breaks his leg. Roslan on hearing the screams of help from Fuad runs out of the house and both Roslan and Fuad help to carry Mohsen into the House. On climbing the stairs to the house Fuad slips as a result of the newly applied polish on the floor and breaks his back. Advise Mohsen and Fuad. Issue: Whether Roslan can be liable under occupier’s liability towards Mohsen and Fuad. Law & Application: Occupier’s Liability is a principle that arises in a situation where the premises of an occupier are not as reasonably safe as they should be, causing injury or damage to the plaintiff. The definition of occupier is stated in the case of Wheat v Lacon & Co Ltd, where occupier is someone who has the immediate supervision or control and power of permitting or prohibiting the entry of another person. It is not necessary for an occupier to absolute ownership or control over the premise but suffice that he has some degree of control. There are several types of entrants and the application of this principle differs based on the type of the entrant. One of it is licensee. Licensees are persons who enter premises with the occupier’s gratuitous permission, be it express or implied. There are then 2 types of licensee which one of it is social visitor. Social visitor is a person who enters into private premises with the permission of the occupier or by invitation. In this case, Mohsen and Fuad are considered as licensees. They both enter into Rohan’s compound with Rohan’s permission as the occupier. Moreover, their purpose of coming to the compound is to celebrate Rohan’s 21st birthday which is social in nature and does not confer any economic advantage to Rohan. Sub-issue 1: Whether Roslan owes a duty of care to ensure Mohsen’s safety in his house compound? Law & Application: According to the case of Robert Addie & Sons Ltd v Dumbreck, a duty of care arises when two factors are established which are the occupier’s liability and there exists a concealed danger. Based on the case of Hawkins v Coulsdon & Purely UDC, the occupier was held liable to the plaintiff as he knew one of the steps on his ladder was broken, even though he did not realize the extent of the danger. The test is objective. If the occupier knows of the condition on the premises, and a reasonable man would have realized the existence of danger, the occupier will be taken as having knowledge of the danger. In this case, although the hole was unnoticed by both of the parties, the defendant was ought to have known that there exists a hole in his house compound. It is reasonable to foresee that if there’s any hole in the house compound, any visitor might have suffered injuries if they lodged into it. The defendant should have known about the hole and should

be aware of it. Based on the case of Latham v R Johnson & Nephew Ltd, the court stated that concealed danger consists of something hidden or concealed and the element of surprise. The premises might look safe but in fact is a trap. It is not necessary to show there exists deception by the licensor, it is sufficient if the danger is something which the licensee is not aware of and could not be expected to be aware of. In this case, the hole was indeed a concealed danger as the plaintiff would not have known about the danger in the defendant’s house. He was not aware of it and could not be expected to have lodged into such a defect in the defendant’s house. Thus, the defendant has a duty of make sure that the visitors to his house is safe as an occupier of the house. Rohan should be held liable under the occupier’s liability for causing injuries to Mohsen as he ought to have known that there’s a danger in her house and he should have taken reasonable steps to avoid any injuries. Sub-Issue 2: Whether Roslan owes a duty of care towards Fuad for failing to ensure that the newly polished stairs is safe to be used? Law & Application: According to the case of Robert Addie & Sons (Collieries) Ltd v Dumbreck, a duty of care arises when two factors are established which are the occupier’s liability and there exists a concealed danger. Based on the case of Hawkins v Coulsdon & Purely UDC, the occupier was held liable to the plaintiff as he knew one of the steps on his ladder was broken, even though he did not realize the extent of the danger. The test is objective. If the occupier knows of the condition on the premises, and a reasonable man would have realized the existence of danger, the occupier will be taken as having knowledge of the danger. Based on the case of Latham v R Johnson & Nephew Ltd, the court stated that concealed danger consists of something hidden or concealed and the element of surprise. The premises might look safe but in fact is a trap. It is not necessary to show there exists deception by the licensor, it is sufficient if the danger is something which the licensee is not aware of and could not be expected to be aware of. In this case, Rohan knew about the newly polished floor of the stairs, and it was reasonably foreseeable that if the polish was still wet, people who climb the stairs might slip. Since the Rohan was aware of the danger, he should have taken reasonable step to avoid the danger but he failed to do so. It would be impossible for Fuad to have known about the newly polish floor and he will not be aware of it. The danger was concealed to the plaintiff as he is not aware of the newly polish floor of the stairs. Thus, Roslan owes a duty to ensure the safety of his visitors while visiting his house. Roslan should be held liable for failing to protect Fuad from concealed danger....