TORT Occupiers Liability

Q7, 2014

Parties Involved:
Elsa violin player, Elmos sister, Hanss friend
Elmo-Elsa nine years old brother
Hans Elsas friend, owner of restaurant

Issues:
1) Whether Elsa can sue Hans being negligent by left the some tools on the
corridor floor which cause Elsa severely injured. - licensees
2) Whether Elmo can sue Hans for locking the doors and cause him injured
while running to another fire exit. - trespasser
3) Whether Hans can raise the defence on Elsa on the case Elsa get injured.
4) Whether Hans can raise the defence on Elmo on the case Elmo get injured.

Introduction:
Occupiers liability arises in a situation where the premises are not as safe as it
should reasonably be, hence cause injury/ damage to the plaintiff. Occupiers
liability based on the standard of care required of the defendant occupier. An
occupier is someone who has the immediate supervision, control and the power
of permitting/prohibiting the entry of other persons. In order to establish
occupiers liability, the occupier must have a sufficient degree of control over
the premise that he ought to realize that any failure on his part to use care may
result in injury to a person coming lawfully In order to be an occupier it is not
necessary for a person to have entire control over the premiseshe may share
the control with others.said by Lord Dening-case Wheat v Lacon. Premises
include all forms of building, open land, transport, structures and etc. there are
four types if entrants and standard of care required. There are contractual
entrants, invitees, licensees and trespassers.

Issue 1:
Whether Elsa can sue Hans being negligent by left the some tools on the corridor
floor which cause Elsa severely injured. licensees

Law and Application

Licensee is a person who enters the premises with the occupiers gratuitous
permission, be it express or implied. Usually the occupier does not have any
interest in the presence of the license on his premises. A social visitor is one who
enters into private premises with the permission of the defendant occupier or by
invitation. His purpose for being on the premises is social in nature and does not
confer any materialistic or economic advantages to the occupier. A duty of cares
arises when below factors are established: meaning of the occupier knowledge,
meaning of concealed or hidden danger and knowledge of the plaintiff.

Hans is the occupier of the premise the restaurant and the restaurant under
renovation work. Elsa was given the permission from Hans to practice violin at
the hall of the restaurant under the category licensees as a social visitors. Hans
was giving the permission without having any interest from Elsa. Elsas purpose
on the occupier premises is to practice violin and does not confer any
materialistic or economic advantages to the occupier. In Yeap Cheng Hock v
Kajima-Taisei Joint Venture, the plaintiff, who was a geologist, was injured during
a visit to a mine, the visit being for his own purposes and not meant to bring any
benefit to defendant.

Meaning of the occupier knowledge

Occupier would be liable if he ought to have known of the existence of the
danger. When Hans left the tools on the corridor, he ought to have known that
the tools might harm to anyone who run through the corridor to save their life
from fire. If the occupier knowns of the condition of premises and a reasonable
man would have realized of the existence of danger, the occupier will be taken
as having knowledge of the danger as in case of Hawkins v Coulsdon. The
occupier was held liable to the plaintiff as he knew one of his steps of the ladders
was broken, even though he did not realise the extent of the danger. Here, Elsa
was injured severely due to the negligent of Hans was living the tools on the
corridor. In this case, Hans did fulfill this factor.

Meaning of concealed or hidden danger

The danger is conceal or hidden when the licensee is not aware of and could not
be expected to be aware. Here, Elsa did not notice the tools on the corridor and
slipped on a screwdriver. In the case of Yeap Cheng Hock v Kajima-Taisei Joint
Venture stated above, the judge held that the defendants were found liable as
the cause of the injury, which was a projection of rock in a tunnel, was a
concealed danger and was known or ought to have been known by the
defendant. In this case, Hans did fulfill this factor.

Knowledge of the plaintiff

If the plaintiff knows of the danger or the circumstances on the premises with the
warning given by occupier, the danger ceases to be concealed or hidden danger.
In this case, Hans did put a notice that the restaurant is under renovation.
However he did not mention the route or exit to be used during emergency
incident. Hans did not take consideration for more precautions as this is the
public place for him to have customer at his restaurant. In the case of Lim Seow
Wah v Housing and Development Board, court held that since there was
unlimited access to the stall, the plaintiff was not a trespasser and even if he
was, defendant should have foreseen that members of the public would
patronize the stall. Same like the case, Elsa can access to different way which
she think is the faster way to get rid from the fire. Therefore, Hans has
established this factor.

In the conclusion, Hans has fulfilled the entire factor and established the
standard of care for this issue. Therefore, Elsa has chance to successfully sue
Hans.

Issue 2:
Whether Elmo can sue Hans for locking the doors and cause him injured while
running to another fire exit. - Trespasser

Law and Application

A trespasser is a person who enters premises without any express or implied
permission of the occupier. His existence on the premises may not be known to
the occupier, such a wandering child, a thief, a person who has lost his way, and
so forth. An occupier did not owe a duty towards a trespasser; nevertheless the
occupier must take reasonable steps of common humanity and common sense to
avoid danger; or to give warning to people who might be on his premises. Thus,
the factor to establish the standard of care is based on the presence of the
trespasser is known or reasonable foreseeable and duty to warn the trespasser of
the potential damage. For the child trespassers, adding another allurement
factor that the occupier is in a sense to inviting children to meddle with the
dangerous thing and it follows that a duty must be imposed to him. Apparently,
Elmo is just a 9 years old child bring in to Hans restaurant by her sister without
acknowledgment of Hans and fall under category of child trespasser.

The presence of the trespasser is reasonable foreseeable for Hans as the

restaurant is the public area for anyone to go in and out even though they might
not go in for the purpose to have meal. Waning notice that Hans did put for the
renovation work by warning that no children is allowed to enter is sufficient.
Whether the renovation work at hall should be considered as the allurement
factor is a fact to be decided on the circumstances of each case, and in the
instant case, the hall shall not be considered as allurement. In Sinuri bin Tubar v
Syarikat East Johore Sawmills, plaintiff who was eleven years old went into
defendants compound and bathed. While he was crossing the yard on his way
home, his hand was trapped under the logs in the yard and had to be amputated.
The court held: an object should not be considered an allurement unless the
temptation which it presents is such that no normal child could be expected to
restrain himself from inter melding, even if he knows that to inter-meddle is
wrong. Since Elmo was brought in by Elsa thus no allurement factor can be
imposed on Hans. However, occupier still has a higher standard of care on the
child trespasser. From here Hans can raise a defence on Elmo not to liable on
Elmos injuries.

Issue 3
Whether Hans can raise the defence on Elsa on the case Elsa get injured.
There is no defence for Hans on Elsa. Therefore, Elsa can successfully sue Hans
on her injuries.

Issue 4
Whether Hans can raise the defence on Elmo on the case Elmo get injured.

Law and Application

An occupier who is sued may raise the defence if volenti non fit injuria or that he
has put up a sufficient notice or warning. Notices may be in the form of a
warning, or an exclusion clause. It may also take the form of a device which
prevents visitors from getting into contact with the danger. In case Ashdown v
William Samueis & Sons, the court held that an exclusion clause may be raised
as a complete defence if the clause is clear and sufficient.

Here, Hans can raise the complete defence on Elmo and Elsa on Elmos injuries
as he did put the notice to prohibited children to go in the hall due to renovation
work. For the child trespassers, the safety of children to a large extend lies on
their parents or guardian and therefore an occupier has the right to question this
responsibility, if the warnings given by him are considered sufficient. Therefore,
Hans can successfully defence in this case as Elsa did notice the warning board
in the hall.

In conclusion, Hans will only held liable on Elsa for her injuries and not liable on
Elmos injuries.

Q7, 2015 Occupiers Liability

Parties Involved:
Kiara Trust owner of Kiara Park
Seri Sutera Sdn Bhd management of the park
Tayoob Father
Maria - Mother
Chenta kid

Issues:
1.) Whether Maria can sue Kiara Trust and Seri Sutera for not giving the notice
of the depth of the water pool and caused her injured. Licensee
2.) Whether Chenta can sue Kiara Trust and Seri Sutera for the seriously ill
after ate the poisonous purple cherries from the Kiara Park. Children
Licensee
3.) Whether Kiara Trust and Seri Sutera can raise defence on Maria for the
injuries.
4.) Whether Kiara Trust and Seri Sutera can raise defence on Chentas parents
for not taking good care to Chenta.

Introduction:
Occupiers liability arises in a situation where the premises are not as safe as it
should reasonably be, hence cause injury/ damage to the plaintiff. Occupiers
liability based on the standard of care required of the defendant occupier. An
occupier is someone who has the immediate supervision, control and the power
of permitting/prohibiting the entry of other persons. In order to establish
occupiers liability, the occupier must have a sufficient degree of control over
the premise that he ought to realize that any failure on his part to use care may
result in injury to a person coming lawfully In order to be an occupier it is not
necessary for a person to have entire control over the premiseshe may share
the control with others.said by Lord Dening-case Wheat v Lacon. Premises
include all forms of building, open land, transport, structures and etc. there are
four types if entrants and standard of care required. There are contractual
entrants, invitees, licensees and trespassers. In this case, Kiara Trust and Seri
Sutera Sdn Bhd are the occupiers and they will become defendant of the case.

Issue 1:
Whether Maria can sue Kiara Trust and Seri Sutera for not giving the notice of the
depth of the water pool and caused her injured. Licensee

Law and Application

Licensee is a person who enters the premises with the occupiers gratuitous
permission, be it express or implied. Usually the occupier does not have any
interest in the presence of the license on his premises. Entrant as of right is
those who have the right to enter into premises that are open to public such as
Public Park, public pool, public library ant etc. The general principle is that actual
knowledge of the occupier as to the existence of danger is not necessary and the
licensee visitor cannot assume that the premises will be free from visible
dangers. The occupier must however, take reasonable steps in the circumstances
to avoid any damage from occurring, especially if the danger is obvious. If the
occupier failed to carry out the safety of his premise and with the consequences,
member of public is injured due to the danger raise from his premises. Then the
occupier said to have failed to exercise the reasonable care to avoid the damage.
A duty of cares arises when below factors is established: meaning of the
occupier knowledge, meaning of concealed or hidden danger and knowledge of
the plaintiff.

Kiara Park is a public park with the occupiers gratuitous permission to the public.
Small entrance fees as their maintenance fees did not bring much interest of the
licensees on their premises. In the case of Aiken v Kingborough Corporation,
Consideration that ought to affect the standard of care expected of an occupier
of premises to which members of the public can enter as of right was clearly laid
down by Dixon J.

Meaning of the occupier knowledge

Occupier would be liable if he ought to have known of the existence of the
danger. Kiara Trust and Seri Sutera should have known the depth of the cool by
providing the measurement of the pool depth to the public. If the occupier
knowns of the condition of premises and a reasonable man would have realized
of the existence of danger, the occupier will be taken as having knowledge of the
danger as in case of Hawkins v Coulsdon. The occupier was held liable to the
plaintiff as he knew one of his steps of the ladders was broken, even though he
did not realise the extent of the danger. Here, Maria was injured as she failed in
testing the depth of the water. Kiara Trust and Seri Sutera did fulfill this factor.

Meaning of concealed or hidden danger

The danger is conceal or hidden when the licensee is not aware of and could not
be expected to be aware. Here, Maria concludes that the pool is safe after her
test on the water suggested the pond is shallow. In the case of Latham v R
Johnson & Nephew, the court stated that concealed danger consists of something
hidden or concealed and the element of surprise. The premises might look safe
but is in fact a trap. In this case, the depth of the pool water might look safe but
in fact it is a trap for public. And therefor Kiara Trust and Seri Sutera fulfilled this
factor.

Knowledge of the plaintiff

If the plaintiff knows of the danger or the circumstances on the premises with the
warning given by occupier, the danger ceases to be concealed or hidden danger.
In this case, Maria did not know the danger of the pool as the occupier failed to
provide the measurement of the depth of the water and caused Maria injured. In
fact, Maria did do her part which the licensee cannot assume that the premises
will be free from visible dangers and she makes the test on pool depth.
Therefore, Kiara Trust and Seri Sutera have established this factor.

In the conclusion, Kiara Trust and Seri Sutera has fulfilled the entire factor and
established the standard of care for this issue. Therefore, Maria has chance to
successfully sue Kiara Trust and Seri Sutera. However, defence can be raised
back to Maria with the notice stated at the main entrance of the park.

Issue 2:
Whether Chenta can sue Kiara Trust and Seri Sutera for the seriously ill after ate
the poisonous purple cherries from the Kiara Park. Children Licensee

Law and Application

Part of the licensee, entrant by implied permission enters into premises in
circumstances where the court implies a license. He enters without any express
restriction by the occupier. The court applies the doctrine of allurement in this
category, such as a child entering a piece of land due to some attraction on the
land, or someone who is not prevented to use the occupiers land in order to get
to the other side of the land. In this case, Chenta entering the bush with a notice
from management and attracted by the purple cherries and become ill after ate
the cherries.

If the licensee is a child, the duty on the occupier is higher as a child cannot be
expected to be aware of dangers that may be obvious to adults. In Phipps v
Rochester Corporation, two children entered into the defendants compound to
pluck some fruits. They fell and injured themselves. The danger was visible to
adult but not to children. The children were held to be licensees, but there was
not breach of duty as the defendant had a right to assume that prudent and
reasonable parents or guardian would not allow their children to venture into
open spaces without exercising any control or without first ensuring that the
place was safe.

Here, Chenta cannot understand the notice with symbol skull head and
crossbones represent the poisonous as she is just a five years old child. Chentas
parents did not look closely to her when she was wandering to the bush. From
here, Chenta can sue Kiara and Seri Sutera with the notice that she cannot
understand and caused her illness. However, Kiara and Seri Sutera can raised
the defence back to the parents of Chenta for not taking good care on her.

Issue 3:
Whether Kiara Trust and Seri Sutera can raise defence on Maria for the injuries.

Law and Application

An occupier who is sued may raise the defence if volenti non fit injuria or that he
has put up a sufficient notice or warning. Notices may be in the form of a
warning, or an exclusion clause. It may also take the form of a device which
prevents visitors from getting into contact with the danger. In case Ashdown v
William Samueis & Sons, the court held that an exclusion clause may be raised
as a complete defence if the clause is clear and sufficient.

In this case, notice was states at the main entrance to the park that the occupier
will not take responsibility for any injury or damage suffered while in their
premises. Kiara and Seri Sutera may defence the claim on Maria that Maria
should foresee any injury that will be happened. However, Maria can argue that
the danger of the pool is too hidden as she cannot observe based on the eye
measurement. In addition, Kiara and Seri Sutera never put any signboard for the
measurement of the pool as a guideline for the public which this is the failure for
the occupier to ensure the safety of their property usage. Thus, Kiara and Seri
Sutera will be liable for the Maria injuries.

Issue 4:
Whether Kiara Trust and Seri Sutera can raise defence on Chentas parents for
not taking good care to Chenta.
From the notice at the main entrance did also mention that children must be
accompanied and supervised by responsible adults. Management team did give
a sufficient notice that parents should play their role to take care the child. When
Chenta run in the bush with the companion of her parent, the incident will not
happened as adult can understand the symbol of poisonous and therefore will
stop their kid to take the dangerous action. This is obviously the contributely
negligent by the parents and the claim from Chenta will not be success as Kiara
and Seri Sutera will not liable for her injury.

As the conclusion, Kiara Trust and Seri Sutera will only held liable to Maria
injuries but not Chenta injuries.