Accidents can happen anywhere, be it slipping on a wet floor in a shopping mall, tripping over an uneven step at a restaurant, or getting injured at a theme park. When such incidents arise from unsafe conditions, an important question arises: who is responsible?
Under the law of occupiers’ liability, property owners and occupiers are required to keep their premises reasonably safe for visitors. If they fail to do so and you are injured, you may be entitled to compensation. In this article, we will break down your legal rights, outline the responsibilities of property owners, and explore the steps to take if you have been injured on unsafe premises.
What is Occupiers’ Liability?
Occupiers’ liability is the legal duty of individuals or entities (occupiers) towards people lawfully entering their premises. An occupier is someone who has sufficient control over a property, regardless of whether they own it. This control creates a duty of care towards visitors to ensure that the premises are reasonably safe for their intended use.
The key element is occupational control, which means that the occupier must have a degree of authority or management over the property that allows them to take steps to prevent harm to visitors. This control may arise from their physical presence, their use of the premises, or the activities they conduct on the premises.
For example, a tenant renting a shop lot may be considered the occupier of that shop lot. At the same time, the landlord may remain the occupier of the common areas, such as staircases or lifts. Both parties can owe different duties of care depending on the areas they control.
Who is Owed a Duty of Care?
The occupier has a duty of care towards four distinct categories of entrants on a descending scale. In the Supreme Court case of Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, it was held that the occupier owes the highest duty towards persons who enter the premises by a contract and not so high in the case of invitees and so on.
1) Contractual Entrants
A contractual entrant enters premises based on a contractual agreement with the occupier. For instance, this includes employees at a workplace and guests at a theme park.
When A enters B’s premises under a contract, B’s duty to A is determined by the explicit terms of that contract. Since such terms are rarely specified, courts often rely on implied terms to fill in the gaps.
The courts recognise two standard implied terms: first, if the main purpose of entry was to use a specific structure (such as a viewing deck or a rollercoster ride), the occupier warrants that the structure is as safe as reasonable care and skill can make it; second, if the structure was merely ancillary to the visitor’s purpose (such as a staircase or bridge used to access another area), the occupier warrants only that they have taken reasonable steps to ensure the structure is reasonably safe.
2) Invitees
An invitee is a person who enters the premises on a business of interest both to themselves and the occupier. This includes customers visiting a store to browse products, as well as plumbers and electricians conducting repair work in a home.
The duty of care of an occupier towards an invitee is to exercise reasonable care to prevent harm from any unusual hazards that they are aware of or should reasonably be aware of (see: Lau Tin Sye v Yusuf bin Muhammad [1973] 2 MLJ 186.
The invitor (occupier) is responsible for safeguarding the invitee from “unusual” risks, meaning dangers not typically associated with the visitor’s purpose on the premises. It is the invitee’s responsibility to show the presence of such “unusual danger,” meaning that the invitor was aware of or should have been aware of the risk.
In Takong Tabari v Government of Sarawak [1996] 5 MLJ 435, the deceased, a customer at Public Bank, died in an explosion and fire caused by a gas leak from a corroded gas pipe in the bank premises. The gas supply was under the care and management of the Sarawak State Government.
The Court of Appeal held that the deceased was an invitee. The bank, as occupier, owed a duty to prevent damage or injury from unusual dangers it knew or ought to know and which the invitee did not know.
A bank customer would not expect to find a dangerous substance like gas in a bank, making it an unusual and unknown danger to the deceased. The bank knew or ought to have known of the danger, as the smell of the gas had been present for about a month; yet, the bank failed to take reasonable measures to address the risk. The bank was thus liable for breaching its duty as occupier, and the court apportioned liability between the Government of Sarawak and the bank at a ratio of 90:10.
3) Licensees
A licensee is a person who enters the premises with the explicit or implied consent of the occupier, which is granted as a matter of grace or pleasure rather than as part of a business arrangement. An example of this would be a guest invited to dinner, or using public amenities like a library or a public toilet.
The occupier has a responsibility to inform the licensee about any hidden dangers or traps that he either knew about or should have been aware of. Suppose he was aware of the physical circumstances that posed a risk, and a reasonable person with that knowledge would recognise those circumstances as a trap or concealed danger. In that case, the occupier is considered to have knowledge of the risk, even if he personally did not recognise it as such.
4) Trespassers
A trespasser is a person who enters premises unlawfully, without the occupier’s permission. For instance, someone who enters a farm to steal durians or to take a shortcut without permission is considered a trespasser.
An occupier does not owe a duty of care to all trespassers. This duty of care only arises when the occupier is aware of facts indicating a significant likelihood that a trespasser may enter a hazardous area that the occupier has created or is aware of. When this duty is established, the occupier fulfils it by taking appropriate actions guided by common humanity, considering their own circumstances and financial constraints.
What to Do If You’re Injured on Someone’s Property
If you sustain an injury while on someone’s premises, whether private or public, your actions immediately after the incident can significantly impact your ability to claim compensation under occupiers’ liability laws. Here’s what you should do:
- Seek Medical Attention
Your health should always come first. Even if the injury appears minor, consult a medical professional without delay. Medical documentation will be essential if you proceed with a legal claim. - Report the Incident
Notify the property owner, occupier, or manager as soon as possible and request that an official incident report be prepared and ensure that you obtain a copy for your records. - Document the Scene
Where possible, take photographs or videos of the exact location and any contributing hazards (e.g., slippery surfaces, poor lighting, or structural defects). Note the date, time, and any relevant environmental conditions. - Gather Witness Information
If there were any witnesses to the incident, collect their names and contact details. Their statements may later serve as crucial corroborative evidence. - Preserve Evidence
Retain any items involved in the incident, such as footwear or clothing, especially if they are damaged or bear signs of the accident (e.g., tears, stains, or debris). - Avoid Premature Statements
Refrain from making admissions of fault or providing detailed statements to property owners, insurers, or third parties until you have sought legal advice. Innocuous remarks may be misconstrued and used to weaken your claim. - Seek Legal Advice
Engage a lawyer experienced in personal injury and occupiers’ liability matters. Legal counsel will assess the circumstances, advise you on the duty of care applicable to your situation, and guide you through pursuing compensation. - Act Within the Limitation Period
In Malaysia, personal injury claims, including those under occupiers’ liability, must generally be filed within six years from the date the cause of action arises, as provided under Section 6(1)(a) of the Limitation Act 1953. However, where the occupier is a public authority, such as the Government of Malaysia or a state government, a shorter limitation period of 36 months applies under Section 2(a) of the Public Authorities Protection Act 1948 (PAPA). Failure to initiate legal proceedings within this timeframe may result in your claim being time-barred, regardless of its merits.
Conclusion
Whether you are a visitor who has suffered an injury or a property occupier facing a potential claim, understanding your rights and responsibilities under the law of occupiers’ liability is essential. Accidents on premises can lead to serious consequences, and understanding your legal rights can make all the difference in how you respond and recover.
At MahWengKwai & Associates, we provide comprehensive legal advice to individuals who have been injured due to unsafe premises, guiding them on their rights and available remedies. We also assist occupiers in understanding their legal obligations and defending claims where appropriate, helping them navigate these challenging situations with confidence.
By Jason Lim and Elissanur Suraya
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
