Tort Of Negligence: Occupier's Liability

• Published date: 18 November 2022
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Personal Injury, Professional Negligence, Construction & Planning, Real Estate
• Law Firm: Kevin Wu & Associates
• Author: Mr Kevin Wu and Zarul Farrid

In mid-October 2022, two people were injured when a lift they were riding plunged down from the eighth floor to the ground floor of a Condominium in Brickfields, Kuala Lumpur. ¹ Who is liable for this accident?

Before we proceed to initiate any legal proceedings, we need first to identify the parties that are liable for the incident. In this article, we will briefly discuss the relevant law applicable to explain the cause of action before initiating any legal action. The answer for the question posted earlier depends on who has control over the building/premises.

In Malaysia, there are no corresponding statutes enacted so the law on occupier's liability is based on common law principles. As such, cases on occupier's liability would therefore come under the tort of negligence.

The meaning of Occupiers

In general, it is settled law that a person who has sufficient degree of control over a premise is considered as an occupier. An occupier's liability arises in a situation where the premise is not safe as it should reasonably be, and this defective state causes injury or damage to the entrants/visitors. Before we proceed further, we need to understand the meaning of an occupier which will be explained in detail herein.

Lord Denning in Wheat v. E Lacon & Co Ltd [1966] AC 552 has outlined the meaning of Occupiers as follows:

"occupier" is simply a convenient word to denote a person who has sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on the premises. Whenever 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 is that he has some degree of control. He may share the control with others. Two or more maybe occupiers...

In Salmond on Torts, 14th edn (1965) p 372, it is said that an "occupier" is "he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons."... There is no doubt that a person who fulfills that test is an "occupier". He is the person who says "come in". But I think that test is too narrow . There are other...