NAME OF GROUP MEMBERS: 1) HUSNA BINTI ABD RAZAK (1627940)

2) FARWIZAH AQILAH BINTI ABDUL

KADIR (1624292)

INSTRUCTOR’S NAME: DR. FARHEEN BAIG BINTI SARDAR

BAIG

SECTION: 2

TUTORIAL TIME: THURSDAY, 11.00 AM- 12.00 PM

PRESENTATION TOPIC: OCCUPIERS’ LIABILITY

 PLAINTIFF COUNSEL

1) SOME YOUNG MEN V WHITAKER & ANOR

The facts stated that the young men are used to camp in the mansion grounds just
to have fun as they were in Fraser’s Hill for a year long research project. Even though
they did not asked for the permission at the first place, the caretaker never stopped
them from entering the premises of the mansion and just sometimes looking at them
from the balcony above. One unfortunate day, they were mauled by Mr. Whitaker’s
fierce dog. Thus, the issue that arise in this case is whether the defendants as the
occupier are liable towards the injury suffered by the plaintiff.

To determine whether the occupiers are liable or not, we have to identify firstly,
the plaintiff is in which category of entrants and secondly, what are the standard care
required by the defendants to the plaintiff. An occupier is a person who has an
immediate supervision and control of the premises and the power of permitting or
prohibiting the entry. Based on the facts provided, the defendants are Mr. Whitaker as
he is the caretaker of the mansion as well as Mr. Saville as he is the manager of the
mansion. Mr. Charles cannot be considered as an occupier because he already
entrusted the mansion to the caretaker and the manager. Meanwhile, the plaintiffs are
the young men who are considered as licensees which means a person who enter the
premises with the consent or invitation of the occupier for a non-business purpose.
 As related to the present case, my client entered the premise for many times but
the defendant never stopped them from doing so, thus they are considered as the
entrant by “implied permission”. In Lowery v Walker1, an occupier of land who
knows that members of the public are in the habit of going on to his land and does
nothing to prevent it, may be deemed to have licensed them to do so. In this case, a
farmer knew that people were trespassing on his land and using it as a shortcut. He
wished not to take legal action, as some of the trespassers were his customers.
However, one day he placed a vicious horse on his land, which injured the claimant.
The court held that a licence was said to have been granted to the claimant through
repeated trespass. The rule could be applied in the present case whereby the defendant
never stopped the plaintiffs or even remind them not to enter the premise for such a
long time. Only by looking at the plaintiffs from the balcony could not be considered
as stopping them from entering the mansion, hence the plaintiffs are considered as
entrants with implied permission.

The duty of occupier to the licensees has been stated in Robert Addie & Sons
(Collieries) Ltd v Dumbreck2 as Lord Hailsham LC said, in the case of persons who
are not there by invitation, the occupier has no duty to ensure that the premises are
safe, but he is bound not to create a trap or to allow concealed danger to exist upon
the said premises, which is not apparent to the visitor, but which is known or ought to
be known to the occupier. Therefore, a duty of care arises when two factors are
established which are the occupier’s knowledge and there exist a concealed danger.

Regarding the first factor to establish the duty of care of an occupier, initially the
occupier would only held liable if he had actual knowledge as to the existence of
danger, but the liability has extended to situations in which he ought to have known of
the existence of the danger. In Hawkins v Coulsdon & Purley UDC3, 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 realise the extent of the danger. The plaintiff, a licensee,
descending after dark the steps of a house in the possession and under the control of
the defendants but then fell and suffered injury as a consequence of the defective

1 [1911] AC 10.
2 [1929] AC 358.
3 [1954] 1 QB 319.
condition of one of the steps, which, combined with the insufficiency of light,
amounted to a concealed and unusual danger. The physical facts which constituted the
danger were known to the defendants but they did not appreciate the risk involved.

Next, regarding the second factor to establish the duty of care of an occupier, the
case of Latham v R Johnson & Nephew Ltd4 is referred to. In this case, the court
stated that concealed danger consists of something hidden or concealed and the
element of surprise. The premise might look safe but is in fact a trap. In order to prove
that a danger is concealed, it is not necessary to show positive deception on the part of
the occupier. It is sufficient if the danger is one which the licensee was not aware or
could not be expected to be aware.

Applying the rules on the present case, during the time whereby the plaintiffs
entered the premise, there was no dog could be seen anywhere. The plaintiffs did not
even know that the defendant owned a dog in that mansion. However, the plaintiffs
have been attacked on one unfortunate day by the fierce dog because the defendant
did not lock the dog in its cage as usual. The dog came out of no where and the
plaintiffs could not expect that the dog will be appeared in front of them and mauled
them. Therefore, it is obvious that the dog is considered as a concealed danger as the
dog never showed up previously. There is an element of surprise and hidden danger in
this case. The defendant was obviously has the knowledge regarding the risk involved
if he did not lock the dog in its cage. The defendant should take care of the dog
because he surely knows that the dog can attack anyone as it sees any strangers that it
never have seen before as the nature of the dog itself is fierce. Other than that, the
defendant has never warned the plaintiff about the fierce dog, hence the plaintiffs
cannot be expected to take reasonable care of themselves in the circumstances.

In conclusion, the kind of danger that exist is the concealed danger and the
defendants as the occupiers know or ought to have known of the existence of the
danger but failed to not create a trap or to allow a concealed danger to exist upon the
premises. Therefore, they should be held liable on the injuries of the plaintiff.

4 [1913] 1 KB 398.
2) MR. SINGH V WHITAKER & ANOR

Mr. Singh is a milkman who has been supplying milk to the mansion for the past
20 years. Usually, Mr. Singh will use a shortcut to the front door by crossing an old
bridge. However, one day the old bridge had damaged and he fell into the river below
and injuring himself. Therefore, the issue that arise in this case is whether the
defendants are liable as the occupier on the injury sustained by the plaintiff.

In this case, to prove whether the occupiers are liable or not, we have to identify
firstly, the plaintiff is in which category of entrants and secondly, what are the
standard care required by the defendants to the plaintiff. An occupier is a person who
has an immediate supervision and control of the premises and the power of permitting
or prohibiting the entry. Based on the facts above, the defendants will be Mr.
Whitaker as the caretaker and Mr. Saville as the manager. Meanwhile, the plaintiff
will be Mr. Whitaker. The plaintiff is considered as an invitee which is defined as a
person who enters the premise by invitation whether expressly or impliedly by the
occupier, for a purpose which is of material or economic benefit both to themselves.
The invitee is classified into two which are the legally authorised entrants or business
visitors. In this present case, Mr. Singh (the plaintiff) is a business visitor who supply
the milk to the mansion. He is considered as a person who enter the premise for a
materialistic reason and who actually bring economic advantages to the occupier.

As referred to the case of Indermaur v Dames5, the duty of an occupier to the

invitee is to take a reasonable care to prevent damage from unusual danger, of which
the occupier knows or ought to know and of which the entrant does not know. It is not
easy to determine whether something constitutes unusual danger because it is a matter
of fact and degree in all the circumstances. It is different according to people.
Therefore, the duty of an occupier arises if the occupier knows or ought to have
known the danger, the danger is unusual to the plaintiff, the danger is not known to
the plaintiff and the occupier has failed to reasonably avoid the damage either through
notice, guarding or warning lights.

5 [1866] LR 1 CP 274.
 What constitutes unusual danger is a question of fact and depends on the degree
of danger in each case. What is unusual at one time or place may be usual at another
time in another place.

Referring to the case of Indermaur v Dames6, the defendant in this case was held
liable for not protecting the plaintiff, an invitee, from the danger. The danger in this
case is considered as unusual danger known to the defendant and even though the
plaintiff as an invitee must take reasonable care of his own safety, an occupier must
reasonably avoid any damage that could arise from an extraordinary danger that is
known to him or ought to have been known to him. The plaintiff who was a gas fitter,
fell through a hole in the floor and injured himself while trying to fix pipes at the
defendant’s sugar factory. Willes J stated, “And with respect to such a visitor at least,
we consider it settled law, that he, using reasonable care on his part for his own safety,
is entitled to expect that the occupier shall on his part use reasonable care to prevent
damage from unusual danger which he knows or ought to know..”.

To apply the rules in the present case, firstly, the plaintiff did not know the
condition of the danger of the bridge. The plaintiff has been using the same old bridge
for the past 20 years without any problem. He could not foreseen that the bridge will
collapse because all these while, when he walked on the bridge, it is still stand strong
and no sign could be seen that the bridge will be collapsed. Secondly, the occupiers
did not take a reasonable care to prevent the plaintiff from unusual danger because
they did not put any sign, notice or board or even put a guard indicating that the
bridge is not safe. For a person who has been walking on the bridge repeatedly for the
past 20 years, it is unusual that the bridge will be damaged. He really believed that the
bridge is still strong because the occupiers did not have any effort to prevent the
danger by saying or indicating that the bridge is not safe. Therefore, it could be stated
that the danger is unusual to the plaintiff.

In conclusion, the defendants did not take a reasonable care to prevent damage
from unusual danger and this clearly showed that the defendant will ought to be liable
of the injury suffered by the plaintiff.

6 [1866] LR 1 CP 274.
3) MRS. BECKHAM V WHITAKER & ANOR

Mrs. Beckham and her husband is a newly-wed couple who booked the mansion
for their honeymoon. On the first night, Mrs. Beckham had some trouble to sleep as
she feel scared of the sound coming from the mansion. She believed the mansion was
haunted. She ran as fast as she could to go to the toilet that was situated downstairs
due to her fear. Unfortunately, she slipped on the rug and fell and her legs were
broken. It should be noted that the doors were creaking as the wind was howling and
this makes the situation more scarier. Therefore, the issue that arisen in this case is
whether the defendants as the occupier of the premise are liable on the injury suffered
by the plaintiff.

In this case, to prove whether the defendants are liable or not, we should identify
firstly the plaintiff is in which category of entrants and secondly, what are the
standard care required by the defendants to the plaintiff. An occupier is a person who
has an immediate supervision and control of the premises and the power of permitting
or prohibiting the entry. Based on the facts provided, the defendants will be Mr.
Whitaker and Mr. Saville, meanwhile, it should be noted that the couple is the
plaintiff and they are the contractual entrants which lies under the main purpose
entrants. Main purpose entrants is for the person who enters the premises for the
purpose of occupying it and who has paid to be on premises such as a tenant or a
guest in a hotel. The occupier duty is to ensure that the premise is safe and adequate
for the purpose for which it is contracted out and the occupier must employ and
exercise reasonable steps and expertise in the performance of his duty.

Referring to the case of Wheat v Lacon7, Lord Denning said wherever 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. Based on the
concept of an occupier, Mr. Whitaker is a caretaker that has a responsibility to ensure
that the premise is safe for everyone. A caretaker should has all knowledge about the

7 [1966] AC 552.
premise that he taken care of including the damage happened to some parts in the
house. Mr. Saville should has reminded Mr. Whitaker to check very single defects in
the mansion and reported to him. The duty of a manager is not only to check whether
the premise is safe to be lived in, but also to ensure that no dangers could present in
the premise.

In the case of McLenon v Segar8, the court decided that the Defendant was liable
for failing to ensure that the premises was safe for habitation, as there was no
emergency way out when the fire broke out. McCardie J said that when an occupier
for a reward, agrees that another person will have the right to enter and use the
premises for an agreed purpose, then the agreement contains an implied warranty that
the premises would be safe for that purpose as far as can be reasonably expected.

Other than that, in the case of Gillmore v London County Council9, the court
held the defendant liable for the injury that the plaintiff suffered when she fell on a
slippery floor as they failed to ensure the suitability of the premise for a physical
fitness class. The duty owed to, and the standard of care required for contractual
entrants are the highest amongst all the different types of entrants. The danger on the
premises need not be unusual or hidden before the occupier can be found liable.

As in this present case, Mr Whitaker failed to ensure that the door was in a good
state. For a person who is easily feel scared as Mrs. Beckham, the simple sound can
affect her feelings which can make the plaintiff react unnecessarily. Secondly, the
defendant failed in making sure that the rug that was placed on the floor was safe to
be walked over causing the plaintiff slipped and broken her legs. The defendant
should have known that the slippery rug did not have enough friction grip and it can
make anyone who steps on it has the chances to fell. It is reasonable to expect that the
danger might happen to those who did not aware that the rug is slippery.

As a conclusion, the defendants had not established their duty of care as the
occupier and they should be liable for the injury of the plaintiff as they failed to make
sure that the premise are as safe for the purpose for which it is contracted out.

8 [1917] 2 KB 325.
9 [1938] 4 All ER 331.
BIBLIOGRAPHY

1. Gillmore v London County Council [1938] 4 All ER 331.

2. Hawkins v Coulsdon & Purley UDC [1954] 1 QB 319.

3. Indermaur v Dames [1866] LR 1 CP 274.

4. Latham v R Johnson & Nephew Ltd [1913] 1 KB 398.

5. Lowery v Walker [1911] AC 10.

6. McLenon v Segar [1917] 2 KB 325.

7. Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] AC 358.

8. Wheat v Lacon [1966] AC 552.