QSA207 : CONSTRUCTION LAW II

Diploma in
Quantity Surveying
Tort of Negligence in Construction
(CFAP114)

OCCUPIER’S LIABILITY

Prepared By :

Miss Ruth Lua Ejau Miss Nur’Ain Ismail

UiTM Sarawak UiTM Perak Branch
Branch
DISCLAIMER
This notes are intended for educational purposes only as well as
to give basic understanding on principles in Tort of Negligence.

Any details, please free to refer anyone who are expert in this area
or do extra homework by referring to the books related to the Tort
of Negligence.
COURSE LEARNING OUTCOME
At the end of the series, students should be able to:

• DEMONSTRATE the principles in Tort of Negligence in

construction related to quantity surveying practice.
06 Occupier’s Liability in
Malaysian Construction
Industry
Occupier’s Liability in Malaysian Construction Industry

Occupier’s liability is based on common law Unlike the United Kingdom, which has the
principles since there are no corresponding Occupiers Liability Act 1957.
statutes enacted specifically for this purpose.

However, if harm occurs to a visitor while they

are on your premises, you can still be sued
under the Civil Law Act 1956.
Occupier’s Liability in Malaysian Construction Industry

The concept of occupier’s liability arises when a person

who has a sufficient degree of control over a
premise fails to maintain it in a reasonably safe
condition, resulting in injury or damage to entrants
or visitors.

Lord Denning’s definition of an “occupier” includes anyone

with some degree of control over the premises, even if
they do not explicitly say “come in” or have exclusive
occupation.

Therefore, in the context of Malaysian construction, the

Source: [Link] main contractor overseeing the entire construction site
duties/occupiers-liability/ may be considered the occupier due to their overall
charge and control.
 Case Studies on Occupier’s Liability
AMF International v Magnet Lim Chin Yok Co Ltd v Malayan Insurance
Chang Fah Lin v United Engineers
Bowling (1968) Co Inc [1975] 1 MLJ
(M) Sdn Bhd (1978)
• Both the general contractor • The main contractor was held liable as
• A contractor with overall charge,
and the employer were the occupier of the site for injuries to a
control, and possession of a
considered occupiers with subcontractor’s workers caused by
construction site can be
respect to a specialist direct unsafe equipment provided by the
considered an occupier and owes
contractor. main contractor.
a duty of care to lawful workmen
• A subcontractor can also be an
on the site.
occupier of the whole or part
Lembaga Kemajuan Tanah Persekutuan v
of a site.
Mariam & Ors (1984)
Mohd Sainudin b Ahmad v • An employee of an unauthorized
Who Hup (Pte) Ltd v China Insurance Consolidated Hotels Ltd and Anor subcontractor is an invitee, not a
Co Ltd (1978) (1991) trespasser.
• The contractor was deemed an • The contractor, not the • The occupier has a duty to ensure the
occupier due to having sufficient developer, was deemed the premises are safe for the invitee’s
control over the construction site. occupier because of site intended purpose.
• A worker was electrocuted by control.
tripping over live cables, and the • The presence of the China Insurance Co Ltd v Who Hup (Pte)
contractor breached their duty by developer’s architects and Ltd [1973]
failing to warn the worker of this supervisors did not constitute • A subcontractor’s employee is
concealed danger. control. considered a licensee on the
construction site.
Case Studies on Occupier’s Liability : Conclusion
Occupier of Construction Site:
Both general contractors and employers, including subcontractors, can be considered occupiers of a
construction site, depending on their level of control and possession.

Duty of Care:
Occupiers, especially contractors with significant control over a site, owe a duty of care to all lawful
individuals on the site, including workers, licensees, and invitees.

Control and Responsibility:

The degree of control over the site is a key determinant in establishing who the occupier is. Contractors
with overall charge and control are typically seen as the occupiers.

Status of Workers:
Employees of subcontractors, even if unauthorized, are considered invitees or licensees rather than
trespassers, thereby entitling them to safety protections from the occupier.

Developer's Role:
Developers are generally not considered occupiers if they do not have direct control over the site, even if
they have supervisors or architects present.
a. Occupier’s Liability on
Independent Contractors
Duties to contractor not Occupier
Occupiers may expect independent contractors (workers) to guard against any risks which are ordinarily
incidental to their employment, so far as the occupier leaves them free to do so.

For example, a scaffolder’s work is inherently dangerous and

the occupier is not expected to take responsibility for factors
inherent in the scaffolder’s job.

But if he were to be injured by a loose tile, then the occupier

may owe a duty of care.

Clare v Whittaker (1976):

The occupier of a building site was not liable to the experienced workmen of an independent roofing
contractor for failing to urge them to use the crawling boards which had been provided for their protection.
Occupier’s Liability on Independent Contractors
When an injury occurs due to the faulty work of an independent contractor, the occupier is generally not
liable if they can demonstrate that reasonable steps were taken to ensure the contractor's competence
and the quality of the work.

This principle was upheld in Green v Fibreglass Ltd (1958), where the occupier was not held liable for
injuries caused by faulty wiring done by an independent contractor, and in Haseldine v Daw (1941), where
the occupiers were not liable for a fatal accident involving a lift maintained by competent engineers.

However, in the case of larger scale construction projects, as seen in AMF International v Magnet Bowling
(1968), the court ruled that it is not sufficient for the owner to merely engage a competent contractor; they
must also ensure the work is supervised by a qualified professional such as an architect or surveyor.

This distinction underscores the increased responsibility on the occupier to ensure proper oversight on
complex projects.
b. Occupier’s Liability on
Public and Private Rights of
Way
Occupier’s Liability on Public and Private Rights of Way
An occupier does not owe a duty of care to individuals exercising a public or private right of way.

This principle is evident in Gautret v Egerton (1867), where it was established that the owner of land
with a right of way is not responsible for non-feasance or failing to perform repairs, towards members
of the public.

Similarly, in Holden v White (1982), the court held that a milkman injured by a defective manhole cover
while using his private right of way could not sue the landowner.
Occupier’s Liability on Public and Private Rights of Way
However, the case of Lim Seow Wah & Anor v Housing Board and Anor (1991) provides a different
context.

Here, the High Court ruled that the deceased, who was injured by a falling object at a coffee stall on a
construction site, was an invitee rather than a trespasser, given the public access to the stall.

The court found that the defendants breached their duty of care to the invitee by not implementing
safety measures like a safety net during potentially hazardous activities.

This distinction highlights the occupier's obligation to foresee potential hazards and protect invitees,
contrasting with the lack of duty owed to those merely exercising a right of way.
c. Occupier’s Liability on
Trespasser
Duty of Humanity
The duty of common humanity is a legal obligation owed by occupiers to trespassers and other non-
visitors in relation to the risk of injury on their premises. This duty arises when the occupier is aware of a
danger on their property, knows that trespassers might enter, and can reasonably be expected to take
some measures to protect against the risk of injury.

This principle was established in British Railways Board v Herrington (1972), where the House of Lords
ruled that an occupier must take steps to prevent accidents if they have the knowledge, skill, and
resources to do so.

In Herrington, a child trespassed onto British Railways land through a defective fence and was
electrocuted. British Rail was found liable because they could have easily and cheaply mended the fence
to prevent access to the dangerous area. The court emphasized the high level of danger, the likelihood of
trespass, and the relative ease of eliminating the danger for a well-resourced organization like British Rail.

The principle in Herrington was applied in Lembaga Letrik Negara Malaysia v Ramakrishnan (1982),
where a ten-year-old boy was electrocuted after climbing an electric pole adjacent to a public footpath.
The Federal Court held that the boy was a trespasser and that the occupier owed a duty of care based
on common humanity. LLNM was found liable because they failed to erect warning signs and anti-
climbing devices, even though they knew the pole was within easy reach of children and posed a hidden
danger.
Child trespasser
Child trespassers are given special consideration under this duty.
Occupiers must be prepared for children to be less careful than adults and
may not be fully aware of property boundaries and inherent dangers.

Children can have an implied license to enter premises if they are

attracted by something fascinating but potentially dangerous, known as
"traps" or "allurements." However, occupiers can expect very young
children to be accompanied by adults.

In Pannett v McGuiness & Co (1972), a five-year-old child was injured

while playing on a building site where burning rubbish was left
unattended. The occupier was held liable because the workmen knew of
the children's presence and could have taken steps to prevent the
accident. The hazardous nature of the activity, the likelihood of trespass,
and the obvious attraction to children made the occupier's duty clear.
Occupier’s Liability on Trespasser
When determining whether an occupier has been negligent towards trespassers, several factors are
considered:

1. The gravity and likelihood of probable injury: The more severe and likely the potential injury, the
higher the duty of care required. For instance, construction sites, which are inherently hazardous,
necessitate greater precautions to prevent serious injuries.

2. The nature of the trespassers’ intrusion: The purpose of the trespass, whether it’s innocuous (like
children wandering) or malicious (such as burglary), influences the degree of duty. Innocent
trespassing, especially by children, typically requires the occupier to exercise more caution.
Occupier’s Liability on Trespasser
3. The nature of the premises: The inherent safety or danger of the premises plays a crucial role.
Dangerous areas, such as construction sites, require more stringent safety measures compared to
generally safe environments.

4. The occupier’s knowledge of the probability of trespass: If the occupier knows or should reasonably
foresee that trespassers, particularly children, are likely to enter the premises, they are expected to
take reasonable steps to prevent harm. Construction sites, for example, are known to attract children,
necessitating increased vigilance and protective measures.

These factors collectively help assess the extent of the occupier’s duty of care towards non-visitors and
determine if there was negligence in failing to prevent foreseeable injuries.
Duty to warn
An occupier can discharge their duty of care to trespassers by taking reasonable steps to warn of dangers
or discourage individuals from incurring risks. This can include:

1. Suitable Notice Boards: Posting clear and visible signs that warn of potential dangers, such as
"Danger: Keep Out.“
2. Fencing: Erecting barriers to physically prevent access to hazardous areas.
3. Oral Warnings: Verbally warning trespassers of the dangers present on the premises.
4. Chasing Away Trespassing Children: Actively discouraging children from entering dangerous areas.
Duty to warn
However, if the occupier knows (or should reasonably know) that a trespasser is in imminent peril, more
proactive measures are required. In such cases, a simple warning sign may not be sufficient.

For example, if there is an immediate danger, the occupier might need to take direct action to remove the
trespasser from harm.

For construction sites, specific precautions include:

1. Adequate Security: Ensuring the site is securely fenced and access points are controlled.
2. Centrally Placed and Visible Warnings: Posting warnings that are easily seen and clearly state the
specific dangers present.
3. Specificity of Warnings: Making sure the warnings are directly relevant to the potential hazards on
site.

It's important to note that it is not a valid defense for the occupier to claim that the visitor was made
aware of the risk. The occupier must take proactive steps to prevent harm, beyond merely informing of
the danger.
d. Defenses
Defenses
Generally, an occupier will not be liable in the following circumstances:

1. Negligence of an Independent Contractor: The occupier is not liable for the negligence of an
independent contractor provided they have ensured that the contractor is reasonably competent.

2. Effective Warning of Hazard: If the occupier provides a reasonably effective warning of a hazard, they
may discharge their duty of care. A genuine warning notice can be sufficient to avoid liability by
informing visitors of the risks and enabling them to avoid danger.
• Warning Notices vs. Exclusion Clauses:
• Warning Notices: Genuine attempts by the occupier to discharge their duty of care by
making visitors aware of hazards.
• Exclusion Clauses: Attempts by the occupier to avoid liability and the common duty of care,
often considered less genuine in protecting visitors.
Defenses
3. Volenti (Consent to Risk): The occupier is not liable if the visitor willingly accepts the risk. This
principle applies when the visitor is fully aware of the risk and voluntarily chooses to encounter it.

4. Contributory Negligence: If the injury or damage is partly due to the lack of care on the plaintiff’s
part, the occupier's liability may be reduced. Contributory negligence recognizes the visitor's
responsibility in taking reasonable care for their own safety.
e. Employer’s Liability
Employer’s Liability
The employer have the liability to their employees and their vicarious liability to third parties. It is
established through various judgments that employers owe a duty of care to each of their employees,
both under common law and statute law, for the protection of their employees. Employees can sue
for both negligence and breach of statutory duty.

The primary statutory requirements are found in:

1. Occupational Safety and Health Act 1994 (OSHA 94): This Act outlines the duties of employers
regarding the safety, health, and welfare of their employees.

2. Factories and Machineries Act 1967 (FMA 67): This Act sets specific rules and regulations to ensure
worker safety, including requirements for building operations, engineering construction, and
workplace conditions (e.g., floor strength, roof integrity, ventilation, and lighting).

3. Employees’ Social Security Act 1969: This Act provides compensation for employees suffering
industrial accidents or occupational diseases, administered by SOCSO.
Employer’s Liability
The duty of an employer to their employees is not absolute but is fulfilled by exercising reasonable
care, similar to the duty of care in general tort law [Wilsons & Clyde Coal Ltd v English (1938)] .

Key aspects of an employer's duty include:

1. Competent Employees: Employers must provide adequate supervision, instruction, and training. If
an employee is asked to perform a task for which they are not properly trained and injures a
coworker, the employer may be liable.

2. Adequate Plant and Equipment: This includes providing and maintaining protective devices and
clothing. Employers must also warn or encourage employees to use such equipment when
necessary.

3. Safe Premises: Employers must ensure that the workplace is as safe as reasonable care and skill
can make it. This includes maintaining floors, walkways, and stairways as specified in OSHA 1994.
Employer’s Liability
4. Safe System of Work: This encompasses the organization and execution of work, taking safety
precautions, and giving special instructions, especially to inexperienced workers. Employers must
take reasonable steps to implement a safe system of work.

An employer may be liable for an employee’s injury under the following circumstances (Uff, 1999):
1. If the injury is caused by the negligence of a fellow employee acting within the course of their
employment.
2. If it is caused by the employer’s breach of statutory duty.
3. If it is caused by the employer’s negligence.
f. Breach of
Statutory Duty
Breach of Statutory Duty
Statute law, established by Parliament through Acts, Regulations, or Statutory Instruments, imposes
various duties on organizations, including local authorities, statutory undertakers, and private
companies.

Breaching these statutory duties is technically a breach of statutory duty, and those responsible are
liable to penalties prescribed by the statute.

If a person or organization breaches a statutory duty, an injured party may bring an action in tort against
them, provided certain conditions are met:
1. The statute permits an action for damages for the specific breach.
2. The statute does not solely prescribe criminal sanctions without allowing a separate tort action.
3. The statute imposes a duty on the defendant, which they have breached.
4. The breach directly causes the accident, and the injury must be of the type the statute aims to
prevent.
5. The harm caused by the breach is not too remote.
Breach of Statutory Duty
In Ginty v Belmont Building Supplies Ltd (1959), the defendant provided the required safety
equipment, but the plaintiff did not use it, causing his own injury. The defendants were acquitted as
they had fulfilled their statutory obligations.

In Wong Soon San v Malayan United Industrial Co Ltd (1967), the defendants failed to provide
necessary safety equipment, breaching their statutory duty. However, the plaintiff's contributory
negligence reduced the liability of the defendants.

The construction industry must remain vigilant about relevant legislation and enforce compliance to
avoid multiple legal actions from contractors, employees, or other affected parties.
Q&A SESSION
Have any questions?

You may ask your lecturer in Class or any discussion platform.

Diploma in QSA207 : CONSTRUCTION LAW II
Quantity Surveying
(CFAP114)
CONSTRUCTION LAW
LECTURE SERIES
Tort of Negligence in Construction

THANK YOU