In Malaysia, we do not have an Occupier Liability Act. However, Section 3 of the Malaysian Civil Law Act 1956 provides that the Malaysian Courts shall apply the Common Law of England and the Rules of Equity as administered in England.

As such, applying English law, occupier(s) of premises owe a duty of care to all who enter into their premises. Failing to discharge such duty, the occupier(s) can be held liable when personal injury or harm has occurred on the premises.

Who is an Occupier?

There can be more than one occupier of a premises at the same time, all of which owes a common duty of care towards their visitors. Who is an occupier depends on “who is in control of the premises”, and “the circumstances in which the damage or injury was suffered”. Note that an occupier does not have to be someone who owns a proprietary interest or possession over the land. A duty of care is also extended to those who assume responsibility to perform professional or quasi-professional services on the premises.

For example, when a premises is rented, the claim would be brought initially against the occupier (the tenant) when an injury has occurred. However, if the injury occurred because of the disrepair of the premises, the landlord or the contractor in charge would be in the next defendants in line.

What is a Premises?

A premises covers any fixed or movable structure, such as a warehouse, car park, lift, scaffolding, ladders and chairs.

Duty to Lawful Visitors:

The occupier must take reasonable care to make sure that the visitor will be reasonably safe in using the premises for the purposes for which the visitor is invited or permitted to be there. ‘Visitors’ can be anyone to whom an occupier gave any invitation or permission to enter or use the premises.

The degree of care towards visitors varies, depending on the type of visitors and the specific circumstances. For example, an occupier must be prepared for children to be less careful than adults, thus, owing a higher duty of care towards children. By contrast, an occupier owes a lesser duty towards those with specialist knowledge of particular hazards, for instance, technicians.

How to Restrict/Discharge a Duty?

Note that the duty is to ensure the visitors are safe, not the premises. Hence, an occupier can discharge his duty through putting clear and visible warning signs or barriers to alert the visitors of the unsafe aspects of the premises.

The occupier will not be liable if the visitor willingly accepts the risks of danger despite the warnings and/or barriers.

Duty to Non-Visitors/Trespassers:

An occupier also owes a duty to “non-visitors” (ie: trespassers) in respect of any risk of injuries on the premise if:

• The occupier is aware of the danger on the premises or has reasonable ground to believe that it exists;

• The occupier knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger;

• The risk is one against which, in all circumstances of the case, the occupier may reasonably be expected to offer some protection”

The duty may be discharged by taking reasonable steps to give warning of danger concerned or to discourage persons from incurring the risk, or entering into the vicinity of the danger. No duty is owed in respect of risks willingly accepted by the trespassers.