Travel Reference
In-Depth Information
considered to have given an absolute guarantee of
the safety of the premises. Nevertheless, the duty
is more than an ordinary duty of reasonable care,
and has been described rather as a duty to see that
care is taken. Thus, the occupier is liable not only for
the negligence of himself and his servants but also
of that of independent contractors and previous
occupiers. In the case of Maclenan v. Segar [I917] 2
K.B. 325, that plaintiff is a guest in a hotel who was
injured in a fire which was caused by the negligence
of contractors employed by a previous owner to the
remodel the kitchen area of the hotel. The nature of
the duty owed to her was expressed in the follow-
ing terms: “Where the occupier of premises agrees
for reward that a person shall have the right to enter
and use them for a mutually contemplated purpose,
the contract between the parties (unless it provides
to the contrary) contains an implied warranty that
the premise are as safe for that purpose as reason-
able care and skill on the part of anyone who can
make them. The rule is subject to the rule that the
defendant is not to be held responsible for defects
which could not have been discovered by reasonable
care or skill on the part of any person concerned
with the construction, alteration, repair or main-
tenance of the premises it matters not whether the
lack of care or skill be that of the defendant or his
servants, or that of an independent contractor or
his servants, or whether the negligence takes place
before or after the occupation by the defendant of
the premises.”
In Culvert v. Stollznow (19821 1 N.S. W.L. R.
175) the New South Wales Court of Appeal held
that a restaurant patron was to be treated as an
invitee so far as the structural condition of the
premises was concerned, albeit that his contract for
the provision of food and drink would contain a
term, implied in fact, that he had a right to remain
on the premises during the meal. Drinkers in hotels
are also to be treated as invitees instead of contrac-
tual entrants (Whiteman v. Boyd [1962] N.S.W.R.
328). However, in Branninen v. Harrinnton (1921)
37 Times L.R. 349, a restaurant customer is con-
sidered a contractual entrant. The Court appears
to have thought that the relevant distinction was
not between contracts whose main purpose was
the provision of accommodation on the part of the
premises where the plaintiff was injured, and those
where the use of the premises was merely incidental
to some other contract. Rather a distinction should
be drawn between contracts by virtue of which the
plaintiff could be said to have 'bought' the right to
enter the premises and those which merely entitled
him to remain on or use the premises. Even a the-
atregoer or sporting spectator would not be entitled
to the higher duty as the main purpose of their con-
tracts is not accommodation in the premises but the
viewing of a spectacle. However, it may be queried
whether the distinction between a contractual right
to enter and a contractual right to remain draws
the line at the right point. It would seem that there
is a further requirement, namely that use of the
premises was central to or the main purpose of the
contract, rather than merely ancillary or incidental
to it. (Winfield & Jolowicz on Tort, 1984; J.G. Flem-
ing, The Law of Torts, 1987) Furthermore, bearing
in mind that the rationale for the imposition of a
higher duty on the occupier towards contractual
entrants is that the occupier is being paid for grant-
ing permission to enter, it is no doubt necessary that
the entry should be for a purpose beneficial to the
contemplated purpose or at any rate that it should
be for a mutually contemplated purpose.
It seems that even those who do qualify as con-
tractual entrants may be disentitled to the higher
duty if the injury occurs on a part of the premises
to which the public is entitled to resort, since here
the permission to enter does not derive from the
contract. Thus, it has been said in Calvert v. Stol-
lznow [I9821 1 N.S.W.L.R. 181: “a paying guest in
a hotel may be a contractual entrant upon those
portions of the premises reserved for paying
guests, because he has paid to enter them. But he
may be an invitee in the hotel's public restaurant.
Similarly, a visitor to the theatre may be an invitee
in the foyer, although a contractual entrant to the
auditorium to which his ticket admits him. He may
be an invitee in the lavatories if they are open to
the public; but otherwise if they are reserved for
holders of a ticket to the performance.”
3
SURVIVAL OF THE 'UNUSUAL DANGER'
CONCEPT
It appears that the Malaysian Courts often classify
the legal entrant who enters into premise which
benefits the occupier as invitee and hence, applied
the concept of unusual danger. In the Malaysian
case of Lee Lau & Sons Realty Sdn Bhd v Tan Yah
& Ors [1983] 2 MLJ 51, the appellants operated a
brick-making factory. They also owned a forklift
machine which was under the management of one
Tan Kam Sing. While repairs were being affected
to the forklift, Tan Kam Sing (the deceased)
was injured and he later died from his injuries.
In this case, the court started to discuss a bit on
the extent of duty of care by occupier. Here, the
court decided that the invitor's duty is confined to
protection against unusual dangers, that is, those
not usually found in carrying out the task which
the invitee has in hand and the onus of pleading
and proving 'unusual' danger which the appellants
knew or ought to have known rests on the respond-
ents. Thus, this is in line with the case of Lau Tin
Sye pertaining to the standard of care used.
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