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In-Depth Information
In the Malaysian case of
Takong Tabari v. Gov-
ernment of Sarawak & Ors
[1996] 5 MLJ 435, an
explosion occurred in Public Bank which caused
deaths and injuries to the customers inside the
premise. The court held that as the occupier, Pub-
lic Bank owed a duty to the deceased, an invitee,
to prevent damage or injury to the invitee due to
unusual dangers on the premises which it knew or
ought to know and which the invitee did not know.
Since Public Bank, through its staff, did not take
any reasonable or reasonably sufficient measures to
meet its duty as the occupier towards the deceased,
the plaintiff therefore had established, on a balance
of probabilities, the liability of Public Bank as the
occupier of the premises. One of the issues here is
whether there was a breach of duty by the Public
Bank as an occupier. The court elaborates little on
the invitee. Before making any finding of liability
as an occupier, it must be determined whether the
deceased was an invitee or lawfully in the premises
at the material time. He was in fact a customer of
Public Bank. He was in the premises for a business
purpose of material benefit to the occupier, Public
Bank. There was in fact a common interest between
the deceased and Public Bank. Accordingly, the
deceased could not be described as anything else but
an 'invitee' under common law. This shows that an
invitee is a person who has a common interest with
the occupier. Like any other cases, the court did not
dispute the category of entrant of the plaintiff.
In this case, the court here explains about the
unusual danger or unusual risk. In respect of the
meaning of 'unusual risk', the judge quoted the case
of
London Graving Dock Co Ltd v Horton
[1951]
AC 737, which said that an 'unusual' risk is one
which is not usually found in carrying out the task
which the invitee has in hand. In the present case,
the premise was used for banking business. Surely,
no customer would expect to find gas, an admit-
tedly dangerous thing, in such a place. Thus, the
danger was unusual to the deceased and unknown
to him at that material time. Accordingly, due to
lack of any action taken by the staff of Public Bank
even with the smell prevailing for about a month,
the Public Bank through its staff did not take any
reasonable or any reasonably sufficient measures to
meet its duty as the occupier towards the deceased,
an invitee. This case is more comprehensive in the
sense that it illustrates the standard of care required
towards an invitee which is to take reasonable care
to prevent injury arising from unusual danger.
entrants. In the case of
O'Leary v. Coenen
(251
N.W.2d 746, 749-50 (N.D. 1977), the plaintiff, an
insurance salesperson, was bitten by the defend-
ant's dog while approaching the defendant's farm
to carry out business. The plaintiff 's presence was
uninvited and unexpected. The North Dakota
Supreme Court held that “the status of an entrant,
a licensee or an invitee is no longer solely deter-
minative of the duty of care owed such entrant.”
The court unanimously held it would generally
apply a single standard of reasonable care under
all the circumstances in premise liability cases. In
accordance with ordinary principles of negligence,
this standard includes foreseeability of plaintiff 's
presence, likelihood and seriousness of the injury
and the burden of avoiding the risk of injury. In
the case of
Clayton W. Williams, Jr., Inc. v. Olivo
(912 S.W.2d 319; Tex. App.-San Antonio 1995),
an employee of an independent contractor sued
Clayton Williams, Jr., Inc., the operator of an oil
and gas lease for personal injuries to his back when
he fell from a pipe rack and landed on a piece of
equipment left lying on the ground. The court held
that the evidence was sufficient to support the
verdict under a simple negligence theory because
Clayton Williams and its supervisor retained some
right to control Olivo's work as an employee of a
sub-contractor.
This case demonstrates how the court is ready
to apply a duty of ordinary care and submission of
jury issues under a simple negligence jury submis-
sion. It is applicable in all premises liability suits
without consideration of whether the claim was
one of negligent activity or premise condition. The
courts in US indicate that they are taking a major
step toward abolishing the common law categories.
Common law categories simply do not reflect the
issues presented in present premise liability suits,
some of which would have been unimaginable when
such categories were judicially created. Abolishing
the common law categories and adopting a duty of
reasonable care as applied under the circumstances
will bring simplicity, more predictability and hope-
fully greater fairness to the citizens of US.
5
GENERALISED STANDARD OF
REASONABLE CARE
In Canada, it is doubtful that this highly struc-
tured responsibility ever worked very well. Any
attempt to place entrants into a limited number of
fixed categories could produce difficulties, anoma-
lies and uncertainties (McDonald, D.C. & Leigh,
L.H., 1965).
However, during the twentieth century, the
classical doctrine of occupiers' liability fell away,
leaving an archaic set of rules which was not
4
ABOLISHMENT OF COMMON LAW
CATEGORIES
In US, the courts moved away from the rigid com-
mon law standard of care based on categories of
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