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compatible with modern notions of civil respon-
sibility. By virtue of the case of
Donoghue v. Ste-
venson
([1932] A.C. 562, 101 L.J.P.C. 119, [1932]
All E.R. Rep. I.), the tort of negligence extended
its reach to virtually all activities and conduct,
and imposed a generalized standard of reasonable
care for the safety of others. After 1932, it became
difficult to defend the different standards of care
owed to the contractual entrant as compared to
the licensee. The degree of proximity, which was
the touchstone of the obligation of reasonable care
under
Donoghue v. Stevenson
, did not seem to dif-
fer greatly and this clearly created an added pres-
sure on the established doctrine. The substantive
principles of the tort began to be re-constructed by
the courts and re-adjusted to provide much greater
protection for injured persons. There was also an
increasing reluctance to exonerate defendants on
the grounds that the plaintiff had some knowledge
of the danger which caused the injury. On a more
practical level, societal changes during the twenti-
eth century increased the difficulty in applying the
classical doctrine. The increasing variety of land
use created a plethora of problems, both in the
definition of 'occupier', and in the classification
of visitors into the four categories.
This appeared to be also the approach which
is sometimes taken by the Malaysian judiciary. In
Chang Fah Lin v United Engineers (M) Sdn Bhd
[1978] 2 MLJ 259, the court did not use concealed
danger as the standard of care but instead applied
the concept of injury which could reasonably be
foreseen. In this case, the plaintiff was in the proc-
ess of fixing zinc sheets on the roof at a height of
twenty five feet from the ground when he slipped
and fell down sustaining severe injuries. No safety
belts were used because none was provided. The
court decided that as between the first defendant
(United Engineers Bhd) and the plaintiff, there
was an invitor/invitee relationship and therefore
the first defendant were bound to take such rea-
sonable care as would avoid the risk of injury to
such person as they could reasonably foresee might
be injured by failure to exercise such care. This is
different from the earlier decided cases and sub-
sequent cases because the standard of care for
invitee is usually the duty to prevent the unusual
danger from affecting the invitees. The court did
not explain on what it means by injury which could
be reasonably be foreseen. After stating the duty of
the defendant, the court proceeded to explain that
the defendant is the occupier and has overall occu-
pation and control over the premise. This case is
different in the sense that the occupier owes a duty
to prevent injury which could reasonably be fore-
seen only. Hence, the test is objective one which is
whether an ordinary man would foresee the injury
if he is the occupier.
6
STATUTORY DECLARATION OF
STANDARD OF CARE
The UK Occupiers' Liability Act in section 3(1),
replaces the common law classification system and
its standard of care with a generalized standard of
common care without distinguishing specifically
between permitted entrants and others. The occu-
pier owes to persons on the premises and to the
owners of property on the premises, such care as
in all the circumstances of the case is reasonable
to see that the person or property is reasonably
safe. This duty of reasonable care is common to all
occupiers' liability legislation in other jurisdictions.
The generalized obligation of care under section
3(1) of the Act is essentially the same standard of
care dictated by the negligence doctrine. The effect
of imposing this standard is to raise the standard
of care owed to entrants who would be treated at
common law as licensees and trespassers and to
lower the standard of care owed at common law to
contractual entrants.
Where a person willingly assumes the risks of
entering premises, section 4(1) of the Occupiers'
Liability Act in Ontario substitutes a lesser duty
on the occupier to not create a danger with delib-
erate intent to do harm and to not act with reck-
less disregard. Section 4(3) of the Act is a deeming
provision that provides that a person who enters
certain types of premises that are outlined in sec-
tion 4(4) is deemed to have willingly assumed the
associated risks. Those premises outlined in sec-
tion 4(4) include such property as rural premises
and recreational trails. The trial judge held that
the lesser duty of care did not apply because the
premises did not come within one of the catego-
ries listed in section 4(4). He noted that although
the premises contained recreational trails, the con-
crete wall was not on one of the trails. The Court
of Appeal allowed the appeal and dismissed the
action. The Court of Appeal sensibly stated that it
would make little sense to impose a lesser standard
when users remained on the trail, but to impose
a higher standard when they veered off of it. The
trail was being used by Ms. Schneider for recrea-
tion and it met the definition of recreational trail,
thus bringing it within the provisions of section 4.
7
THE WAY FORWARD AND
CONCLUSION
As discussed earlier, although statutory provi-
sions of duty of care is not available in Malay-
sia, sometimes, the judiciary tends to apply the
standard duty of care established in the case of
Donoughue v. Stevenson
, though at times, techni-
cal issues of classification of entrants and different
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