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A Summary of the Law of Occupiers’ Liability in Singapore
This article is intended to provide a quick but firm grasp of the more important legal principles that a solicitor should be aware of before advising management corporations regarding their duty as occupiers, such as the definition of an ‘occupier’, how the duty to an occupier differs according to whether one is a trespasser, invitee or licencee, and how joint liability may arise. It also shows how the law distinguishes occupiers’ liability from liability that arises out of the ordinary principles of negligence. As any advice is fact-centric, reliance cannot and should not be placed on this article as the sole basis of any legal advice. This article is intended only as a useful aid-memoir of the general applicable principles.
Introduction
Most if not all lawyers are familiar with ss 3 and 4 of the Application of English Law Act 1993. Essentially, s 4 states that only certain English enactments are applicable in Singapore after 12 November 1993 while s 3 states that the body of common law of England that existed before 12 November 1993 and which was part of the law of Singapore continues to be part of the law of Singapore after 12 November 1993, but with the necessary modifications to take into account the circumstances of Singapore.
These provisions have an impact on the law of occupiers’ liability in Singapore. By s 4 of the Application of English Law Act, the English Occupiers’ Liability Act 1957, which was enacted to codify the common law on occupiers’ liability in England, is not applicable in Singapore. As a result and by operation of s 3 of the Application of the English Law Act, the law of occupiers’ liability in Singapore derives its strength from the common law of England as it stood before the English enactment came into force in 1957.
Thus in Industrial Commercial Bank v Tan Swa Eng1 His Honour Lai Kew Chai J rightly held that ’the law of occupiers’ liability in Singapore is derived from English common law’ and that ’legislation in England has been passed which has made significant changes to the common law.’ He observed that ’In Singapore, there is no such parallel legislation, and the English statutes on occupiers’ liability are not applicable.’2 That statement of the law was fully adopted by His Honour LP Thean JA in the subsequent Court of Appeal case of Awang bin Dollah v Shun Shing Construction & Engineering3 where the passages quoted were cited.
With the underlying basis of the law firmly established, the question that should come to mind is this: what then are the main principles applicable in Singapore with regard to the liability of occupiers? One starting point in answering this question is to identify whether the injured person is a ’trespasser’, an ’invitee’ or a ’licensee’, because the duty owed by an occupier differs according to each of these traditionally defined categories.
Duty to Trespassers
At common law, the trespasser is defined for the purposes of occupiers’ liability as ’one who goes on the land without invitation of any sort and whose presence is either unknown to the proprietor, or, if known is practically objected to’.4
The duty of care owed to trespassers by occupiers can be simply stated as this: there is no duty to trespassers save only that of not inflicting malicious injury. This of course is couched in negative language. The duty of care owed to trespassers by occupiers is more properly stated by Choor Singh J in the Court of Appeal decision of Khoo Ting Hong v Sim Guan Soon5 as follows:
The owner of the property is under a duty not to injure the trespasser wilfully; ‘not to do’ a wilful act in reckless disregard of ordinary humanity towards him; but otherwise a man trespasses at his own risk …6
The trespasser comes on to the premises at his own risk. An occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care. There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser …7
A man can only act recklessly with regard to the safety of another if he knows of, or has reason to believe in, the presence of the other …8
Choor Singh J went on to observe that the limits of the duty to trespassers were reaffirmed by two very important English cases, which are (still) good law in Singapore:9
In Commissioner of Railways v Quinlan [1964] 1 All ER 897, Viscount Radcliffe reviewed all the authorities and laid down the law in the following terms [at p 912]:
… If on the evidence a plaintiff is a trespasser, a person present without right or licence, the occupier’s duty to him is determined by the general formula as laid down in Addie’s case [1929] All ER Rep at p 4. That formula may embrace an extensive and, it may be, an expanding interpretation of what is wanton or reckless conduct towards a trespasser in any given situation, and, in the case of children, it will not preclude full weight being given to any reckless lack of care involved in allowing things naturally dangerous to them to be accessible in their vicinity. What the law does not admit, however, is that a trespasser, while incapable of being described otherwise than as a trespasser should be elevated to the status of an ordinary member of the public to whom, if rightfully present, the occupier owes duties of foresight and reasonable care …
And in Commissioner of Railways v McDermott [1966] 2 All ER 162 Lord Gardiner LC who delivered the judgment of the Board had this to say, at p 170:
No duty is owing to a trespasser until it becomes known either that he is present or that the presence of a trespasser is extremely likely. They [sic] duty, when it arises, is a duty of a very limited character – not to injure him wilfully, and not to behave with reckless disregard for his safety.
In the lower court, FA Chua J accepted the observation and pronouncement of Viscount Radcliff in the Privy Council decision of Commissioner of Railways v Quinlan in relation to the duty to trespassers:
Their lordships have studied with care and respect the judgments of the members of the Court of Appeal in England in Videan v British Transport Commission, two of which adopt much the same line of reasoning as that upon which their Lordships have commented in the recent High Court cases in Australia: but they remain quite unpersuaded that the measure of an occupier’s duty to a trespasser can be determined in all cases by what is called the foreseeability test or that it is correct to describe the nature of the duty by saying that if the circumstances are such that the occupier ‘ought to foresee’ even the presence of a trespasser, the duty of care extends to the trespasser also ... the situation would be less liable to be misunderstood if it were explained that the only trespasser to whom the occupier is accountable for his actions, even if dangerous, is one of whose presence he actually knows or one whose presence at that time of injury can fairly be described as extremely likely or very probable.10
Lord Gardiner LC’s speech in Commissioner of Railways v McDermott referred and accepted by Choor Singh J, captures the knowledge requirement of the occupier. Having knowledge of the presence of trespassers is not enough. His presence must be extremely likely or very probable as observed by Choor Singh J when he went on to say that:
The duty to a trespasser arises only when his presence is either known or is considered extremely likely. When that is proved, then and only then, does the question of liability arise. In so far as knowledge is concerned, the knowledge required to set up any duty at all in the occupier is his personal knowledge of the other’s presence. A person’s knowledge is a question of fact. Such a fact is a very different thing from the objective question whether there was a reasonable likelihood of someone being present at the relevant time and place and whether a person ought to have foreseen that likelihood.
Therefore, to impose liability on an occupier towards a trespasser, the following two elements need to be proved:
1 that the occupier knew of the presence of the trespasser at the time and place of injury or could be reposed with knowledge that the presence of the trespasser was extremely likely or very probable; and
2 that the injury was caused either by a willful act by the occupier to injure the trespasser or by the occupier’s reckless disregard for the trespasser’s safety.
In Lim Seow Wah v HDB, Chan Sek Keong J (as he then was) held that an occupier will not be liable to a trespasser if the trespasser trespasses ’knowingly and without any reasonable excuse’. Thus, if a trespasser does not know that he is trespassing and has a reasonable excuse for trespassing, an occupier may be liable, depending on the facts.11 In Lim (supra), liability was imposed on the occupier on the ground that the trespasser had a reasonable excuse for his unintentional act of trespass.
Duty to Invitees
At common law ’a person is an invitee if he is on private or public premises for a business purpose of material benefit to the occupier.’12 This is normally referred to as the ’common interest’ since in the main the invitee also has an economic interest in being on the premises.
Industrial Commercial Bank v Tan Swa Eng firmly establishes that the duty owed to the invitee ’would be to prevent damage or injury from any unusual dangers on the premises he knows or ought to know and which the invitee does not know about’.13 Thus, to impose liability on an occupier towards the invitee, the following four elements must be proved:
1 that the occupier actually knew or ought to have known of the danger that caused the injury;
2 that the danger was unusual to the person harmed, having regard to the nature of the place and the knowledge of the invitee;
3 the danger was unknown to the invitee and the significance was not appreciated by him; and
4 the occupier had failed to use reasonable care to prevent damage from occurring.
A relevant point that may seem all too obvious but which may be easily overlooked (and indeed was in the case that follows) is that the reference point to examine the state of knowledge in deciding liability is the knowledge that existed at the time of the event. In Industrial Commercial Bank v Tan Swa Eng Lai J, delivering the judgment of the Court of Appeal, disagreed with the court below and stated essentially that the collapse of Hotel New World in 1986 must be looked at with a 1986 pair of spectacles. Having found that until 1986 there was no instance of a collapse of a building such as the hotel which stood for more than 10 years, he held that the bank could not be imputed with knowledge of the various unusual dangers that were raised in that case, such as tremors, vibrations and cracks in the building.14
Finally, mention must be made that while it is clear that ‘unusual dangers’ are to be assessed at the time of the event, ’It is [equally] clear that what constitutes an unusual danger is a matter of fact and degree in all circumstances… [it] is one not usually found in carrying out the task which the invitee has in hand.’15
Duty to Licensees
At common law, licensees are those who have been given permission, express or otherwise, to enter the premises. They are neither trespassers nor invitees.
The duty of care owed by an occupier to a licensee was stated in Robert Addie & Sons (Collieries) Ltd v Dumbreck , quoted by Joel Lee in his article Occupier’s Liability and Independent Contractors:16
The occupier has no duty to ensure that the premises are safe, but he is bound not to create a trap or to allow a concealed danger to exist upon the said premises, which is not apparent to the visitor, but which is known – or ought to be known – to the occupier.
Therefore, to impose liability on an occupier towards a licensee, the following three elements need to be proved:
1 that the danger that caused the injury was either a trap, something which ’involves the appearance of safety under circumstances cloaking a reality of danger’17 or was concealed;
2 that the danger was neither known nor obvious to the licensee; and
3 that the occupier actually knew or ought to have known of the danger.
Each of the above categories defines a specific type of relationship between the visitor and the occupier. It is therefore clear that one of the main principles applicable in Singapore of the law of occupiers’ liability is that, although the occupier does owe a duty of care to all visitors, the level of care owed is dependent on the specific relationship the visitor has with the occupier. This liability is different from one based on the ordinary principles of negligence, where liability does not depend on the nature of visitor or whether one is an occupier.
Law of Occupiers’ Liability and Ordinary Principles of Negligence
By looking at the distinction made between occupiers’ liability and liability incurred due to ordinary principles of negligence, one can get a firmer understanding about the principles around which the law of occupiers’ liability is based. The importance of this question in understanding the law of occupiers’ liability can be seen in the way this distinction is used as a point of reference in several articles regarding the law of occupiers’ liability. Michael Hwang, SC in his article Basic Definitions in the Law of Occupiers’ Liability,18 argues that the law of occupiers’ liability ought to be expressed in the language of negligence and indeed, that the law of occupiers’ liability should be ’assimilated into the general law of negligence’ as is the case in Scotland.19 The distinction also formed the analytical basis upon which Joel Lee’s argument was founded in his article Occupiers’ Liability and Independent Contractors20 where he argues that the two liabilities should not be confused.
As Michael Hwang, SC points out, at common law, the law of occupiers’ liability is phrased in the language of negligence, ie in terms of the obligation and ability to prevent the injury. In other words, the law of occupiers’ liability is ’concerned with imposing a duty of care on the person responsible for the safety of visitors on land’.21 This can indeed be seen in the language of the liability owed by the occupier to the different types of visitors to his premises discussed earlier in this article.
However, the liability of a person as occupier is a limited one, restricted to defective premises, whereas liability of a person along ordinary principles of negligence is a more general one. This can be seen in Mohd Bin Sapri v Soil-Build (Pte) Ltd22 where Yong Pung How CJ dismissed counsel’s assertion that the defendant ’may be held liable to the plaintiff on “ordinary principles of negligence”, simply because Soil-Build (the defendant) was the occupier of the premises’.23 Rather the duty of care owed by the occupier to the invitee is limited only to the physical conditions of the premises. This can be seen in Mohd Sainudin bin Ahmad v Consolidated Hotels Ltd24 where LP Thean J observed that ’the duty owed by the first defendant (the site owner) to the plaintiff who was upon the premises as an invitee … is to use reasonable care to prevent damage to him from unusual danger which the first defendant knew or ought to know. But the plaintiff was not injured by reason of any defective or unsafe physical condition of the premises. The plaintiff was injured by current operations at the premises, and the current operations were not carried out by the first defendant but by the main contractor or others on its behalf.’25
Therefore, one of the principles upon which the liability of occupiers is based is that the duty of care owed by the occupier is solely based on the physical premises. Issues pertaining to the more general laws of negligence, such as unsafe working conditions, the relationship between principal and independent contractor or the relationship between employer and employee are not pertinent to, and should not be confused with, the law of occupiers’ liability in Singapore. This distinction is important in considering the next major principle of the law of occupiers’ liability in Singapore, namely, regarding the definition of an occupier and therefore who owes liability as an occupier.
Definition of an Occupier
At common law, an occupier was defined by Lord Denning as:
Wherever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an occupier.26
This definition of when a person is liable as an occupier has been firmly established at common law and accepted in Singapore by Lai Siu Chiu J in Wong Jin Fah v L & M Prestressing.27 In China Insurance Co Ltd v Woh Hup (Pte) Ltd, FA Chua J held that the occupier ’denoted a person who had sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on the premises’28 quoting the same passage as above.
Lord Denning went on to further elaborate on the definition of an occupier by stating that:
In order to be an ‘occupier’ it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice that he has some degree of control. He may share the control with others. Two or more may be ‘occupiers’.29
The main issue, therefore, in looking at whether a person is liable as occupier is in establishing who has a sufficient degree of control in situations where there is more than one occupier. In practical terms, it can be divided into two scenarios:
1 where an owner has hired an independent contractor to work on the premises where an injury occurred; and
2 where an owner (or a main contractor) has employed a sub- contractor.
Where there is an independent contractor
In the first scenario, all liability as occupier is passed towards the independent contractor, on the basis that the owner has relinquished sufficient degree of control over the entire premises to make the independent contractor liable as occupier. This can be seen in the case of Mohd Sainudin bin Ahmad v Consolidated Hotels Ltd, where Chan Sek Keong J ruled on behalf of the Court of Appeal that the owners of the premises upon which the injury had taken place ’were entitled to and did discharge their duty of care to third parties who come on to the site by employing … (the independent contractor in question)’.30
However, this is only an instance of the principle enunciated in Haseldine v Daw (1941) and adopted by Lord Denning in Wheat v E Lacon, that is to say, an owner could discharge his duty by entrusting the work to an independent contractor.31 Equally, an owner could discharge his duty by exercising proper supervision over the contractor.32 What is also critical is that in addition to the duty imposed on the owner, the law imposes a separate and distinct duty on the independent contractor on the basis that the independent contractor is himself sufficiently in control of the place. Thus, in the last instance, the independent contractor is an ’occupier’ and his liability would be but a particular instance of his more general duty of care, and could therefore be found liable in addition to the liability that arises as a result of the application of the principle stated in Haseldine v Daw.33
Where there is a sub-contractor
In the second scenario, where a sub-contractor is employed, the owner/main contractor still has liability as occupier of the entire premises in question, even though the sub-contractor might be liable as occupier of part of the premises. This principal was affirmed in Amus bin Pangkong v Jurong Shipyard Limited & Anor34 where Lai Siu Chiu J ruled that both the subcontractor who was the occupier of the part of premises where the injury occurred, and the owner and occupier of the entire premise could in law be made liable as occupiers based on two premises:
1 that two or more people may share control over the entire, or part of the, premises; and
2 that to be liable as an occupier, the control of the premises need not be exclusive nor complete.
Conclusion
To summarise, the main principles of the law of occupiers’ liability are as follows. The liability of a person as occupier depends solely on whether he is deemed to have sufficient control over the premise, or part of the premises where the injury took place. The extent of the care of duty owed to the visitor is dependent upon the type of relationship between the visitor and the occupier. The relationship has traditionally between divided into three classes: trespassers, invitees and licensees, and should continue to do so unless perhaps statute intervenes to codify the law of occupiers’ liability. Two or more persons can in law be occupiers simultaneously. The duty of care owed by the occupier to the visitor is strictly with regards to the physical conditions of the premises and should not be confused with the duty of care owed under the ordinary principles of negligence.
Finally, no article is complete without a review and comment of the most recent cases. In this regard a list consolidating the cases on occupiers’ liability that were heard and decided in the last six years is attached as an endnote. It was felt that these cases could be bereft of comments because they do not enunciate new legal principles. These cases were decided on the facts but they do, however, provide a good read of the various factual scenarios that were presented to the courts in the last few years. It goes without saying that they serve as useful precedents or guides in the provision of legal advice over a particular fact situation.35
Deepak Raja
Daniel Yan Wen Tan
Colin Ng & Partners
E-mail: [email protected]
Notes
1 [1995] 2 SLR 716.
2 At 719C.
3 [1997] 3 SLR 677.
4 Addie v Dumbreck [1929] AC 358, quoted in Michael Hwang, ’Basic Definitions in the Law of Occupiers’ Liability’, Malaya Law Review (Vol 10 no 1) p 75
5 [1969-1971] SLR 55 at 56.
6 Quoting Hamilton LJ who stated the rule of the English common law with great clarity in Latham v Richard Johnson & Nephew Ltd [1911-1913] All ER Rep 117.
7 Quoting Lord Hailsham in the House of Lords decision of Addie v Dumbreck [1929] AC 358.
8 Quoting Lord Goddard in the House of Lords decision of Edwards v Railway Executive [1952] AC. 737
9 [1969-1971] SLR 55 at 57 B–E.
10 [1965-1968] SLR 835 at 836 B–D.
11 [1990] SLR 1297 at 1302D.
12 Lai J in Industrial Commercial Bank v Tan Swa Eng [1995] 2 SLR 716 at 719C.
13 Ibid at 719F.
14 Ibid at 722 B–C.
15 Amus bun Pangkong v Jurong Shipyard Limited [2000] 4 SLR 116 , para 50.
16 Joel Lee, ‘Occupiers’ Liability and Independent Contractors’, Singapore Journal of Legal Studies (1994) p 428
17 Ibid p 427.
18 Michael Hwang, ’Basic Definitions in the Law of Occupiers’ Liability’, Malaya Law Review (Vol 10 no 1).
19 Ibid p 78.
20 Supra, n 16, p 427.
21 Supra, n 18 , p 69.
22 1996] 2 SLR 505.
23 Ibid at 517H.
24 [1989] 1 MLJ 297.
25 Ibid at p 299.
26 Wheat v E Lacon & Co [1966] AC 552 at p 578.
27 [2001] 4 SLR 529 para 21.
28 [1975-1977] SLR 583 at 586I.
29 Wheat v E Lacon & Co [1966] AC 552 at p 578.
30 [1990] SLR 157 at D.
31 Ibid 156I to 157D.
32 Supra n 30, 157A.
33 Supra n 30, 157B.
34 [2000] 4 SLR 116.
35 These recent cases are illustrative of the legal principles collated in this article:
a Woo Kim Kwee v Tan Sek Lim (trading as Lihon Builders) and Another [2006] SGDC 83.
b Management Corporation Strata Title Plan No 2297 v Seasons Park Ltd [2005] 2 SLR 613.
c Sim Cheng Soon v BT Engineering Pte Ltd and Another [2006] 1 SLR 697 (See also [2006] 3 SLR 551 and [2007] 1 SLR 148).
d Yao Zhong Ping v Teambuild Construction Pte Ltd [2003] SGDC 326.
e Hua Sheng Tao v Welltech Construction Pte Ltd and Another [2003] SGDC 130.
f Y v National Parks Board & Others [2003] SGMC 36.
g Wong Jin Fah (Suing by his next friend Ho Chia Hao) v L & M Prestressing Pte Ltd and Others (Liberty Citystate Insurance Pte Ltd (Formerly known as Citystate Insurance Pte Ltd) and Another, Third Parties) [2001] 4 SLR 529.
h Pan-United Shipyard Pte Ltd v India International Insurance Pte Ltd [2000] 4 SLR 303.
i Adam Bin Hamzah v Sentosa Development Corporation [2006] SGDC 51.