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[1983] CLJ Rep 222 [1983] 1 CLJ 231

LEE LAU & SONS REALTY SDN. BHD. v. TAN YAH & ORS. FEDERAL COURT, KUALA LUMPUR SALLEH ABAS, CJ (MALAYA); ABDUL HAMID, FJ; GEORGE SEAH, FJ CIVIL APPEAL NO. 70 OF 1982 30 MARCH 1983

TORT: Negligence - Duty of occupiers towards invitee - Whether merely to use reasonable care to prevent damage from unusual danger known to occupier.

The appellants operated a brick-making factory in Kepong, Selangor. They owned a forklift machine which was under the management of the late Tan Kam Sing ( " the deceased " ) at the material time. The deceased died as a result of injuries received when the forklift which had been mechanically packed up at the request of the foreman, collapsed on him. A claim for damages was brought by his dependants (the respondents). The trial Judge held the appellants liable in negligence. He found the deceased to be an invitee, who was owed a duty by the appellants not to be placed in a position of danger. The appellants appealed.
Held:
[1] There was ample evidence to support the finding of the learned Judge that the deceased was an " invitee ", not a " licensee ". [Pearson v. Lambeth BO. [1950] 2 KB 353 at p. 366; Jacobs v. LCC. [1950] AC 361; Fairman v. Perpetual Investment Building Society [1923] AC 74].
[2] The learned Judge had erred in stating the law wider than that laid down in Indermaur v. Dames [1866] LR. ICP. 274, which is that the occupier as an invitor must on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know. The Occupiers' Liability Act 1957 does not apply in Malaysia. [Wheat v. E. Lacon Co. Ltd. [1966] 1 AER 582 at p. 593; Lau Tin Sye v. Yusuf bin Muhammad [1973]1LNS72.
[3] The act of jacking up the forklift mechanically did not constitute " unusual " danger which might have reasonably been forseen by the deceased in the course of his employment. [London Graving Dock Co. Ltd. v. Horton [1951] AC 737].
[4] The onus of pleading and proving " unusual " danger which the appellants knew or ought to have known rested on the respondents and since they had failed to establish it, the appellants owned no duty of care to the deceased.

Case(s) referred to:
Pearson v. Lambeth BO. [1950] 2 KB 353
Jacobs v. LCC. [1950] AC 361
Fairman v. Perpetual Investment Building Society [1923] AC 74
Indermaur v. Dames [1866] LR ICP 274
Wheat v. E. Lacon Co. Ltd. [1966] 1 All ER 582
Lau Tin Sye v. Yusuf bin Muhammad[1973]1LNS72
Glasgow Corporation v. Muir [1943] AC 448
London Graving Dock Co. Ltd. v. Horton [1951] AC 737

Counsel:
For the appellants - R. Lazar; M/s. Shearn Delamore & Co.
For the respondents - B. G. Martin; M/s. B. G. Martin & Co.

JUDGMENT
George Seah FJ:
This is an appeal from a judgment of the High Court at Kuala Lumpur.
The facts may be briefly stated and they are as follows:

(a) The appellants, Lee Lau & Sons Realty Sdn. Bhd. operated and may still be operating a brick-making factory at Desa Jaya, Kepong, Selangor. They also owned a forklift machine which was under the management of the late Tan Kam Sing (hereinafter referred to as the deceased) at the material time.
(b) On 15 July 1978 at about 11 a.m. the deceased complained to Lee Swee Meng (DW1), a " Kepala " of the appellants, that the fan belt of the forklift had been broken. This was duly replaced by Chow Kwan Meng (DW2) a foreman of the appellants in charge of general repairs. At about 3 p.m. the same afternoon, the deceased lodged another complaint that the hydraulic pump of the forklift was leaking. At the request of the foreman, the deceased jacked up the forklift mechanically to a height between 5 to 6 feet and used 2 rubber tree stumps to support the heavy horizontal iron bar of the forklift. The foreman went under the raised forklift and saw that the oil ring of the hydraulic pump was leaking badly. While the foreman was away to get a spanner, the deceased went under to have a look at the hydraulic pump, the 2 rubber tree stumps gave way, the forklift collapsed and the heavy horizontal iron bar fell onto the deceased causing him serious injuries from which he later died without recovering consciousness.
(c) A claim for damages was instituted in the High Court by the (i) 1st and 2nd respondents who are the natural parents of the deceased; (ii) 3rd respondent, who is the lawful widow of the deceased and (iii) 4th respondent, who is the infant son of the deceased. All the four respondents claim to be dependants of the deceased.
(d) The learned Judge Ajaib Singh J gave judgment in favour of the respondents and awarded a total sum of RM69,864 as general damages and RM1,022 as special damages.

According to the statement of claim the case of the respondents was grounded on the fact that the deceased was an employee of the appellants and that the accident on 15 July 1978 was caused solely by the negligence of the appellants or their servant or agent. Alternatively, the respondents also averred that the appellants were in breach of their statutory duty under the Factories and Machinery Act 1967and the regulations made thereunder.
The appellants in their defence denied that the deceased was their employee and averred that the deceased was at all material times an independent contractor. They also denied that they or their servant or agent had been negligent or in breach of any statutory duty. They lastly averred that the accident was caused or contributed to by the negligence of the deceased himself.
After hearing the evidence adduced the learned Judge ruled that there was insufficient evidence to say that the deceased was an employee of the appellants. He also held that the appellants were not in breach of any of the provisions in the Factories and Machinery Act 1967and the regulations made thereunder. The effect of these rulings is that the respondents had not succeeded in proving their case as pleaded and there was no cross-appeal by the respondents against these findings of the Court below. In our opinion there was ample evidence to support these findings.
However, the learned Judge found as a fact that the deceased was an independent contractor and might be regarded as an invitee. In Pearson v. Lambeth BO. [1950] 2 KB 353 at p. 366 Asquith LJ said:
... It is more exact to say that an invitee is a person who comes on the occupier's premises with his consent on business in which the occupier and he have a common interest.
This requirement of community of interest is to be found in many of the cases and was approved by the House of Lords in Jacobs v.LCC. [1950] AC 361 in which the question was whether a customer at a shop, occupied by a tenant of the defendants, who suffered personal injuries from the defective state of the forecourt, occupied by the defendants, was their licensee or their invitee. Lord Simonds, whose judgment was concurred by the other members of the House, held that the plaintiff was a licensee because three of the Law Lords in the rather similar case of Fairman v. Perpetual Investment Building Society [1923] AC 74 had expressed the view that such was the status of a person in those circumstances. There was no cross-appeal by the respondents against this finding of the learned Judge, and in our judgment, there was ample evidence to support it.
Having found that the deceased was an invitee at the time of the accident, the learned Judge proceeded to state the law governing the case as follows:
But the deceased certainly was an invitee on the premises belonging to the defendants and as such they owed a duty to the deceased that he would not be placed in a position of danger or create a dangerous situation whereby injury would be caused to him. On the evidence before me I held that the defendants' servant, the foreman DW2 was negligent in the manner by which he handled the situation...
At the hearing of this appeal, learned Counsel for the appellants had submitted that the learned Judge erred in law in holding that the duty of the appellants at common law, as occupiers, towards the deceased, as an invitee, was that he should not be placed in a position of danger or create a dangerous situation whereby injury would be caused to him. It was argued that the learned Judge had failed to apply the correct test, viz. in law the duty of an occupier towards his invitee is merely to use reasonable care to prevent damage from unusual danger or risk which the occupier knows or ought to know.
The leading case on liability to an invitee at common law was Indermaur v. Dames [1866] LR. ICP. 274 where a workman employed by a gasfitter went to a sugar-refinery to test some gas-burners and fell into an unfenced shaft. The occupiers of the factory were held liable for the accident and at p. 288 Willes J stated the principle of the invitor's liability in tort as follows:
And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact.
This statement of the law has long been regarded as an authoritative exposition of the duty owed by an invitor to an invitee and had been consistently accepted and applied by the House of Lords in numerous cases until the Occupiers' Liability Act 1957 (which came into operation in England and Wales on 1 January 1958) which abolished the distinction between invitees and licencees and classed them all as " visitors ". The Act, which does not apply in Malaysia, put on the occupier the same duty to all of them viz. the common duty of care [per Lord Denning in Wheat v. E. Lacon Co. Ltd. [1966] 1 AER 582 at p. 593]. In Malaysia, the rule in Indermaur v. Dames was applied by the Federal Court in the case of Lau Tin Sye v. Yusuf bin Muhammad [1973]1LNS72. Special rules apply to the position of those who come as invitees upon premises. And the cause of action based on invitation is different, because it depends primarily, not on what actually happened (except in the sense that what actually happened would be essential to complete the cause of action by showing damage) but on whether the invitor (it is convenient to use the word) knew or ought to have known that the invitee was being exposed to unusual danger [per Lord Wright in Glasgow Corporation v. Muir [1943] AC 448 at p. 460 and 463].
Applying this to that part of the judgment of the learned Judge where he purported to expound the law governing the relationship of an invitor and invitee, it is plain that the learned Judge erred in stating the law wider than that laid down in Indermaur v.Dames and purported to place the duty on the appellants on a much wider basis than is there postulated. In other words, the learned Judge would impose on the appellants a degree of care higher than the law exacts. In our opinion, a dangerous situation per se does not constitute " unusual " danger or risk.
The invitor's duty is confined to protection against " unusual " dangers and inLondon Graving Dock Co. Ltd. v. Horton [1951] AC 737 the House of Lords ruled that an " unusual " risk is one which is not usually found in carrying out the task which the invitee has in hand. In the Court below, the learned Judge did not deal with the issue of " unusual " danger in his judgment as this had not been pleaded by the respondents in their statement of claim. However, on the facts found by the learned Judge, we do not think the act of raising the forklift mechanically and using 2 rubber tree stumps to support the heavy horizontal iron bar, amounted to " unusual " risk. If this were so the respondents would have pleaded it in their reply. In our opinion, these facts might constitute " incidental or usual " danger which could reasonably be foreseen, by the deceased in the course of his employment.
In Horton case Lord Normand said at p. 751:
The occupier has no duty to the invitee unless there is unusual danger which he knew or ought to have known...
And at p. 758 Lord Oaksey in the same case observed:
An occupier owes no duty to an invitee in respect of 'usual' dangers since the invitee is only entitled to expect that the invitor will take care to prevent damage from 'unusual' danger...
The onus of pleading and proving " unusual " danger which the appellants knew or ought to have known, rests on the respondents and since they had failed to establish it, the appellants owed no duty of care to the deceased. Much as we sympathise with the dependants of the deceased, we have no alternative but to set aside the judgment of the Court below. The appeal is therefore allowed with costs here and below. The RM500 deposit to be refunded to the appellants.
Also found at
[1983] 1 CLJ 231

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[1973] 1 LNS 72

LAU TIN SYE v. YUSUF BIN MUHAMMAD FEDERAL COURT, KUALA LUMPUR AZMI, LP J; SUFFIAN, FJ; ALI, FJ CIVIL APPEAL NO. 66 OF 1972 10 AUGUST 1973

TORT - Occupier's duty to invitee - person injured by blade of tractor on Land - whether occupier of Land or owner of tractor liable - Negligence - Duty of care.

Case(s) referred to:
Indermaur v. Dames [1866] 1 LR CP 274, 287

Counsel:
For the appellant - Datuk HL Wriggles Worth; M/s. Wrigglesworth & Co.
For the respondent - Datuk Wan Mustapha; M/s. Wan Mustapha & Co.

JUDGMENT Ali FJ (reading the judgment of the Court):
This is an appeal from the judgment of the High Court at Kota Bharu, Kelantan.
The respondent, an adult male aged over 20 years, was injured when his right foot was cut by a tractor's blade. He sued the appellant, the owner of the tractor, and obtained judgment. Upon a finding of contributory negligence against him the award of damage was reduced to half. The appellant has appealed against the whole decision of the trial Court but as nothing was said on the quantum either in the memorandum of appeal or in the arguments before us, this appeal will be treated as an appeal against the finding on liability.
The respondent's cause of action on the pleadings was for a breach of an employer's duty to provide a safe system of work. This is clear from paras. 1 and 3 of the statement of claim. Although para. 5 alleges negligence the particulars of negligence set out are not those which usually support a case of negligence. Any way the cause of action, so far as it was based on an employer's liability to provide a safe system of work, must have failed because on the evidence before him the learned trial Judge said this:

On the evidence before me I found that the plaintiff was not an employee of the defendant.

The evidence at the trial disclosed the following facts: On 11 June 1969 the appellant's tractor was hired out to plough land belonging to one Mustapha bin Deraman. The tractor was driven by Mohamed bin Said who was assisted by Abdullah bin Hassan or Pak Su Lah as he was described by the respondent. The respondent and a person named Zahari bin Ismail were also there having been allowed to travel on the tractor. While the tractor was at work, Abdullah signalled to the driver to stop. The tractor stopped but its engine was still running. This means that the tractor blade kept on rotating. According to the evidence Abdullah had stopped the tractor in order to adjust the blade cover which, he said, was too high. The respondent, thinking that Abdullah was having some difficulty in lifting the blade cover, went to assist him. He admitted that no one had asked him to do so. He described the accident in these words:

As I was trying to lift the blade cover my right foot was cut by the hidden blade.

He maintained that he did not know that the blade was rotating. In answer to a question in cross-examination he said:

I do not know that I had put my right foot further inside. I was wearing canvas shoes.

Whether or not he slipped is not clear from the evidence. That was all that he could say of the accident. Abdullah who gave evidence for the appellant had said that he did not notice the respondent's presence until after the accident. He said:

The tractor slowed down and I walked towards its rear. When tractor stopped I had reached its rear and I immediately lifted the cover of the cultivator to loosen the chain so as to lower the cover. As I was lifting the cover with my right hand and loosening the chain with my left hand I noticed the plaintiff was falling down to the ground to my right with his feet under the cover. I did not see him come there.

As for the tractor driver he too did not notice the respondent until after the accident. On the evidence, such as it was, the learned trial Judge recorded his finding in these words:

I find the driver negligent. I also find contributory negligence on part of plaintiff. I apportion liability on 50-50 basis. I assess the quantum at $7,000 on basis of full liability. In the event I give judgment for plaintiff in the sum of $3,500 and costs.

He made this finding on 24 May 1972. But in a written judgment dated 16 July 1972 he said, inter alia:

As the rotating blade was some sort of unusual or even concealed danger of which DW2 knew or ought to have known I found that defendant was liable for injuries sustained by the plaintiff as an invitee or even as a licensee. I was satisfied that negligence under para. (f) of the particulars of negligence had been established.

Paragraph (f) is in these terms:

Causing or permitting the plaintiff to stand near the tractor in order to pull the tractor chain, when the tractor was in motion or operation when the defendant or his servant or agent knew or ought to have known it was unsafe and dangerous for defendant so to do.

Since neither Abdullah nor the tractor driver, Mohamed Said, had seen the respondent before the accident we fail to see how the para can be said to have been established. At any rate the question is what is the real basis of the trial Court's decision? Was it negligence or was it a breach of an occupier's duty to an invitee or a licensee? Without trying to answer this question, we shall proceed to consider whether on the facts either head of tortious liability has been established.
As for negligence there was not an iota of evidence to support a finding that the tractor driver was guilty of a breach of duty to exercise care. There is no doubt that the respondent had gone to assist Abdullah with the best of intentions. That, however, is beside the point. To succeed in his claim for damages he must prove negligence and this he failed to do.
As for breach of an occupier's duty to an invitee, the law is well stated in the judgment of Willes J in Indermaur v. Dames [1866] LR 1 CP 274, 287. While we have no quarrel with the trial Judge's view that the respondent was an invitee we have some doubt whether at the material time the appellant was the occupier of the land. The owner of the land was Mustapha bin Deraman and the appellant was there as an independant contractor. However, this is not of great importance as the respondent was not injured as a result of any dangerous condition of the land. He was injured by the tractor's blade. The word "occupier" has been used in cases dealing with this principle of liability to describe a person who retains control over land, structures or premises. A person who lawfully enters upon such land, structures or premises is either an invitee or a licensee. In the instant case even assuming that the tractor was a structure it would be a misuse of the English language to say that on the facts the respondent had entered upon it. There may possibly be some other principle of liability which can govern the respondent's case but we are clearly of the view that the rule in Indermaur v. Dames, supra, cannot apply to this case.
We would allow this appeal with costs.
Appeal allowed.

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[1984] 1 CLJ Rep 152 [1984] 1 CLJ 239

HEADMISTRESS, METHODIST GIRLS SCHOOL & ORS. v. THE HEADMASTER, ANGLO-CHINESE PRIMARY SCHOOL, LAHAT ROAD, IPOH & ANOR. FEDERAL COURT, KUALA LUMPUR SALLEH ABAS, CJ (MALAYA); ABDUL HAMID OMAR, FJ; EUSOFFE ABDOOLCADER, FJ CIVIL APPEAL NO. 198 OF 1982 23 FEBRUARY 1984

TORT: Negligence - Whether there was contributory Negligence - Personal injury - Damages - Occupiers' liability.

Hew Wan Hoong, an infant aged 9 years old was knocked down by a school bus and sustained serious injuries in the school (Anglo-Chinese Primary School) compound whilst walking home. He sued the appellants, the bus owners and the driver for damages and they brought in the respondents, the Headmaster and the Government under occupiers liability for allowing the bus into the school compound. The trial Judge found the appellants wholly liable and dismissed the claim for contribution against the respondents with costs. They appealed against the trial Judge's decision on the claim for contribution.
Held:
[1] The school authorities as an owner and occupier of the premises are under a duty to keep the school premises safe.
[2] The school authorities must also share the blame with the appellants for allowing the bus into the narrow space in the school compound.
[3] The liability to be apportioned at 30% against the respondents, the school authorities and 70% against the appellants, the bus driver and the bus owners.

Counsel:
For the appellants Ng Chee Kong; M/s. Ng Chee Kong & Co.
For the respondents M. Mahalingam; Senior Federal Counsel

JUDGMENT
Salleh Abas CJ (Malaya):
On 5 June 1973 at about 12.30 p.m. the plaintiff, one Hew Wan Hoong, who was then an infant, aged 9 years old, whilst walking in the compound of his school (Anglo-Chinese Primary School) in order to go home was knocked down by a school bus. He sustained fairly serious injuries. He sued the appellants, (the bus owners, and the driver) for damages and they in turn brought in the respondents (Headmaster of the school and the Government) as the third party claiming for a contribution in the event of lability being found against them on the ground that they as school authorities were also partly liable for allowing the bus to enter the school compound.
The trial Judge found the appellants wholly liable and awarded the plaintiff a sum of RM20,000 as general damages and another sum of RM794 as special damages and dismissed the appellants' claim for contribution against the respondents with costs. The appellants are unhappy that the learned Judge dismissed their claim for contribution and hence this appeal.
The issue raised by their Counsel in this appeal in this: whether the respondents, being the school authorities, in the circumstances of this case, were guilty of contributory negligence in allowing the bus to enter the school compound.
According to the sketch plan (p. 65 of AR) the school buildings consist of four separate blocks, built in such a way as to leave a wide open square space (referred to herein as "the square") in the middle as the school playground. In the centre of the square stands a two-storey building used as the school assembly hall. The principal's office is in the first block right opposite of this hall. At the entrance of the school compound there is a gate, from which a drive-way past a house on the left leads to the square. Outside the gate there is a church. Parents' cars are not allowed to come into the square to pick up their children. The school authorities insisted that they wait for their children outside the school gate by the church. However, teachers' cars are allowed to come in and park in the square and school buses, of which there were only two, were also allowed to come into the square to drop and pick up children. Since this accident, buses are no longer allowed in and since then the school authorities have now posted a big notice board at the entrance prohibiting vehicles from entering. This is the first time a vehicle accident ever occurred in the school compound.
There is clear evidence that the bus would come and stop in front of the principal's office to drop children. After that it would reverse and turn in the direction of the church and then park in front of the principal's office to wait for the children. It was during the course of dropping the children that the bus in the instant case hit the plaintiff who was then peacefully walking on the side of the road in order to go home after school was dismissed. He could not avoid being hit because the road was not only narrow but its side was also bounded by an iron railing. As the bus was being negligently driven, there was hardly any space left for the plaintiff to manoeuvre between the railing and the bus. And, so he was hit and according to the evidence of a teacher who saw the accident, the plaintiff was sand-wiched between the bus and the railing. There being no dispute that the bus was at fault. The question is whether the school authorities were also at fault?
As an owner and occupier of the premises the respondents, the school authorities, are under a duty to keep the school premises safe. They knew that the road was extremely narrow and looking after children being their regular function, they must have appreciated that the children, once dismissed from classes, tend to disperse in all directions in disorderly fashion regardless of cautions their teachers may have given them. The school authorities were correct in preventing parents' cars from coming up to the school's square for safety reason but we do not understand why an exception was made in favour of the two school buses. Surely, buses being the bigger vehicles would pose a greater potential danger especially when the road is so narrow that there is hardly sufficient room for them to manoeuvre. We find ourselves extremely difficult to hold the school authorities free from any blame. In our view they must share the blame with the appellants. But the question is at what proportion? In view of the fact that their fault only consists of allowing the bus to come in, which is a privilege which the bus need not have to make use of, or a risk which it need not have to take, the blame on the school authorities should be a lesser degree than that of the appellants, the bus owners and the driver.
We think it is fair and reasonable that the total liability be apportioned at 30% against the respondents (the school authorities) and 70% against the appellants (the bus owners and the driver).
We would, therefore, accordingly allow the appeal with costs both here and the Court below and order that the appeal deposit should be refunded.
Also found at
[1984] 1 CLJ 239

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[1993] 3 CLJ 205

DATUK BANDAR DEWAN BANDARAYA KUALA LUMPUR v. ONG KOK PENG & ANOR. SUPREME COURT, KUALA LUMPUR DATUK MOHD JEMURI BIN SERJAN, CJ (BORNEO); TAN SRI DATO' HAJI MOHD AZMI BIN DATO' HAJI KAMARUDDIN; DATO' PEH SWEE CHIN, SCJJ SUPREME COURT APPEAL NO. 02-47-1992 5 APRIL 1993

TORT: Occupiers or owners liability for dangerous premises at common law - Standard of duty of care owed to licensee - Accident caused by falling down lift shaft - Lift to be maintained by independent contractor - Whether owner or independent contractor liable for damages.

The respondent had suffered severe injuries as a result of falling into a lift shaft in a block of flats owned by the appellant. The respondent had steped into the lift shaft on seeing the lift door partly open, there being no warning sign or barricade of any sort placed at the lift door to indicate that the lift was not in service.
The maintenance of the lifts was covered by a maintenance agreement between the appellant and the third party and the appellant sought an indemnity from the third party for damages awarded to the respondent. The trial Judge gave judgment against the appellant and dismissed the appellant's claim against the third party holding that the respondent was an invitee of the appellant and as such the appellant owed a duty of care to the respondent.
On appeal the determination of the Court was sought on the standard of care owed to a licensee.
Held:
[1] A licensee must take the premises as he finds them and the duty owed is not to expose him to hidden perils and to warn him of existing traps or concealed danger.
[2] The respondent fell through a lift door which was partly open and there was no warning of any kind about the danger as the lift was out of order and neither was there any barricade of any kind. This was created by such an extra hazardous act or omission involving special danger to users of that lift that the appellant could not escape liabilty for the injuries caused to the respondent.
[3] The maintenance of the lift was a statutory duty imposed on the appellant by the Factory and Machinery Act 1967 and the appellant could not escape liability by delegating it to the third party.
[4] The failure of the third party to erect any warning signs in respect of the defective lift was in breach of the contractual obligations to erect such warning signs under clause 4 of the maintenance agreement and as the third party had expressly agreed under clause 14 of the agreement to indemnify the appellant for damages for accidents at common law, the appellant was clearly entitled to indemnity from the third party in respect of the damages payable by the appellant to the respondent.
[5] The third party was also negligent in respect of the failure in erecting such warning signs, before the date of the accident, from the moment it came to know or ought to have known of the trap or hidden danger created by the defective lift.
[Judgment given in favour of respondent confirmed. Judgment and costs in favour of third party reversed and judgment with costs entered against third party in favour of appellants].
[Bahasa Malaysia Translation of Headnote]
TORT:Liabiliti penghuni-penghuni atau pemunyapemunya bagi premis merbahaya pada undangundang common - Standard kewajipan berjaga-jaga yang patut diberikan kepada pemegang lesen - Kemalangan berlaku kerana jatuh ke dalam lubang lif - Lif sepatutnya diselenggara oleh kontraktor bebas - Sama ada pemunya atau kontraktor bebas bertanggungjawab bagi kerugian.
Responden telah mengalami kecederaan yang teruk akibat terjatuh ke dalam lubang lif dalam satu blok rumah pangsa yang dimiliki oleh perayu. Responden telah menjejakkan kaki ke dalam lubang lif apabila melihat pintu lif terbuka sedikit dan tiada terdapat apa-apa amaran atau apa-apa bentuk penghalang diletakkan di pintu lif untuk menunjukkan bahawa lif tidak boleh digunakan.
Penyelengaraan lif termaktub dalam perjanjian penyelenggaraan yang dibuat di antara perayu dan pihak ketiga dan perayu memohon suatu tanggung rugi daripada pihak ketiga untuk gantirugi yang diawadkan kepada responden. Hakim perbicaraan memberikan penghakiman menentang perayu dan menolak tuntutan perayu terhadap pihak ketiga dengan memutuskan bahawa responden ialah seorang yang dijemput oleh perayu dan oleh yang demikian perayu mempunyai kewajipan berjaga-jaga kepada responden.
Atas rayuan, keputusan Mahkamah telah dipohon ke atas standard berjaga-jaga yang patut diberikan kepada seorang pemegang lesen.
Diputuskan:
[1] Seorang pemegang lesen mestilah mengambil premis sebagaimana yang didapati olehnya dan kewajipan yang patut diberikan ialah untuk tidak mendedahkannya kepada bahaya yang tersembunyi dan memberi amaran mengenai perangkap-perangkap yang ada atau bahaya tersembunyi.
[2] Responden telah jatuh melalui lubang lif yang terbuka sedikit dan tiada apa-apa jua amaran atau pun apa-apa bentuk halangan mengenai bahaya bahawa lif tidak boleh dipakai. Ini adalah disebabkan oleh tindakan kemudaratan atau peninggalan yang melibatkan bahaya khas kepada pengguna-pengguna lif tersebut di mana perayu tidak boleh lari daripada liabiliti bagi kecederaan yang disebabkan kepada responden.
[3] Penyelenggaraan lif adalah suatu kewajipan statutori yang dikenakan ke atas perayu oleh Akta Perkilangan dan Jentera 1967 dan perayu tidak boleh lari daripada liabiliti dengan memindahkannya kepada pihak ketiga.
[4] Kegagalan pihak ketiga untuk meletakkan apaapa tanda amaran berhubung dengan lif yang rosak tersebut adalah melanggar obligasi kontraktual untuk meletakkan tanda amaran yang sedemikian di bawah fasal 4 perjanjian penyelenggaraan dan memandangkan pihak ketiga dengan jelas bersetuju di bawah fasal 14 perjanjian tersebut untuk menanggung rugi perayu bagi gantirugi untuk kemalangan pada undang-undang common, perayu adalah jelas berhak kepada tanggung rugi daripada pihak ketiga berhubung dengan gantirugi yang kena dibayar oleh perayu kepada responden.
[5] Pihak ketiga juga cuai berhubung dengan kegagalan dalam meletakkan tanda amaran yang sedemikian, sebelum tarikh kemalangan tersebut, mulai dari saat ia diketahui atau mengetahui akan perangkap atau bahaya tersembunyi yang disebabkan oleh lif yang rosak.
[Penghakiman yang diberikan memihak kepada responden disahkan. Penghakiman dan kos yang memihak kepada pihak ketiga dibatalkan dan penghakiman dengan kos dicatatkan terhadap pihak ketiga memihak kepada perayu].

Case(s) referred to:
Fairman v. Perpetual Building Society [1923] AC 74 (refd)
Latham v. Johnson [1913] 1 KB 399 (refd)
Bower v. Peat [1876] 1 QBD 321 (refd)
Tarry v. Ashton [1876] 1 QBD 314 (refd)
Wilsons & Clyde Coal Co. v. English [1930] AC 57 (refd)
Salsbury v. Woodland [1970] 1 QB 324 (refd)
Honeywill Stein Ltd. v. Larkin Brothers Ltd. [1934] 1 KB 191 (refd)

Legislation referred to:
Factory and Machinery Act 1967, ss. 14 , 15 and 21
Occupier's Liability Act 1957 (UK)

Counsel:
For the appellant - Zainur bin Zakaria; M/s. ZainurZakaria & Co.
For the first respondent - R.K. Nathan; M/s. R.K.Nathan & Co.
For the second respondent - Dulip Singh; M/s. DulipSingh & Co.

JUDGMENT Peh Swee Chin SCJ:
The High Court has earlier at the first instance given judgment against the defendant by allowing the claim of plaintiff against the defendant and dismissing the defendant's claim against the third party. On appeal to us against the said judgment, we have allowed the appeal of the defendant to the extent that the judgment and costs given by the High Court in favour of the plaintiff be confirmed but that the judgment and costs given by the High Court in favour of the third party be reversed by entering judgment with costs in favour of the defendant against the third party instead. We indicated we would give our reasons in writing and we now hereby do so.
This case concerns one of those lift accidents, which have been on the increase with usually serious injuries to persons involved, brought about by a very notable change of lifestyle caused by shortage of town land, and hefty increase of urban population leading to mushrooming of construction of high-rise blocks of flats and similar structures incorporating lifts for the use of such flat-dwellers.
The facts could be summarized as follows.
At about 6.00 a.m. on 29 April 1980, the plaintiff, a taxi driver wanted to collect some keys from a friend living at Block B, Pekeliling Flats at Jalan Pekeliling, Kuala Lumpur, the latter apparently a tenant at the Pekeliling Flats which together with lifts inside them were owned by the Dewan Bandaraya, Kuala Lumpur of which the defendant was its Datuk Bandar. He wanted to use the lift and pressed the lift button. He tried all the three lifts there on the ground floor but no lift came after about 5 minutes. He then decided to walk up the staircase and found every lift door closed on 1st, 2nd, 3rd and 4th floors. On reaching the 5th floor, he saw a lift door open partly for about one foot wide. There were lights at the staircase but none at that lift about 12 feet away from the staircase and it was bright enough to see the lift door. He opened the lift door and stepped in and fell straight down the shaft, there was no lift inside the door.
There was no warning sign of any sort or any guard or barricade put up then at the lift door about the lift being out of order.
The plaintiff was badly injured and at the trial all parties agreed on the damages being fixed at RM30,000 at the outset of trial subject to proof of liability.
In respect of the particular lift, it was covered by an agreement for maintenance of lifts in Pekeliling Flats made between the defendant and the third party for a period during which the accident took place. Under the agreement, the 3rd party was paid RM180 per month for maintaining each of the lifts, and it emerged in evidence that in case of major repairs or replacement of parts costing more than RM300 (as involved in the instant case), the third party had to submit quotations to the Dewan Bandaraya and "local orders" had to be given by the defendant before such work could be commenced.
The lifts, as far as all the parties herein were concerned were under the control and management of and to be maintained by the defendant at the cost of the defendant.
Further the third party agreed to carry out its work "according to a reasonable working capability..." the wording is clumsy and not quite English, but the meaning is clear enough, that is, reasonable skill. The third party further agreed to arrange for insurance for, among other things, damages "under the Common Law..." for accidents arising out of the work in connection with the agreement and if the third party failed to do so, such damages etc. could be recovered from the third party itself by the defendant.
Further, clause 4 of the maintenance agreement, stated:- "whenever there is a lift breakdown and which the contractor is examining or maintaining or undertaking any other work, the contractor must display at every landing door of the lift, a notice or a cordon or a reasonable signboard indicating that the particular lift is out of order".
It was not disputed that an officer from Jabatan Kilang and Jentera, Kuala Lumpur had on 10 October 1979 written a warning letter to the defendant pointing out the defects of all the three lifts there, which were required to be rectified by replacements of defective parts with new parts, including all landing doors of all lifts, all within 6 months, failing which the defendant would not be allowed to operate the lifts anymore.
The "local orders" for the defects were received quite late by the third party, but at any rate before the date of accident on 29 April 1980, by then, also 6 months after the Inspector of Machinery's letter aforesaid.
The learned trial Judge gave judgment for the plaintiff against the defendant but dismissed the claim for indemnity against the third party, holding, as his Lordship apparently agreed with Counsel's submission, that the plaintiff was an invitee of the defendant and that the defendant owed a duty of care to him and briefly put, in regard to the third party, the defendant failed to give approval (that is, the local orders aforesaid) promptly or early despite the letter from the Inspector of Machinery aforesaid, and it was only on 21 April 1980 that the "local orders" or instructions to proceed reached the third party who should therefore not be blamed.
While we agreed with the judgment against the defendant in favour of the plaintiff, we were unable to agree with the judgment in favour of the third party against the defendant.
The instant case belongs to the realm of liability of occupier or owner for dangerous premises at common law. For better understanding the position, we use the expression, "occupier" hereinafter.
It is important to point out immediately that the common law as regards the liability of occupier of dangerous premises (including land, buildings and structures) still applies wholly to Malaysia but much of it has been modified in Britain's Occupier's Liability Act 1957, which was intended to improve and modify the common law, e.g. and inter alia by abolishing the distinction between an invitee and a licensee. Cases decided in Britain under the Occupier's Liability Act, 1957 therefore since its enforcement in Britain, would tend to be misleading in Malaysia and ought to be eschewed in favour of pre-1957 cases there for our use and reference.
In this judgment therefore, we would mainly rely on such pre-1957 cases unless when it is in order to resort to post-1957 cases when a particular part of the common law has remained intact and unscathed.
Speaking of plaintiffs entering premises, the liability of occupiers of such premises to take care exists but it depends on the character in which they have entered them. First, we have people who enter them by virtue of a contract, such as a guest in a hotel, secondly we have people who enter them on business of interest, both to such persons as well as the occupiers, e.g. a customer going into a shop to view the goods, they are the invitees; thirdly we have persons who enter them with the express or implied permission of the occupiers, without neither a contract, nor such community of interest, they are called licensees and fourthly, there are persons who enter as trespassers. In the order we have mentioned such persons, the duty of care is cast in a descending scale, the highest duty of care being towards persons who enter the premises by virtue of a contract down and not so high in the case of invitees and so on. Such duty of care has been spelt out at common law in each case.
The plaintiff entered the lift not at all on business of common interest to the Datuk Bandar, viz. the defendant and to himself, but definitely with implied permission from the defendant. It must be borne in mind that he was injured at the lift or rather in the shaft of the lift, the lift being under the occupation or possession legally of the defendant, maintained or controlled by the defendant for the benefit of the tenants of the flats there, who when using the lifts, were invitees of the defendant, the plaintiff was a licensee of the defendant, at the lift and its immediate vicinity. Thus a lodger staying with a tenant was held to be an invitee of the tenant but a licensee of the landlord in Fairman v. Perpetual Building Society [1923] AC 74.
What then is the standard of such duty of care owed to a licensee? A licensee must take the premises as he finds them, and the duty owed is not to expose him to hidden perils, and to warn him of existing traps or concealed danger, Fairman supra. A trap, as stated by Hamilton, LJ in Latham v. Johnson [1913] 1 KB 399 is something which sometimes involves "the appearance of safety under circumstances cloaking a reality of danger".
The lift door was partly open or ajar for about 1 foot. There was no warning of any kind about the danger as the lift was out of order, neither was there any barricade of any kind. There was even no light just outside the lift door, there was no lift inside and the plaintiff could have also stepped into eternity (pardon our metaphor), the features in the instant were classic of the appearance of safety under circumstances cloaking a reality of danger.
If the independent contractor, that is, the third party in this case was not involved, then there could not be the slightest doubt that the Datuk Bandar, i.e. the defendant was liable. However it was repeatedly submitted that the defendant was not liable for default or negligence of his independent contractor whom the defendant chose and whose competence was not disputed by any party. Could therefore the blame for the plaintiff's misfortune be shifted on to the shoulders of the defendant's independent contractor in the circumstances of this case?
While the rule that an employer of an independent contractor is not liable for the default or negligence of such contractor no doubt exists, there are exceptions, and it is outside the province of this judgment to elaborate all the exceptions but only briefly to deal with them except those which are directly concerned with the instant case.
First exception is where an employer has not exercised care in selecting a competent contractor as was much pressed in argument in the present case. Second exception is a group of cases or situations when the duty to take care is said to be "non-delegable". A nondelegable duty to take care means in effect that the employer would have to see to it that such duty of care is exercised, whether by his contractor or not, otherwise he would be equally liable as the contractor, in addition, in most cases, to the liability of his contractor. Such non-delegable duty exists in the case of work causing withdrawal of support to neighbour's land, seeBower v. Peat [1876] 1 QBD 321; work done on a highway, see Tarry v. Ashton [1876] 1 QBD 314; cases of a master's duties for his servant's safety at common law, seeWilsons & Clyde Coal Co. v. English [1930] AC 57; cases of strict liability and finally cases of statutory duty imposed on certain categories of persons.
The last two mentioned exceptions require elaboration as they have considerable relevance to our instant case.
The exception in regard to cases of strict liability above mentioned refers to cases of such strict liability at common law, such as the rule in Rylands v. Fletcher. The exception covers, inter alia, all cases involving extra hazardous acts or omissions, or situations created by them, which all involve special danger to others, please see the reference to them e.g. in Salsbury v. Woodland [1970] 1 QB 324, such as damage by fire, seeHoneywill Stein Ltd. v. Larkin Brothers Ltd. [1934] 1 KB 191 so that an employer of an independent contractor, to repeat, cannot escape liability by delegating the work to such independent contractor.
In our view, the situation described earlier as facing the plaintiff was a situation created by such an extra hazardous act or omission involving special danger to such users of that lift. The defendant could not escape such liability entrusted to or by entrusting to the third party. That is why we confirmed the judgment of the High Court against the defendant in favour of the plaintiff for this reason alone.
The defendant would also be liable in any event, for a different reason, that the last mentioned exception about statutory duty applied to this case. The mainte- nance of lift was also a statutory duty imposed on defendant by the Factory and Machinery Act 1967. The defendant cannot also for the reason escape liability by delegating it to the third party, his independent contractor. Please see, e.g. ss. 14, 15 and 21 of this Act.
The breach of duty of not exposing the plaintiff to and of failure to warn the plaintiff of the concealed danger or trap in the instant case was specifically the failure by the third party and also by the defendant for seeing to it that there was no such failure, to give any warning signs in respect of the defective lift.
Such failure aforesaid of third party was in breach at least, of his contractual obligation to erect such warning signs etc. under clause 4 of the maintenance agreement of the lifts made between the defendant and the third party and a fortiori when in addition, the third party expressly agreed under clause 14 of the same to the effect to indemnify the defendant for damages for accidents at common law, the defendant was clearly entitled to indemnify from the third party in respect of the damages payable by the defendant to the plaintiff. The third party was also negligent, (quite apart from the breach of the said clause 4 of the said agreement), in respect of such failure in giving such warning signs, before the date of the accident, from the moment (like the defendant), it came to know or ought to know of the trap or hidden danger created by the defective lift notwithstanding the demoralizing delay by the defendant in approving the purchase order for the spare parts;afortiori when it had in fact already received such approval about 8 days before the date of accident.