Law of Torts
TRESPASS TO PERSON: ASSAULT AND BATTERY, AND FALSE IMPRISONMENT AND TRESPASS TO LAND
Assault
Assault involves an act of the defendant which causes the plaintiff a reasonable apprehension of an immediate infliction of force on him. The commission of this tort must also be intentional.
“The tort of assault may be defined as a direct threat made by the defendant to the plaintiff which ahs the effect of putting the plaintiff in reasonable apprehension of immediate physical contact with his person. It is important that the distinction between assault and battery be borne in mind. If I clench my fist in such a way as to put someone in reasonable apprehension of imminent contact with their person then I commit the tort of assault, but, if I actually punch that person, then I commit the tort of battery.”
(Lord Templeman & Pitchfork, Obligations: The Law of Tort, p. 310.)
Essentials of an assault
There are three essential elements of an assault[1]:
(i) Some gesture or preparation to commit battery (The threat must be of immediate force);
(ii) Reasonable fear of harm, and
(iii) Ability to carry out the treat.
Some gesture or preparation to commit battery (The threat must be of immediate force)
Words or gestures that signify a threat to commit battery in the future are not assaults. There must be necessarily some words or bodily movement by one person (e.g. the defendant) that conveys an immediate application of force on the person of the other (e.g. the plaintiff). The act of throwing a thing towards a person is an assault but if the thing falls onto that person, it is battery. Likewise, the act of riding a horse or driving a car towards a person is an assault but hitting against him is battery.
An assault is still committed even if some third person intercepted or prevented the blow from the defendant from hitting the plaintiff. The important point is whether the blow would immediately injure the plaintiff if the defendant had not been stopped.
Stephens v. Myers (1830) 4 C & P 349,
It was held in this case that —
It is not every threat, when there is an actual personal violence, that constitute an assault, there must, in all cases, be the means of carrying the threat into effect.
The defendant was shouting at a perish meeting chaired by the plaintiff. The majority of the participants in the meeting decided to expel him. The defendant, however, said that he would rather pull the plaintiff out of the chair than he be ejected. He then advanced towards the plaintiff with clenched fist, but the churchwarden who was sitting quite close to the plaintiff stopped him. The defendant was held liable for assault.
“A verbal threat of immediate force can constitute an assault. If A is visibly armed with a gun in his waist belt says to B: ‘Your money or your life,’ this is an assault even if he did not point his pistol towards B. similarly, if A approaches B from the back and says ‘Don’t turn around or I will shoot’ this can constitute assault even though A in fact may not be armed. Normally, it is not an assault to speak words of threats through the telephone since it does not involve a threat of immediate violence. However, if the person making the threat is capable of immediately injuring the plaintiff, for example, detonating explosives by remote control, it is an assault.
Words accompanying a gesture or act may negative its appearance of being an assault. If A held his clenched fists towards B, A’s gesture is an assault if it creates apprehension in B. but if A then says: ‘If you were not wearing spectacles, I would have punched you in the face.’ B was wearing spectacles at the time. A’s action accompanied by the said words does not amount to an assault. The words meant that he does not intend to punch B and B knew that the condition put by A did not fulfilled.”[2]
Tuberville v. Savage [1669] 1 Mod Rep 3
The defendant, offended by the plaintiff’s words, said ‘If it were not Assize time, I would not take such language from you’. It was Assize time when the defendant uttered such words. The issue was whether were these words amount to an assault.
The court held that the defendant’s words were not an assault. What amounts to assault, according to the judge —
The declaration of the defendant was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault. Therefore, if one strike another upon the hand or arm … in discourse it is no assault; but if one, intending to assault, strike at another and miss him, this is an assault; so, if he hold up his hand against another in a threatening manner and say nothing, it is an assault.
“However, a conditional threat is an assault. If A points his gun at B and says ‘Don’t move or I will shoot,’ or ‘Your money or your life,’ this conditional threat is an assault despite the words spoken. A’s threat puts a condition upon B’s future behavior and B’s conduct is constrained by the threat.”[3] Although in Blake v. Barnard (1840) 9 C&P 626, the court was of opinion that pointing an unloaded gun at another was not an assault, Parke B in R v. St George (1840) 9 C&P 483, a criminal case, was of opinion that to point an unloaded gun at another could constitute an assault at common law. The latter view would be more favourable.
Reasonable fear of harm
There is no requirement that the fear of imminent physical contact be produced by the words of the defendants. What is required is that the plaintiff is put in reasonable apprehension of immediate physical contact with his person. “The act or gesture of the defendant is an assault if it causes the plaintiff a reasonable apprehension of the impact of something on his body. Thus the pointing of an unloaded pistol at a person is an assault if it causes him a reasonable fear of the infliction of harm to his person. Similar is the situation where the defendant uses a toy pistol that looks like a real one. Successful bank heists and robberies with fake pistols are but ordinary news today.”[4]
Defendant’s words alone may not be sufficient for the purpose of assault if they do not give rise to reasonable apprehension of fear of harm on the plaintiff. Some words, such as “get out knives” (R v. Wilson [1955] 1 WLR 493), in a particular circumstances, may be sufficient for the purpose.[5]
Ability to carry out the threat
Although it is required that the plaintiff must be in reasonable apprehension of physical contact there is, however, no requirement that he actually be afraid of the defendant. It is sufficient that he expects physical contact to take place on his person. The tort is not committed where the defendant does not have the capacity to carry out the battery. In other words, there is no assault where the plaintiff has no reasonable belief that the defendant has present ability to affect his purpose. If, A, who is in a train moving out of a station, threatens B by showing his clenched fist at B who is on the platform, A could not be liable for assault against B. The fact that the train is leaving the station removes the defendant’s present capability to carryout a battery against the plaintiff.[6]
Thomas v. National Union of Mineworkers (South Wales Area) [1985] 2 All ER 1
During a strike at the defendants’ colliery, the plaintiffs decided to return to work. Other workers, between 60 and 70 of them, picketed outside the colliery gates. They hurled abusive and violent language at the plaintiffs to deter them. The plaintiffs sought interlocutory injunctions.
It was held on the facts and in the light of the relevant law that the injunctions sought for would not be granted. Scott J said:
The working miners are entitled to use the highway for the purpose of entering and leaving their respective places of work. In the exercise of that right they are at present having to suffer the presence and behaviour of the pickets and demonstrators. The law has long recognised that unreasonable interference with the rights of others is actionable in tort … It is, however, not every act of interference with the enjoyment by an individual of his property rights that will be actionable in nuisance. The law must strike a balance between conflicting rights and interests …
Nuisance is strictly concerned with, and may be regarded as confined to, activity which unduly interferes with the use and enjoyment of land or of easements. But there is no reason why the law should not protect on a similar basis the enjoyment of other rights. All citizens have the right to use the public highway. Suppose an individual were persistently to follow another on a public highway, making rude gestures and remarks in order to annoy or vex. If continuance of such conduct were threatened no one can doubt but a civil court would, at the suit of the victim, restrain by an injunction the continuance of the conduct. The tort might be described as a species of private nuisance, namely unreasonable inference with the victim’s rights to use the highway. But the label for the tort does not, in my view, matter.
In the present case, the working miners have the right to use the highway for the purpose of going to work. They are, in my judgment, entitled under the general law to exercise that right without unreasonable harassment by others. Unreasonable harassment of them in their exercise of that right would, in my judgment, be tortious.
A decision whether in this, or in any other similar case, the presence or conduct of pickets represents a tortious interference with the right of those who wish to go to work to do so without harassment must depend on the particular circumstances of the particular case. The balance to which I have earlier referred must be struck between the rights of those going to work and the rights of the pickets.
Battery
“A battery is a direct act of the defendant which has the effect of causing contact with the body of the plaintiff without the latter’s consent.”
(Battery, as defined by Trindade, (1982) 2 OJLS 211, at p. 216.)
Gibbons v. Pepper (1695) 1 Ld Raym 38; 91 ER 922 (KB)
[F]or if I ride upon a horse, and J.S. whips the horse, so that he runs away with me and runs over any other person, he who whipped the horse is guilty of the battery, and not me. But if I by spurring was the cause of such accident, then I am guilty. In the same manner, if A takes the hand of B and with it strikes C, A is the trespasser and not B.
The act must be intentionally inflicted, not negligently
Battery is an intentional and direct application of force to another person without his consent. The term ‘assault’ is commonly used to include battery. A battery does not always include assault. A blow from behind inflicted by an unseen assailant is a battery but the assailant has not committed an assault.[7]
Earlier, it was thought that trespass to the person was actionable even where the contact with the plaintiff was accidental. Later it was decided that the act of coming into such contact must be an intentional act.
Fowler v. Lanning [1959] 1 All ER 290
The defendant whilst on a shoot at Corfe Castle shot the plaintiff. The plaintiff brought an action for damages for trespass to the person, but his statement of claim the plaintiff did not state that the defendant was negligent. It merely stated that the ‘defendant shot the plaintiff’.
It was held that no cause of action was disclosed. The court stated that negligence or intention must be proved in trespass to the person and the burden of proof is on the plaintiff. Diplock J said:
It is fashionable to regard trespass to the person as representing the historic principle that every man acts at his peril and is liable for all the consequences of his acts … But, however true this may have been of trespass in mediaeval times … the strict principle that every man acts at his peril was not applied in trespass even as long ago as 1617.
Letang v. Cooper [1964] 2 All ER 929 (CA)
The Court of Appeal held:
The truth is that the distinction between trespass and case[8] is obsolete. We have different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. “The least touching of another in anger is a battery.” If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that “the defendant shot the plaintiff”. He must also allege that he did it intentionally or negligently. If negligent and causing damage, it is the tort of negligence.
Elements
(i) Hostile intent
(ii) Force
(iii) Without lawful justification
Hostile intent
“The Court of Appeal in Collins v Wilcock [1984] 3 All ER 375stated that bodily contact was not actionable if it was generally acceptable in the ordinary conduct of daily life, for example, jostling which is inevitable from a person’s presence in a supermarket, an underground station or a busy street. In Wilson v Pringle [1987] QB 237, another Court of Appeal, whilst not rejecting this approach, laid down that a battery involves a ‘hostile’ touching, though this appears to mean little more than that the defendant willfully interferes with the plaintiff in a way to which he (the plaintiff) is known to object.”
Wilson v. Pringle [1987] 1 QB 237
Both the defendant and plaintiff, in this case, were schoolboys. The defendant, whilst playing around, had on his own admission pulled the plaintiff’s bag from his shoulder and thereby caused him to fall to the ground. He jumped on the plaintiff and caused the plaintiff to sustain injury. The plaintiff claimed damages for battery. The plaintiff claimed that as the defendant had admitted jumping on the plaintiff there could be no defence.
It was held that the plaintiff had to show hostility on the part of the defendant to establish battery. Therefore, the case should be remitted for trial. Groom-Johnson LJ said:
In our view … in a battery there must be an intentional touching or contact in one form or another of the plaintiff by the defendant. That touching must be proved to be a hostile touching.
In the above, such horseplay between children, may or may not be battery, according to whether the tribunal of fact can discern the ingredient of ‘hostility’.
“In Daning bin Laja v K.K. Hj Tuaran bin Majid, the plaintiff sued the defendant for damages for assault and battery. The defendant, a policeman, fired the shot at the plaintiff while chasing him. The plaintiff claimed that the defendant fired the shot at him ‘intentionally and maliciously without lawful excuse’. Ian H.C. Chin J.C. held the defendant liable and that he had absolutely no ground for believing that the plaintiff had at the relevant time committed an offence that justifies shooting when he allegedly tried to run away. The court further stated that for the tort of assault and battery, it is not necessary that the act complained of should be malicious.”[9]
Force
“Any physical contact with the body of the plaintiff is sufficient to amount to force. It is not necessary for the plaintiff to suffer any physical hurt. If the defendant applies force it is actionable trespass as all forms of trespass are actionable per se. Thus the least touching of another in anger or the spitting on a man’s face is battery.
The act by the defendant must be voluntary i.e. the defendant intended to bring about the contact with the plaintiff. If A seizes B’s hand and strikes C, B has not committed battery. A did. The person who intended to bring about the contact is liable for all the harmful consequences that follow. Thus if the A pushes B into a swimming pool with hostile intent and B or others suffer injury, A is liable for the injuries even though it was neither desired nor even foreseen by A.”
Without consent of the plaintiff
Medical treatment of an unconscious person is lawful on the basis of implied consent or necessity.
F v. West Berkshire Health Authority [1989] 2 All ER 545
The issue was whether the court have power to declare that the sterilisation of a woman suffering from a serious mental disability, without her consent, not unlawful?
The court held the it did have such power, under its inherent jurisdiction, provided the operation was in the patient’s best interest — that the operation was accepted as appropriate treatment by a reasonably body of medical opinion skilled in that particular form of treatment. Lord Bridge of Harwich said:
The issues canvassed in argument before your Lordships revealed the paucity of clearly defined principles in the common law which may be applied to determine the lawfulness of medical or surgical treatment given to a patient who for any reason, temporary or permanent, lacks the capacity to give or to communicate consent to that treatment. It seems to me to be axiomatic that treatment which is necessary to preserve the life, health or well-being of the patient may lawfully be given without consent. But, if a rigid criterion of necessity were to be applied to determine what is and what is not lawful in the treatment of the unconscious and the incompetent, many of those unfortunate enough to be deprived of the capacity to make or communicate rational decisions by accident, illness or unsoundness of mind might be deprived of treatment which it would be entirely beneficial for them to receive.
Moreover, it seems to me of first importance that the common law should be readily intelligible to and applicable by all those who undertake the care of persons lacking the capacity to consent to treatment. It would be intolerable for members of the medical, nursing and other professions devoted to the care of the sick that, in caring for those lacking the capacity to consent to treatment, they should be put in the dilemma that, if they administer the treatment which they believe to be in the patient’s best interests, acting with due skill and care, they run the risk of being held guilty of trespass to the person, but, if they withhold that treatment, they may be in breach of a duty of care owed to the patients. If those who undertake responsibility for the care of incompetent or unconscious patients administered curative or prophylactic treatment which they believe to be appropriate to the patient’s existing condition of disease, injury or bodily malfunction or susceptibility to such a condition in the future, the lawfulness of the treatment should be judged by one standard, not two. It follows that if the professionals in question have acted with due skill and care, judged by the well-known test laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, they should be immune from liability in trespass, just as they are immune from liability in negligence. The special considerations which apply in the case of sterilisation of a woman who is physically perfectly healthy or of an operation on an organ transplant donor arise only because such treatment cannot be considered either curative or prophylactic.
Airedale NHS Trust v. Bland [1993] 1 All ER 821
Anthony Bland, aged 17½, crushed in the 1989 Hilsborough football disaster, had since then been in a persistent vegetative state, without hope of recovery or improvement. The plaintiff now sought a declaration that they could lawfully discontinue all life-sustaining treatment.
The court granted the declaration. Lord Browne-Wilkinson said:
[T]his House in F v West Berkshire Health Authority [1989 2 WLR 1025 developed and laid down a principle, based on concepts of necessity, under which a doctor can lawfully treat a patient who cannot consent to such treatment if it is in the best interest of the patient to receive such treatment. In my view, the correct answer to the present case depends on the extent of the right to continue lawfully to invade the bodily integrity of Anthony Bland without his consent. If in the circumstances they have no right to continue artificial feeding, they cannot be in breach of any duty by ceasing to provide such feeding.
What then is the extent of the right to treat Anthony Bland which can be deduced from F v West Berkshire Health Authority? Both Lord Brandon of Oakbrook and Lord Goff make it clear that the right to administer invasive medical care is wholly dependent upon such care being in the best interests of the patient … Moreover, a doctor’s decision whether invasive care is in the best interests of the patient falls to be assessed by reference to the test laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, viz is the decision in accordance with a practice accepted at the time by a responsible body of medical opinion? … In my judgment it must follow from this that, if there comes a stage where the responsible doctor comes to the reasonable conclusion (which accords with the views of a responsible body of medical opinion) that further continuance of an intrusive life support system is not in the best interests of the patient, he can no longer lawfully continue that life support system: to do so would constitute the crime of battery and the tort of trespass to the person. Therefore he cannot be in breach of any duty to maintain the patient’s life. Therefore he is not guilty of murder by omission …
Finally, the conclusion I have reached will appear to some to be almost irrational. How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question. But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder.
Defence
The defences to tort of battery include consent and self-defence. A doctor who performs surgery with the consent of the patient is not liable for battery.
Consent
Consent and volenti non fit injuria are common defences in assault and battery cases.
Chatterton v. Gerson [1981] 1 All ER 257
In Chatterton’s case, the plaintiff, who had earlier undergone a hernia operation, was administered a spinal injection to remove the pain but had resulted in the numbness of her right leg. The issue raised was on consent and a related issue regarding the information given by the defendant to the plaintiff about the nature and probable effect of such treatment.
According to Bristow J:
[C]onsent of the injured party is a defence to … a civil wrong, the consent must be real. … [I] n order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence. … Where the claim is based on trespass to person, once it is shown that the consent is unreal, then what the plaintiff would have decided if she had been given the information which would have prevented vitiation of the reality of her consent is irrelevant.
Bristow J further said:
Once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, the consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass. … [I]f information is withheld in bad faith, the consent will be vitiated by fraud. …[I]f by some accident … where a boy way admitted to hospital for tonsillectomy and due to administrative error was circumcised instead, trespass would be the appropriate cause of action against the doctor. … [I]t would be very much against the interests of justice if actions which are really based on a failure by the doctor to perform his duty adequately to inform were pleaded in trespass. … [Miss Chatterson] was under no illusion as to the general nature of what an intrathecal injection of phenol solution nerve block would be, and in the case of each injection her consent was not unreal.
“A police officer or a citizen effecting a lawful arrest has a valid defence against a claim for battery. Under the law of crimes, grave and sudden provocation is a defence that reduces the offence of murder to culpable homicide not amounting to murder. However, it is not a defence under the law of torts. In Tiong Pik Hiong v Wong Siew Gieu, the defendant driven by violent jealousy caused by the plaintiff’s association with her husband attacked the plaintiff and scratched her face, neck and arm, thereby causing her injury. The plaintiff claimed damages for battery. The court held that the fact of her jealousy does not at all excuse the defendant’s action. However, it is relevant on the question whether there is any ground for mitigating of damages and also on the question whether the court should give exemplary damages.”[10]
Effecting a lawful arrest [under the Malaysian law]
“Section 15(2) of the Criminal Procedure Code entitles a police officer or other person making an arrest to use all necessary means to effect the arrest of a person who forcibly resisted the endeavor to arrest him or attempted to evade the arrest.
In Mahmood v Government of Malaysia, Yong J. held that section 15(2) of the Criminal Procedure Code entitles the police to use all means necessary to effect the arrest and capture of persons the police reasonably suspected to be involved in the commission of a seizable offence. After disclosing their identity and after issuing the necessary warnings they could take all steps including the use of firearms as a last resort to prevent them from escaping. Should such persons in attempting to escape ignore such warnings and are injured they have themselves to blame.
In this case, the police chased after two persons seen running away from the scene at the Lake Gardens where a seizable offence was reasonably suspected to have been committed. Despite repeated warnings to stop the plaintiff and his companion, they chose to continue to run away to escape. The police fired a warning shot. The court found that the plaintiff knew that if he did not stop running away he would be shot. In the circumstances, the police was justified as a last resort to fire the second shot that hit the plaintiff to effect the plaintiff’s arrest, otherwise he would have escaped and disappeared into the darkness as his companion did.
However, section 15(3) of the Code provides that the arrest cannot cause death unless the alleged offence is one punishable with death or imprisonment for life.
Remedies
The normal remedy for assault and battery is a claim for damages.
In Tiong Pik Hiong v Wong Siew Gieu [1964] 30 MLJ 181, the court took into consideration that the defendant was under great mental strain at the time when she scratched the plaintiff’s face, neck and arm, thereby causing her injury. The plaintiff, by her association with the defendant’s husband, contributed to the defendant’s condition. However, the defendant’s attack was vicious and she should not have resorted to violence. In the circumstances the court awarded $450 as damages, being a sum higher than the normal amount payable for such injuries.
It is not clear whether a detainee who suffered from assault whilst in detention can obtain an order of habeas corpus.
In Teoh Yook Huwah v Menteri Hal Ehwal Dalam Negeri & Anor, the appellant sought an order of habeas corpus[11] alleging that the police assaulted him while in detention. The trial court found as a fact that there was assault but refused to grant the order on the ground that habeas corpus was not the proper remedy where a detainee suffered from assault. On appeal, Edgar Joseph Jr S.C.J., delivering the judgment of the Supreme Court (Gunn Chit Tuan & Mohd Eusoff Chin S.C.JJ. with him) found that the learned judge’s finding of assault was wrong as the allegation of assault by the appellant’s sister was hearsay, being wholly unsupported by evidence. In the premises, the Court refused to express any opinion on whether habeas corpus is an appropriate remedy in the case of an assault as it would merely be obiter dicta.”[12]
[1] See also Syed Ahmad Alsagoff, The Law of Torts in Malaysia and the Syariah, unpublished.
[2] Syed Ahmad Alsagoff, The Law of Torts in Malaysia and the Syariah, unpublished.
[3] Ibid.
[4] Ibid.; Lord Templeman & Pitchfork, Obligations: The Law of Tort, p. 310.
[5] Wan Azlan & Mohsin Hingun, Principles of the Law of Tort in Malaysia, p. 105.
[6] Ibid.
[7] Syed Ahmad Alsagoff, The Law of Torts in Malaysia and the Syariah, unpublished.
[8] Case: “A form of action which lay for damages for wrongs or injuries not accompanied with immediate violence, i.e., where covenant or trespass did not apply.” (Mozley and Whiteley’s Law Dictionary.)
[9] Syed Ahmad Alsagoff, The Law of Torts in Malaysia and the Syariah, unpublished, pp. 33-40.
[10] Ibid.
[11] The remedy used for deliverance from illegal confinement. This is directed to any person who detains another in custody, and commands him to produce the body, wit the day and cause of his caption and detention.
[12] Ibid.
Trespass to Land
“Trespass to land consists of any unjustifiable intrusion by a person upon the land in the possession of another. The slightest of the boundary is sufficient to constitute trespass. In Cheah Kim Tong & Anor v Taro Kaur [1989] 3 MLJ 252, Peh Swee Chin J. reiterated that any trespass is actionable per se. It is not necessary for the plaintiff to prove that he suffered actual damage.
Where a person intentionally enters into the plaintiff’s land, he is liable for trespass even though he does not know that he is trespassing, for example, having lost his way or he genuinely but erroneously believed that the land was his or that he has the right to be there.
In MBf Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) [1998] 4 CLJ 136, the plaintiff developed two zones of industrial land in Johor into factory lots for sale. The defendant’s land was located in between the two zones. The plaintiff constructed a stretch of road right across the defendant’s land to enable free access and free flow of traffic between the two zones for the convenience of its purchasers. The defendant barricaded the access road by erecting concrete bollards across the road.
The plaintiff sought a mandatory injunction against the defendant to remove the concrete bollards. The plaintiff claimed that the construction of the access road was in accordance with the plans approved by the authorities. The defendant counterclaimed that the construction of the access road on its land constituted a continuing trespass and nuisance. The defendant sought from the court a perpetual prohibitory injunction to restrain the plaintiff from encroaching onto and/or using the access road and also a mandatory injunction that the plaintiff reinstates the defendant’s land to its original condition.
Abdul Malik Ishak J held that it is wrong to assume that no one can be liable for trespass unless he has notice that he is trespassing. The trespasser is liable whether he knows that he is trespassing or does not know that he has no right in law to be there. The court found that the Majlis Daerah Johor Bahru should not have approved the road and the MRT on the defendant’s land. The plaintiff was liable in trespass.
Where a person enters into a plaintiff’s land involuntarily, for example, he is thrown or pushed into the plaintiff’s land he is not liable for trespass because there is no act on his part.
The Concept of Possession
“Trespass to land is founded upon interference with the plaintiff’s possession of his property. It should be noted that it is not ownership which gives rise to a cause of action in trespass, but possession. …
The fact that a right of action is based upon possession means that use of the land is not sufficient of itself to constitute possession. The person who has a licence to occupy the land does not possess the land for the purposes of the tort of trespass, he simply has the use of the property (Hill v Tupper (1863) 2 H & C 121). Nor does it appear that a lodger or a guest in a hotel has possession for this purpose (Allan v Liverpool Overseers (1874) LR 9 QB 180).
(Lord Templeman & Pitchfork (Eds.), Obligations: The Law of Tort, pp. 316-317.)
Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary with the type of the land. In the case of vacant and unenclosed land that is uncultivated, there is little that can be done on the land to indicate possession. In the case of a building, its occupation denotes possession. If the building is unoccupied, there is possession if the person has the key or other method of obtaining entry.
Mere physical presence on the land or de facto control of it does not amount to possession sufficient to bring an action of trespass. Thus a lodger in a private house is only a licensee and cannot sue in trespass because possession remains with landlord. Similarly a servant occupying a room in his master’s house and a guest in a hotel has no exclusive possession of his room and cannot bring an action for trespass.
On the other hand, a tenant has exclusive possession of the demised premises. He, and not the landlord, is the proper party to bring an action in trespass during the currency of the tenancy. A sub-tenant has exclusive possession of the rooms demised and can also bring an action in trespass.
In Malaysia a squatter has no right either in law or in equity. In Sidek bin Haji Muhammad & 461 Ors v The Government of the State of Perak & Ors [1982] 1 MLJ 313, the appellants opened up a large part of jungle area near Telok Anson. They were squatters and later other squatters joined them. The State granted three-acre lots to some settlers but others, including the appellant, were not successful. They sought a declaration that they were entitled in law and in equity to be in possession of the respective lots originally opened up and occupied by them. The Federal Court (Raja Azlan Shah CJ (Malaya), Salleh Abbas FJ & Abdoolcader J) held that it was clear beyond doubt that the appellants have no cause of action against the respondents and they cannot succeed because they were squatters. Squatters have no right either in law or in equity. They cannot plead that they used and occupied the land as squatters. Furthermore, section 48 of the National Land Code provides that ‘no title to State land shall be acquired by possession, unlawful occupation or occupation under any licence for any period whatsoever’.
A temporary occupation licensee has exclusive possession of the land during the period of the licence and can bring an action in trespass.
In Julaika Bibi v Mydin [1961] 27 MLJ 310, the plaintiff, holder of a temporary occupation licence (TOL), sued the defendant for wrongful occupation of a house on the said land and claimed for ejectment, plus damages for trespass. At the time the plaintiff received the TOL, the defendant was already in possession of part of the house with the consent of the previous TOL holder.
The court held that a TOL holder could bring an action for ejectment in tort against a trespasser. The defendant was a trespasser against the plaintiff from the moment of cancellation of the previous title and the issue of a fresh TOL to the plaintiff. On the facts of the case, the court further found that even if the defendant was not a trespasser, the plaintiff could recover possession and mesne profits[1].
In Mohamed Said v Fatimah [1962] 28 MLJ 328, the appellant’s temporary occupation licence (TOL) expired on December 31, 1960 and he did not subsequently make the required renewal payment until July 5th, 1961. He brought an action for trespass on May 6, 1961 against the respondent. Adams J. held that on May 6, 1961, the appellant had no right to possession in the land and therefore could not institute an action for trespass against the respondent.
In Yap Lai Yoke v Chin Fook Wah [1984] 2 MLJ 274, the plaintiff, the registered proprietor of land under qualified title, claimed that the owners of adjoining lots had unlawfully built extensions to their buildings and thereby encroached on his land. The Federal Court held that on the balance of probabilities the lands in question belong to the plaintiff. The wrong siting of the roads by the authorities concerned that caused certain lots to have more land and others (including the defendants) to have less is a matter between the authority and the respective landowners. The defendants have no right to encroach on the land of another to make up for his loss and unlawfully extend his building thus encroaching on the plaintiff’s land. He does so at his own peril. Merely erecting permanent structures by extension of building unlawfully on the land is not sufficient to create any right against the rightful owner protected by title.
The Federal Court agreed with the trial judge that the defendant’s remedy should have been sought against the authorities concerned and should not prejudice the rights of an innocent third party like the plaintiff. The Court affirmed the plaintiff’s award of damages.
Lee Hun Hoe C.J. (Borneo), delivering the decision of the Federal Court, stated that once the plaintiff had established his title and encroachment by the defendants, the latter must show that they have better titles than the plaintiff in respect of the areas they allegedly encroached. Otherwise they would be guilty of trespass.
Possession in law
A person has possession in law has the intention not merely to exclude the world at large from interfering with the thing in question but to do so on his own account and in his own name. Normally possession in law exists in conjunction with possession in fact. Thus a tenant has possession in law and in fact but not longer a lodger or a licensee, who have possession in fact but not in law.
“The plaintiff possession of the land need not amount to possession at law, it can be satisfied by possession in fact. Possession in fact does not require that the plaintiff be in possession of the property for 24 hours every day. So, for example, the plaintiff who leaves the property to go out on an errand or to go to work still remains in possession in fact. Possession in fact covers cases where the plaintiff has no actual property interest in the land affected but does actually have possession of the land or is otherwise in control of it. Thus a plaintiff who had possession under a lease which was wholly void by statute was held to have possession for the purpose of the tort of trespass (see Graham v Peat (1801) 1 East 244).”
(Lord Templeman & Pitchfork (Eds.), Obligations: The Law of Tort, pp. 316-317.)
Graham v Peat (1801) 1 East 244
Some land had been demised to the plaintiff by the rector of a parish, although the lease was void by statute, as the rector no longer lived in the same parish. The defendant had trespassed on the plaintiff’s land.
The court held that the plaintiff’s possession was sufficient to maintain an action for trespass against the defendant. “Any possession”, according to Lord Kenyon CJ, “is a legal possession against a wrong-doer.”
Immediate right to possession
This is also known as constructive possession. It signifies the lawful right to retain possession when one has it or to acquire it when one has not. When a person entitled to immediate possession actually enters upon his land, he acquires possession and the law deems that he had possession of it from the moment that his right to it accrues.
For example A’s father died in January 1982 leaving all his property to A. unknown to A, a piece of land at Puchong belongs to his father. A discovers this in 1986 and claimed possession of the land from B, who was occupying the land. B refused to move out claiming that the land forms part of his ancestral property. In an action for possession, the court gave possession to A in a judgment dated January 1991. The law considers that A has possession of the said land from the moment that his right to it accrues i.e. 1982.
This notion of relating back of possession is known as trespass by relation. The consequence of relating back is that the rightful owner can sue for acts of trespass committed while he was actually out of possession and claim mesne profits. Thus A can sue B for trespass and mesne profits from January 1982 onwards until B returns possession of the land to A.
Mesne profits is a monetary claim for the damage suffered by a person kept out of the possession of his land.
Interference with possession
Interference with possession of the land may occur by a wrongful entry into the land of another. For example, throwing things into the plaintiff’s land, allowing cattle from the defendant’s land to enter into the plaintiff’s land, placing a ladder against or driving nails into the wall of the plaintiff or throwing a person into the plaintiff’s land.
It may also occur by entering or remaining on the land beyond the permission given. Thus if A has a permit to stay in B’s house for 2 days but stayed for 3 days, A commits trespass.
Land
Section 5 of the Malaysian National Land Code widely defines ‘land’ to include the surface below, vegetation, all things attached to earth or permanently fastened and land covered by water.
Trespass of a highway
If a person makes unreasonable use of the highway, he commits trespass against the person in possession of the soil on which the highway rests. In Hickman v Maisey [1900] 1 QB 752, the plaintiff owns land crossed by a highway and therefore had possession of the soil underlying the highway. The defendant, a ‘racing tout’, had been walking up and down a 15 yard stretch of the highway to watch and take notes of the trials of racehorses going on in the plaintiff’s land. The court held that the defendant was a trespasser.
Hickman v Maisey [1900] 1 QB 752
A L Smith LJ said:
[W]hat is the lawful use of a highway? Many authorities show … that prima facie the right of the public is to pass and repass along the highway … [T]hough highways are dedicated prima facie for the purpose of passage ‘things are done upon them by everybody which are recognised as being rightly done and as constituting a reasonable and usual mode of using the highway … I cannot agree that in this case the defendant was using the highway in an ordinary and reasonable manner, I do not agree with the defendant’s argument that the intention and object of the defendant in going upon the highway cannot be taken into account in determining whether he was using it in a lawful manner. His intention and object are all important.
Harrison v Duke of Rutland [1893] 1 QB 142 (CA)
The defendant owned a grouse moor[2]. There was a highway constructed across the moor. While a shoot was in progress, the plaintiff went on to the highway and waved his handkerchief and open and shut his umbrella to divert the grouse from the shooting area. The defendant’s servant held him down to prevent further interference until the shoot was over. The plaintiff brought an action for assault and false imprisonment.
The Court of Appeal held that the plaintiff action should fail as he was a trespasser on the highway. Kay LJ said:
The plaintiff went upon to this highway, not for the purpose of exercising as one of the public his right of passage, but of interfering with the grouse drive by placing himself upon the soil of the highway so as to prevent the grouse from flying over the butts. … I am unable to agree that this was a use of the right of passing along the highway. I think it was an abuse of that right. In other words, it was a use of the soil of the highway for another purpose, which use interfered, and was intended to interfere, with a right which was then being exercised by the owner of the soil, and was incident to that ownership. Such a misuse of the soil of a highway is a trespass.
Trespass to the sub-soil
Under section 44(1)(a) of the Malaysian National Land Code 1965, the owner of land has exclusive use of so much of land below surface as is reasonably necessary to the lawful use and enjoyment of his land. If A bores a tunnel from his land into B’s sub-soil, there is trespass against B.
In Karuppanan v Balakrishnan [1994] 3 MLJ 584, the appellant bought a hotel whose sewerage system, manholes and septic tanks encroached on the respondent’s land. The respondent intended to build on their land but owing to the trespass, they could not continue the building works that remain at a standstill. The trial court granted the respondent an injunction compelling the appellant to remove the encroachments. Lamin FCJ delivering the judgment of the Federal Court held that in the case of a serious trespass to land and airspace, the owner is entitled to an interlocutory mandatory injunction to remove the source of the trespass. It does not matter that the source of the trespass had already been in existence before the new owner came to own the land and whether or not he knew or had notice of it.
In Cox v Moulsey (1848) 5 CB 533, the defendant drove a stake into the subsoil owned by the plaintiff. The defendant was held liable for trespass. “So where the possession of the surface and the subsoil is in the hands of different persons it is only the owner of the subsoil who can maintain as action in respect of trespass to the subsoil and vice versa.”
(Lord Templeman & Pitchfork (Eds.), Obligations: The Law of Tort, p. 319.)
Interference with air space
Section 44(1)(a) of the Malaysian National land Code 1965 also gives the owner of land exclusive use of so much of air space as is reasonably necessary to the lawful use and enjoyment of land. The invasion of the air space above a person’s land is a trespass.
In Karuppanan v Balakrishnan, supra, the side windows of the appellant’s hotel also protrude into the respondent’s land. The Federal Court held that section 44(1)(a) clearly gave the respondent the exclusive use and enjoyment of the air space above the surface of his land though not a right to the heaven above. The appellant has no legal right to encroach into the airspace of the respondent’s land unless he allows it.
In Kelsen v Imperial Tobacco Co [1957] 2 QB 334, the court held that an advertising sign erected by the defendants on their own property, which projected into their airspace above the plaintiff’s shop, created a trespass. The plaintiff can bring an action for an injunction even if he suffers no damage at all.
Kelsen v Imperial Tobacco Co [1957] 2 QB 334
The plaintiff’s shop was one-storey high. The next shop was two storeys higher and there were three metal signs on the wall advertising the defendants’ wares which encroached very slightly on the airspace above the plaintiff’s shop. A few years later, due to business difference, the plaintiff demanded that the defendants remove the signs. The defendants refused and the plaintiffs sought for a mandatory injunction.
McNair J said:
[W]hether an invasion of an air space by a sign of this nature gives rise to an action in trespass …
In Gifford v Dent [1926] WN 336, Romer J, clearly took the view that a sign which was erected on the wall above the ground floor premises, which had been demised to the plaintiff, and projected some four feet eight inches from the wall constituted a trespass over the plaintiff’s air space, that air space being the column of air above the basement which projected out under the pavement. Romer J said:
If he was right in the conclusion to which he had come that the plaintiffs were tenants of the forecourt and were accordingly tenants of the space above the forecourt usque ad cœlum[3], it seemed to him that the projection was clearly a trespass upon the property of the plaintiffs.
That decision … has been recognised … as stating the true law. … Accordingly, I reach the conclusion that a trespass, and not a mere nuisance, was created by the invasion of the plaintiff’s air space by this sign.
Section 76(1) of the Malaysian Civil Aviation Act 1969, provides that civil aircraft flying at a reasonable height do not commit trespass. Under section 76(2), any damage caused by falling objects are recoverable without proof of negligence or intention as if the willful act, neglect or default of the owner of the aircraft caused the loss.
English Civil Aviation Act 1982:
76. Liability of aircraft in respect of trespass, nuisance and surface damage
(1) No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with and there has been no breach of section 81 below.
(2) Subject to subsection (3) below, where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article, animal or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.
(3) Where material loss or damage is caused as aforesaid in circumstances in which —
(a) damages are recoverable in respect of the said loss or damage by virtue only of subsection (2) above, and
(b) a legal liability is created in some person other than the owner to pay damages in respect of the said loss or damage,
the owner shall be entitled to be indemnified by that other person against any claim in respect of the said loss or damage.
Bernstein of Leigh (Lord) v Skyviews & General Ltd [1977] WLR 136 (HC)
The defendants flew over the plaintiff’s land for the purpose of taking aerial photographs of the plaintiff’s country house which the defendants later offered to sell the photographs to him. The plaintiff brought an action against the defendant for damages alleging that the defendants had been guilty of trespass by entering the airspace above his property, or guilty of an actionable invasion of the plaintiff’s right to privacy by taking the photographs without his consent.
The court gave judgment for the defendants. According to the court, the plaintiff’s right to airspace above his land was limited to such right as was necessary for the ordinary use and enjoyment of the land and of structures upon it. These rights had not been infringed by the defendants. Griffiths J said:
I can find no support in authority for the view that a landowner’s rights in the air space above his property extend to an unlimited height … The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of the airspace. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for the ordinary use and enjoyment of his land and the structures on it, and declaring that above that height he has no greater rights in the air space than any other member of the public.
Continuing Trespass
Trespass may be a continuing wrong. If A remains on the land or allows things placed on the plaintiff’s land to remain, this is continuing trespass. In Holmes v Wilson (1839) 10 Ad & El 503, the defendant built buttresses on the plaintiff’s land to support a road. The plaintiff sued the defendant and the defendant paid damages. When the defendant did not remove the buttresses on time, the plaintiff sued again for trespass. The court held that the defendant was available in trespass for his continued refusal to remove the buttresses on time.
Every continuance of a trespass is a fresh trespass. In Cheah Kim Ting & Anor v Taro Kaur [1989] 3 MLJ 252, Peh Swee Chin J held that in continuing trespass a fresh cause of action arises from day to day so long as the trespass continues and persists. In such cases, the defence of limitation of time under section 9 (1) of the Limitation Act 1953 cannot bar the plaintiff’s action.
Trespass ab initio
If a person enters upon land or premises with lawful authority but subsequently abuses his authority, then according to an ancient doctrine of the common law, he becomes a trespasser ab initio, i.e. his conduct is counted as unlawful from the very beginning. The doctrine applies only if the authority is that of the law and the purpose of this doctrine is to protect the public against abuses of authority.
The abuse must be a positive act (a misfeasance) and not a mere omission (a non-feasance). In the Six Carpenters’ Case (1610) 8 Co Rep 146a, six carpenters entered into a restaurant [wine tavern], ordered and ate the food and [drank wine but] later refused to pay the bill. The owner sued the six for trespass ab initio. The court held that it was not trespass ab initio because it was an act of non-feasance, a mere omission to pay.
Six Carpenters’ Case (1610) 8 Co Rep 146a
Coke CJ held:
[W]hen an entry, authority or licence is given to any one by the law and he abuses it, he shall be a trespasser ab initio; but where an entry, authority or licence is given by the party and he abuses it, there he must be punished for his abuse but shall not be a trespasser ab initio. The reason for this difference is that in the case of a general authority or licence of law, the law adjudges by the subsequent act, quo animo, or to what intent he entered.
The courts are inclined to hold that a partial abuse of an authority does not render everything done under it unlawful. In Elias v Pasmore [1934] All ER Rep 380, the police had lawfully entered the premises to arrest man found in the plaintiff’s premises but later seized a number of documents, some of them were, however, unlawfully taken. The court held that the subsequent unlawful act did not render their original entry a trespass.
Cinnamond v. British Airport Authority [1980] 1 WLR 582 (CA)
In this case, six minicab drivers were prohibited from entering Heathrow Airport. They appeal against the decision. The Court of Appeal dismissed the appeal. Lord Denning MR in his judgment said:
[W]hen one of these car-hire drivers picks up a passenger at a London hotel and drives to the airport he has the right to enter so as to drop his passenger and luggage. But the driver has no right whatever to hang about there so as to “tout” for a return fare. By so doing he is abusing the right which is given to him by the law, and that automatically makes him a trespasser from the beginning … There car-hire drivers abused the authority given to them by the law by hanging about and “touting”. So they become trespassers from the beginning, and can be turned out. Whether they come with a passenger and then stop to “tout” or whether they come with a faked slip, they are abusing the authority given by the law. They become trespassers from the beginning and can be turned out.
DefencesLicence
A license is a permission to enter a person’s land without passing any interest in the property to the licensee. A licence confers rights in personam (right only to that person, the licensee). Leases, easements and profits a prendre are interest in land and confer rights in rem.
Profits a prendre are rights exercised by one person in the soil of another accompanied with participation in the profits of the soil, for example, rights of pasture or digging sand.
A bare licence is revocable but the licensor may be liable for breach of contract. Thus if A pays to see a show at the cinema and the staff refused to allow him to enter the theatre, A can sue for breach of contract. Some contractual licences are irrevocable, like, a licence coupled with an interest. For example, a licence to hunt and carry the deer killed. To hunt is a licence but to carry away the deer is a grant. Until the deer is carried away, the licence is irrevocable.
Hurst v Picture Theatres Ltd [1915] 1 KB 1
The plaintiff paid to enter the defendant’s cinema. When he sat down in the seat which he had paid for he was asked to leave the premises by one of the defendant’s employees, who believed that he had not paid for his seat. The plaintiff refused to leave and was eventually ejected by the defendant’s doorman. It was held that the defendant had no right to eject the plaintiff in this manner. The contract between the parties gave the plaintiff an irrevocable licence to be in the cinema for the duration of the performance and the defendant could not revoke the plaintiff’s licence unless the plaintiff had exceeded the terms of the licence, which he had not.
(Lord Templeman & Pitchfork (Eds.), Obligations: The Law of Tort, p. 322.)
Justification by law
Section 16 (1) of the Malaysian Criminal Procedure Code gives power to any person acting under a warrant of arrest or any police officer or penghulu (official headman) having authority to arrest, the authority to search a place entered by a person they intend to arrest. Under section 16(2), such persons may enter by breaking open an outer or inner door or window of any place so as to prevent person to be arrested the opportunity of escaping. Section 18 provides that any police officer or other persons authorized to make an arrest may break open any place in order to liberate himself or any other person detained therein who lawfully entered the premises for the purpose of making an arrest.
A bailiff [an official of the court] who enters private premises on civil process, for example, to seize property in execution, commits no trespass provided that he does not gain entry by breaking in. He may enter by opening an unlocked door but may not break open a locked one.
Necessity: The defence of necessity may also be available, but the scope was considered in Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985. Taylor J said:
Necessity is not a good defence if the need to act is brought about by negligence on the part of the defendant. Once that issue is raised the defendant must show on the whole of the evidence that the necessity arose without negligence on his part.[4]
RemediesRe-entry or self-help
The person entitled to possession can enter or re-enter the premises and may use necessary force.
Action for recovery of land (suit for ejectment)
A person dispossessed of land can recover it by an action for recovery of land under section 7 of the Specific Relief Act 1950, in the manner prescribed by the law relating to civil procedure. Under section 8, he may recover by suit for possession thereof and there shall be no bar for him to sue to establish his title to any such property and to recover possession thereof. No suit under section 8 shall be brought against any government in Malaysia and no appeal or review shall lie from any order or decree passed in any suit under this section. Under Order 15 Rule 1 of the Rules of the High Court 1980, the plaintiff may also claim for mesne profits in an action for recovery of land.
In Poh Swee Siang v Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & 2 Ors [1987] 2 CLJ 302, the plaintiff was a ground tenant of six acres of vegetable land since 1950. In 1964 he obtained permission to erect a house on the said land. Over the years, the plaintiff steadily expanded his farm and erected extra structures without prior written approval of the Khoo Kongsi, the 1st defendant.
By notice dated 12th July 1976, the 1st defendant purported to terminate the tenancy of the vegetable land and by notice dated 30th June 1982 they purported to terminate the tenancy of the land where the house stands. In October 1982, the defendants by their agents or servants unlawfully entered the plaintiff’s land, destroyed the vegetables and some structures on the land and threatened to forcibly evict the plaintiff.
The plaintiff sued the defendants for damages for trespass on his land, damage to the vegetables and destruction of some structures on his land. He also sued for an injunction to restrain them from entering the land. He contented that the two notices were invalid and ineffective as the provisions of the Control of Rent Act 1966 protects him.
Ajaib Singh J. held that the Control of Rent Act 1966 did not protect the plaintiff as it applied only to premises built before the end January 1948. Thus, two notices to quit the land and the house were valid and effective to terminate both tenancies. Therefore the 1st defendant can rightfully repossess the land and require the plaintiff to dismantle and remove his double storey house together with all the farm buildings thereon by 31st July 1986. However, the 1st defendant should do this by due process of law as provided for under section 7 of the Specific Relief Act 1950 and not by taking the law into their own hand.
The court further stated that the law ‘does not give them any rights to disregard the due process of law. The plaintiff was a simple ordinary peasant while the defendants were rich and powerful. But might cannot always be right and it is the duty of the court in a case like this to put the defendants in their proper place and tell them that they cannot do such things with impunity’.
The court found that the defendants had acted in a very high handed manner and awarded the plaintiff a sum of RM150,000 as exemplary damages.
By way of special damages, the court ordered the defendants to pay the plaintiff RM42, 000 for the loss of the water sprinkler system, the pigsty, the chicken coop and the attap hut, RM135, 000 for the loss of vegetable produce on 2½ acres of land for 3 years and 9 months at the rate of RM 3,000 per month.
In Ng Ben Thing & Ors v Krishnan a/l Arumugam [1998] 5 MLJ 579, Kalamanathan Ratnam JC said that an illegal occupier is in no better or worse positions than a squatter do. A squatter has no rights. He enters illegally into occupation of another’s land with an intention of staying as long as he can, gratis. The plea of homelessness must not sway the court from its duty to the owner of the land. The owner has right to immediately eject and evict the illegal occupiers. If the latter wants time to move out, it must be at the behest and goodwill of the landlord. The court ought not to consider a plea by an illegal occupier for any extension of time.
Section 341 of the Malaysian National Land Code provides that adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of an action for the recovery of land by the proprietor or any person or body entitled to an interest therein. For this purpose, the Limitation Act shall not operate to extinguish any title to or interest in land.
Mesne Profits
Where the defendant kept the plaintiff out of possession of his land, the court may award mesne profits as damages under Order 15 Rule 1 of the rules of the High Court 1980 for the injury caused to the plaintiff.”[5]
Damages
“The plaintiff may seek a remedy in damages but, where the trespass is a trivial one, then damages will be nominal. Where damage is done to the plaintiff’s land then the measure of damages is the diminution in value of the plaintiff’s land and not the cost of restoring the land to the state it was in before the trespass. There is a possibility that the plaintiff may be able to recover aggravated or exemplary damages where the case is an appropriate one for the grant of such a remedy. Such was the case in Drane v Evangelou [1978] 1 WLR 455 where the plaintiff was thrown out of his lodgings after obtaining a reduction in his rent through the rent officer and the defendant calculated that it was cheaper to refuse to comply with any injunction than to take the plaintiff back. It was held that this was an appropriate case for the granting of £10,000 exemplary damages to teach the defendant a lesson.
Injunction
Where the trespasser is of a continuing nature or the trespass has been threatened but not yet committed then the plaintiff may seek an injunction to restrain the trespass or to retrain any further trespass. The general rule is that the plaintiff is prima facie entitled to an injunction in the case of a continuing trespass. This gives rise to difficulty in a case such as Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173 where the present rules enable a plaintiff whose airspace has been invaded to hold a property developer to ransom. Scott J was clearly worried about the practical implications of his judgment, and he concluded by saying that it would be ‘convenient if the Court had power, in order to enable property developments to be expeditiously and economically completed, to allow, on proper commercial terms, some use to be made by the developers of the land of neighbours’. However, he did not think that such a reform was within the competence of the courts, and he was of the opinion that resort would have to be had to Parliament to implement such a reform. On the other hand, it is arguable such a reform is with the competence of the courts, and that it could be achieved by the courts demonstrating a greater willingness to exercise their discretion to award damages in lieu of an injunction.[6]
(Lord Templeman & Pitchfork (Eds.), Obligations: The Law of Tort, pp. 323-324.)
[1] “Mesne profits” are profits of land taken by a tenant in wrongful possession, from the time that the wrongful possession commenced to the time of the trial of an action of ejectment brought against him. (Mozley & Whiteley’s Law Dictionary.)
[2] Grouse is a kind of bird shot for food. Moor is an open wasteland.
[3] Up to the air column.
[4] [1985] 2 All ER 985, at p. 994. This was a case where the police fired into a gunsmith’s shop a canister of CS gas to smoke a young psychopath who had broken into it. There was a fire and the shop was burnt down. The claim was based on trespass, nuisance, strict liability and negligence. The defendant pleaded implied consent, necessity and contributory negligence of the plaintiff.
[5] Syed Ahmad Alsagoff, The Law of Torts in Malaysia and the Syariah, unpublished, pp. 49-59.
[6] In Anchor Brewhouse case, the defendants were developing a prestigious site in London. They hired some cranes. The booms of the cranes hung over into the plaintiffs’ air space. The defendants argued that it was essential for the commercial development. The court, however, decided that the invasion of the booms constituted a trespass and that the plaintiffs were entitle to injunction. In Bernstein, it was held that the plaintiffs’ rights only extended to such a height as was necessary for the enjoyment of their property, and the defendants argued that the booms did not interfere with such rights. The court held that Bernstein was confined to the issue of overflying aircraft, and could not be applied in Anchor Brewhouse where a static structure on the defendants land hung over on to that of the plaintiff.
Occupier’s Liability
Introduction
The liability of occupiers at common law covers the duty owed to four different groups of persons, namely:
(1) those who enter upon a contractual right;
(2) invitees with whom the occupier has some common interest;
(3) licensees who have either the express or implied permission to enter from the occupier, and
(4) towards trespassers.[1]
“Speaking of plaintiff entering premises, the liability of occupiers of such premises to take care exists but depends on the character in which they have entered them. First, we have people who enter them by virtue of a contract, such as guests in a hotel, secondly we have people who entered them on business interest, both to such persons as well as the occupiers, eg 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 either 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 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.”
(Datuk Bandar Kuala Lumpur v. Ong Kok Peng [1993] 3 CLJ 205 (SC).)
Occupier: Who is an ‘occupier’?
An occupier is a person who has a sufficient degree of control over premises.
“Whenever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is a “visitor”.”
(Per Lord Denning in Wheat v. E Lacon and Co Ltd [1966] AC 522)
“There may be more than one “occupier” of the same structure at one time. The test is occupational control i.e. some degree of control associated with and arising from presence in and use of activity in the premises.
In Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [1998] 3 CLJ 893, a fire broke out at the premises of Sri Inai[2], resulting in the deaths of four students and injury to five others. The trial judge held the first defendant/appellant, Sri Inai, and the second defendant, MPPP (Majlis Perbandaran Pulau Pinang)[3] equally to blame. Both appealed against the decision.
Abdul Hamid Mohamed J held that section 3 of the Civil Law Act 1956 provides that the courts shall apply the common law of England and the rules of equity as administered in England on 7 April 1956. On that day the liability of a landlord was that generally, a landlord owes no duty to his tenant or any other person who entered the demised premises during the tenancy. He was under no duty to take care that the premises were safe whether at the commencement of the tenancy or during its continuance, unless it is expressed or implied in the contract. The tenancy transferred all obligations towards third parties from the landlord to the tenant. As a result, MPPP, who are the landlord of the premises, could no longer be regarded as the occupier of the premises and are exempted from any liability for any dangers existing on them. Sri Inai, the tenant was liable on the principle that a teacher owes a duty of care to his students. As the occupier of the premises, it was also liable under occupier’s liability.
In Wheat v E Lacon and Co. Ltd [1966] AC 522, the respondents owned the “Golfers Arms” and used the ground floor as a public house. The manager of the public house, employed by the respondents used the first floor as a private dwelling. The manager’s wife let out the dwelling in summer for private profit. Mr. and Mrs. Wheat were guests at the private dwelling and one night Mr. Wheat fell down the back staircase in the private portion and died.
The trial court held that there were two causes of the incident viz:
(1) The handrail was too short because it did not stretch to the foot of the stairs.
(2) Someone had taken the bulb out of the light at the top of the stairs.
The House of Lords held that the respondents were occupiers of the ground floor having complete control over it and also of the private portion, having a residuary degree of control because they have a right to do repairs. The manager and his wife were also occupiers of the private portion. The respondents owed a duty to see that the structure of the private portion was reasonably safe including the handrail and that the system of lighting was efficient. The respondents did not breach their duty and are thus not liable as no one had any reason to suppose that the handrail was dangerous and since a stranger removed the light shortly before Mr. Wheat went down, the respondents are blameless for the act of a stranger.”[4]
Lord Denning said:
[W]herever a person has a sufficient degree of control over premises that he ought to realize that any failure to use care of his part may result in injury to a person coming lawfully there, then he is an “occupier” and the persons coming there are his “visitors”; and the “occupier” is under a duty to the “visitor” to use reasonable care. 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 it that he has some degree of control. He may share control with others. Two or more may be occupiers. And, whenever this happens, each is under a duty to use care towards persons coming lawfully on the premises, dependent on his degree of control…any degree of control over the state of the premises may be enough (to make a person an occupier).
Lord Denning then divided the law up into four categories:
“1. Where a landlord lets premises by demise[5] the landlord is regarded as having parted with all control over the premises so that the tenant is the occupier.
2. Where a landlord lets part of the building but retains other parts, such as the common staircase, then the landlord remains liable as an occupier for the parts of the building which he has retained.
3. Where a landowner licences a person to occupy his premises on terms which do not amount to a demise and the owner still has the right to enter on to the premises to do repairs then the owner remains sufficiently in control to be the occupier (see Wheat itself).
4. Where the occupier employs independent contractors to do some work on his premises, the owner is generally still sufficiently in control to be an occupier. The difficulty really lies in determining whether or not the independent contractors are also occupiers It should be noted that there is no requirement that control be exclusive, so that there can be more than one occupier at the same time, as in Wheat. Independent contractors were held to be occupiers in AMF International Ltd v Magnet Bowling Ltd [1968] 1 WLR 1028. The plaintiffs’ timber was damaged by rainwater while it was on the first defendants’ premises. The rainwater got in through an unfinished doorway. The plaintiffs only brought the timber on to the land, after the first defendants and the second defendants, who were a firm of independent contractors, had confirmed that the property was ready for installation of the timber. It was held that both defendants were sufficiently in control to be occupiers. …”[6]
Common law duty to contractual entrants
“Where A enters B’s premises under a contract, B’s duty to A depends upon the express terms of the contract. Since this is rarely done, the courts used the device of the implied term.
The law recognized only two [implied] terms:
(1) Where the main purpose of entry was use of the structure in question, the occupier warranted that the structure was as safe as reasonable care and skill could make it.
(2) Where the structure was merely ancillary, the occupier warranted that he had taken reasonable care to see that the structure was reasonably safe.
Common law duty to invitees
In Indermaur v. Dames (1866) LR 1CP 274, a workman employed by a gasfitter went to a sugar refinery to test some gas burners. He fell into an unfenced shaft. It was held that an occupier is required to “use reasonable care to prevent damage from unusual danger which he knows or ought to know …” Will J said (at p. 288):
And with respect of such 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.
In London Graving Dock Co Ltd v. Horton [1951] AC 737, Lord Norman (at p. 751) said:
The occupier has no duty to the invitee unless there is unusual danger which he knew or ought to have known …
Further, Lord Oaksey (at p. 758) said:
An occupier owes no duty to an invitee in respect of “usual” danger since the invitee is only entitled to expect that the invitor [occupier] will take care to prevent damage from “unusual” danger …
The Federal Court in the case of Lau Tin Sye v Yusuf bin Muhammad [1973] 2 MLJ 186 held that the duty of an occupier to an invitee is that the occupier shall use reasonable care to prevent damage from unusual danger that he knows or ought to know.
In Lee Lau & Sons Realty Sdn. Bh, v Tan Yah & Ors [1983] 2 MLJ 51, the appellants operated brick-making factory. They also owned a forklift machine that was under the management of the deceased. During repairs, the forklift collapsed upon the deceased who subsequently dies from his injuries.
The Federal Court held that the invitor’s duty is to protect the invitee against ‘unusual’ risk, a risk that is not usually found in carrying out the task that the invitee has in hand. The onus of proving ‘unusual’ danger, which the invitor knew or ought to have known, rest on the invitee. On the facts, the Court found that the raising of the forklift mechanically and the using of two rubber tree stumps to support the heavy horizontal iron bar did not constitute ‘unusual risk’. They were more ‘incidental or usual’ danger that the deceased could reasonably foresee in the course of his employment. The respondents having not pleaded or proved the existence of such ‘unusual’ danger, the appellants were not liable to the deceased.
In Takong Tabari v Government of Sarawak & Ors [1996] 5 MLJ 435, the deceased was a customer in the premises of the Public Bank, the fourth defendant, when an explosion and fire occurred that caused his death. The explosion was due to a gas leak from a corroded gas pipe in the premises occupied by the bank. The supply of gas in Miri was under the care and management of the Government of Sarawak, the first defendant.
Richard Malanjum J held that the deceased was an invitee. The occupier, the bank, owed a duty to prevent damage or injury to him due to unusual dangers on the premises and it knew or ought to know and which the invitee did not know. The deceased, being a bank customer would not expect to find a dangerous thing like gas in a bank. Thus the danger was unusual to the deceased and unknown to him at the material time. The bank knew or ought to have known of the danger since the smell of gas prevailed in the bank for about a month. Since the bank, through its staff, did not take any reasonable or any reasonably sufficient matters to meet its duty as the occupier towards the deceased, it was liable. The court found that the degree of liability between the first and fourth defendants in the ratio of 90:10.
Common law duty to licensee
There are three groups of licensees:
(1) those entering as of right onto premises open to the public or private premises where this is authorised by law;
(2) those based on implied permission, or
(3) those entering the premises as mere social visitors.
A licensee enters with the express or implied permission of the occupier given as a matter of grace or pleasure and not as a matter of business. He lacks any community of interest with the occupier.
The occupier owes a duty to warn the licensee of any concealed danger or trap that he actually knew or ought to have known. If he knew of the physical facts which constituted the danger and a reasonable man with that knowledge would have appreciated that those facts constituted a trap or a concealed danger, then the occupier had knowledge of the danger even if he himself did not appreciate that they did so.
In Yeap Cheng Hock v Kajima–Taisei Joint Venture [1973] 1 MLJ 230, Syed Agil Barakhbah J held that the occupier owes a duty of care not to create a trap or to allow a concealed danger to exist upon the premises which the occupier knew or ought to know.
In that case, the plaintiff was a geologist working with a mining company. He was one of a party of persons visiting a tunnel under construction by the defendants for the purpose of geological survey and examination of rocks. The defendant’s servants led them into the tunnel. While they were inspecting some rocks, certain machinery under the control and management of the defendants began to operate without any warning. The plaintiff and his party in their fright and excitement attempted to evacuate to a place of safety. After having gone a short distance the train loader suddenly started to move towards them. The lighting in the tunnel was inadequate in the circumstances. As they groped their way forward, the second column of the train loader came towards them. The projection of the wheel of the train loader jammed the left legs of the plaintiff against a rock projection on the tunnel wall causing severe injury of the left leg just below the knee, which was later amputated.
The Court held that the plaintiff was a licensee as they had entered the tunnel site after obtaining permission so to do for their own purposes. The projection in the tunnel was hidden or concealed from the plaintiff. The defendants, who were familiar with the conditions in the tunnel, knew or ought to have known of the concealed danger and were negligent in not warning the plaintiff of the dangers that were known to them.
The Court made a further finding in negligence against the defendants. They put into operation the machinery in the tunnel, in particular the train loader, when the plaintiff and the other visitors were present.
In Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 3 CLJ 205, the plaintiff suffered injuries as a result of falling into a lift shaft in a block of flats. The Supreme Court held that as the plaintiff did not enter the lift on business of common interest with the defendant, he was therefore a licensee.
Peh Swee Chin S.C.J. delivering the judgment of the court (Mohd. Jemuri bin Serjan C.J. (Borneo) & Mohd. Azmi bin Dato’ Hj, Kamaruddin with him) held that 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. A trap is something that sometimes involves “the appearance of safety under circumstances cloaking a reality of danger”. In the instance case, the lift door was partly open. There was no warning sign or barricade of any sort to warn users that t was out of service. There was no lighting and when the plaintiff stepped in, he fell down the shaft. The court held that these features were classic of the appearance of safety under circumstances cloaking a reality of danger.
Peh Swee Chin SCJ said:
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 Investment 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, see Fairman [1923] AC 74. A trap, as stated by Hamilton J in Latham v R Johnson & Nephew Ltd [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 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.[7]
Implied permission
In the case of an implied permission, it is always a question of fact whether the occupier gave his permission. The onus lies on the person who claims that it existed. Thus the law treats a person who enters the occupier’s premises for the purpose of communication with him as having the occupier’s tacit permission unless he knows or ought to know that the occupier forbids him to enter. The occupier’s conduct must show that he permitted entry, not that he merely tolerated it.
Lowery v Walker [1911] AC 10, is an example where the court stretched the permission too far. The public used a short cut across a farmer’s field to a railway station for 35 years. The farmer often interfered with them for doing so but had taken no legal action to stop them because most of them were customers of his milk. One day, whilst the plaintiff was crossing the field, a savage horse owned by the farmer mauled him. The House of Lords held the farmer liable as the public, including the plaintiff, were licensees and not trespassers.
In Edwards v Railway Executive [1952] 2 All ER 430, the plaintiff, a 9 year old boy, went through a fence dividing a railway from a recreation ground, climbed the embankment to fetch a ball on the other side of the railway line when a passing rain injured him. The Court held that although for many years children had been doing this and played sliding down the embankment, there was no evidence of any licence to enter the railway land. The Railway Executive knew of these activities and had repaired the fence whenever he new of damage.
The law in England
The English Law Reform Committee heavily criticized the above distinction and as a result the legislature passed he Occupier’s Liability Act 1957. The Act provides a single ‘common duty of care’ and reduced the classes of entrants to two:
1. Lawful visitors and
2. Trespassers
Visitors include contractual entrants, invitees and licensees and a person may be a visitor in the following ways:
1. By express invitation or permission.
2. Authority of law i.e. persons who enter premises for any purpose in the exercise of a right conferred by law are treated as permitted by the occupier to be there for that purpose, whether they in fact have the permission or not – e.g. firemen, police.
3. By implied permission
The occupier owes a common duty of care to all visitors. The occupier is under a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he invited or permitted him to be there.
Malaysia has made no legislative changes and by virtue of section 3 of the Civil Law Act 1956 the law remains the same as the pre-1957 common law situation. The Occupiers’ Liability Act 1957 has no application in Malaysia.
In Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor [1993] 3 CLJ 205, the Supreme Court warned that cses decided in Britain under the Occupiers Liability Act 1957 would tend to be misleading in Malaysia and ought to be eschewed in favour of pre-1957 cases. However, post-1957 cases that refer to a particular part of the common law that remained intact and unscathed by the Act are referable.
Aspects of Occupier’s Duty to Lawful EntrantsLimits of permission
The occupier’s duty does not extend to places where he warned the entrant not to go or if the entrant makes use of the structure alien to the invitation. The duty extends only to the use of the premises for the purposes for which the occupier invited or permitted him to be there. Thus when you invite a person to your house to use the staircase you do not invite him to slide down the banisters. If he does so, and injures himself the occupier is not liable.[8]
Degree of care in special cases
Special circumstances that are relevant in determining the degree of care and of want of care that an occupier should expect an entrant to exercise include:
1. An occupier must be prepared for children to be less careful than adults.[9]
2. An occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.[10]
Duty to children
Where an object placed upon the occupier’s premises constitutes an allurement, the occupier is liable if it causes injury to a child.
In Glasgow Corporation v Taylor [1922] 1 AC 44, a 7 year old child died from eating poisonous berries that he had picked from a shrub in some public garden under the control of the Corporation. The berries looked like cherries or large blackcurrants and were of a very tempting appearance to children. They thus constituted as allurement to the child. The properly fenced from the public nor was any warning given of its deadly character. The House of Lords held that these facts disclosed a good cause of action.
Glasgow Corporation v Taylor [1922] 1 AC 44 (HL)
Lord Atkinson said:
The liability of defendants in cases of this kind rests, I think, in the last resort upon their knowledge that by their action they may bring children of tender years, unable to take care of themselves, yet inquisitive and easily tempted, into contact, in a place in which they, the children, have a right to be, with things alluring or tempting to them, and possibly in appearance harmless, but which, unknown to them and well known to the defendants, are hurtful or dangerous if meddled with … I think, in the latter case, as much as in the former, the defendant would be bound, by notice or warning or some other adequate method, to protect the children from injury. In this case the averments are that the appellants did nothing of the kind. If that be true they were in my view guilty of negligence, giving the plaintiff a right of action.
If there be no allurement, trap, invitation or dangerous object placed upon the land, the occupier is not liable.
In Latham v Johnson (R) & Nephew Ltd [1913] 1 KB 398, a child was injured whilst playing on a heap of stones. The Court of Appeal held that the child had no remedy. It is a normal use of land to deposit stones on it.
A trap involves the idea of concealment and surprise, of an appearance of safety under circumstances cloaking a reality of danger.
Therefore an occupier will not be liable where:
1. The thing may be so innocuous in itself as not to be a trap, for example, a hole in the ground or a sound, stationary vehicle;
2. Even if it may be a trap to begin with, it may cease to be one because it is reasonably well protected;
3. The danger is obvious even to the child injured by it; and
4. Adequate warning has been given to children to keep away from it.
In Liddle v Yorkshire (North Riding) CC [1934] All ER 222, a boy aged 7 climbed up a heap of sand left against a wall and sat on the wall. While trying to show to his companions how bees flew, he fell back and suffered injuries. The Court of Appeal held that the danger of falling off the wall was obvious to the child and that the workmen had previously warned off the child. The defendants were not liable.
In the case of very young children, there is scarcely anything that may not prove a danger to them. The Court Of Appeal in Bates v Stone Parish Council [1954] 3 All ER 38 relied on the concept of conditional licence i.e. that the child shall only enter if accompanied by a person in charge capable of seeing and avoiding perils. It thus places both the person and his charge in the position of an ordinary licensee both able and bound to look after them. This approach raises many difficulties.
In Phipps v Rochester Corporation [1955] 1 All ER 129, the court refused to hold that the plaintiff’s licence was subject to the condition that some responsible person must accompany him. In formulating the duty of the licensor, the habits of prudent parents in relation to little children should be taken into account.
In that case, the plaintiff, a boy aged five, was out picking blackberries with his sister, aged seven. The defendants could assume that parents would behave in this way and therefore, although the plaintiff was a licensee, the defendants were not in breach of their duty to him. The court puts the primary responsibility for small children squarely on the shoulders of parent.
Phipps v Rochester Corporation [1955] 2 WLR 23
To a young child, the trench was a concealed danger, but his claim failed as the defendants had not been in breach of their duty towards him.
Devlin J:
[T]he responsibility for the safety of little children must rest primarily upon the parents; it is their duty to see that such children are not allowed to wander about by themselves, or at least to satisfy themselves that the places to which they do allow their children to go unaccompanied are safe for them to go to. It would not be socially desirable if parents were, as a matter of course, able to shift the burden of looking after their children from their own shoulders to those of persons who happen to have accessible bits of land. Different consideration may well apply to public parks or to recognised playing grounds where parents allow their children to go unaccompanied in the reasonable belief that they are safe.
Under the Occupiers’ Liability Act 1957 whether the occupier has fulfilled his common duty of care, regard is as to he held to “all the circumstances of the case”. Where children are concerned it is provided that an occupier must be prepared or children to be less careful than adults. One of the circumstances that must be taken into account in measuring the occupier’s obligation is the degree of care for their children’s safety that the occupier may assume the parents will exercise.
Winfield submits that the law is still as it was stated before the Act. Thus the law in Malaysia and England on this point remains the same.
Duty to independent contractor
In Bates v Parker [1953] 1 All ER 768, the Court of Appeal held that an independent contractor who do work, be it of cleaning or repairing the premises, must satisfy himself as to the safety or condition of that part of the premises on which he is to work. The occupier can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect.
In Roles v Nathan [1963] 2 All ER 908, two chimney sweeps died of carbon monoxide gas while attempting to seal up a “sweep hole” in the chimney of a coke-fired boiler. They worked while the boiler was alight. The Court of Appeal held that the occupier was not liable. The chimney sweeps ought to have known that there might be dangerous fumes about and ought to have taken steps to guard against them. They should not have attempted to seal up the hole whilst the fire was still alight.
However, if the staircase to the cellar where the boiler is kept gave way, the occupier would be liable for that would not be a special risk ordinarily incidental to the calling of a sweep.
Warning
Where an occupier warns an entrant of a danger and the person nevertheless suffers damage from that, the occupier is not liable. In London Graving Dock Co. Ltd v Horton [1951] AC 737, the House of Lords held that if an invitee suffers injury caused by defective or dangerous condition of the premises due to the occupier’s fault, he will not succeed if he knew of the danger or had been warned of it.
Therefore if a bridge is rotten, and the occupier puts up a notice “This bridge is dangerous” he is not liable even though it was the only way in or out and the visitor had no option but to go over the bridge.
This decision is no longer good law in England by virtue of the statutory provision that he warning does not absolve the occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. The occupier will be liable in the above situation. However he will escape liability if there are 2 bridges, one rotten and the other safe 100 yards away, by putting up a notice “Do not use this footbridge. It is dangerous. There is a safer one further upstream”. Such a warning is sufficient because it does enable the visitor to be reasonably safe.
In Roles v Nathan [1963] 2 All ER 908, an expert called by the occupier warned the chimney sweeps that the boiler room was dangerous through fumes and that they should seal the sweep-hole and inspection chambers before lighting the boiler. The Court held that the warnings were enough to enable them to be reasonably safe. The sweeps would have been quite safe if they had needed these warnings. It was entirely their own fault that they did not.
Liability for the work of an independent contractor
In Thomas v Cremin [1953] 2 All ER 1185, the House of Lords held that generally an occupier is liable to his invitee for damage due to the shortcomings of an independent contractor employed by him. This decision departs from previous decisions that held the occupier not liable if he acted reasonably.
In Haseldine v Daw (C.A.) & Sons Ltd [1941] 3 All ER 156, the defendants employed a firm of engineers to repair a lift in a block of flats belonging to them. The day after, whilst the plaintiff was using it to visit a tenant at the said block the lift fell and injured the plaintiff. The Court of Appeal found the engineers negligent but held that the defendant was no liable to the plaintiff because he had a right to rely on the work and reports of the experts he employed and there was no contemplation to examine their work after completion.
In Woodward v Mayor of Hastings [1954] KB 174, a pupil at a school suffered injury when he fell on an icy step that a cleaner had negligently left in a dangerous condition. The Court of Appeal held the defendant liable since in this case, unlike the maintenance and repair of a lift in Haseldine v Daw (C.A) & Sons Ltd, the occupier does not need any technical knowledge.
The Occupier’s Liability Act 1957 reversed the decision of the House of Lords and provides that where a visitor suffers damage due to the faulty execution of any work of construction, maintenance or repair done by an independent contractor, the occupier is not liable if he had acted reasonably. The court will consider whether it was reasonable for him to entrust the work to an independent contractor and whether he had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done. Therefore the occupier must take reasonable steps and satisfy himself that the contractor he employs is competent and if the character of the work permits, he must take similar steps to see that he did the work properly.
Since the Occupiers Liability Act 1957 does not apply in Malaysia, the decision of the House of Lords in Thomas v Cremin [1953] 2 All ER 1185 remains the law in Malaysia.
Volenti non fit injuria
This defence is available to the occupier. An occupier my discharge his duty merely by warning the entrant of the danger and owes no duty if the entrant willingly accepted the risk.
Contributory negligence
Where the occupier is in breach of his duty of care and the visitor is at the same time careless of his own safety the court will apportion damages in accordance with section 12 of the Civil Law Act 1956.[11]
Exclusion of occupier’s duty
The occupier may also exclude his liability for negligence. In Ashdown v Williams (Samuel) & Sons Ltd [1957] 1 All ER 35, the plaintiff was a licensee on the defendant’s land. A negligently driven railway truck knocked her down. The defendant had posted notices that persons entered at their own risk and that they should have no claim against the defendants for any injury whatsoever. The Court of Appeal found that the defendant had taken reasonable steps to bring the conditions contained in the notice to the plaintiff’s attention and therefore had effectively excluded that liability.
Section 2 (1) of the Occupier’s Liability Act 1957 confirmed the above decision., which was made shortly before the Act came into force and the Court of Appeal subsequently followed it in White v Blackmore [1972] 3 All ER 158. Under section 2 (1), the occupier may restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. The exclusion may concern the static condition of the structure or the current activity on the structure.
The Unfair Contract Terms Act 1977 of England severely curtailed this freedom to exclude in cases of business occupiers. Under section 2 (1) of the Act, a person cannot by reference to any contract term or to a notice exclude or restrict his liability for death or personal injury resulting from negligence. Under section 2(2), in the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirements of reasonableness.
The Unfair Contract Terms Act 1977 does not apply in Malaysia.
Duty to Trespassers
In Lembaga Letrik Negara, Malaysia v Ramakrishnan [1982] 2 MLJ 128, the Federal Court held that an occupier only owes a duty to trespassers when he knows of facts that show a substantial chance that they may come to a place where there is a danger that he has created or knows about. In such a case, the occupier discharges that duty by taking such steps in accordance with the dictates of common humanity and in the light of his own circumstances and final limitations.
In that case, the ten-year-old respondent climbed up an H-pole erected and maintained by the appellants in an attempt to release a bird trapped on the wire of the pole. Upon reaching the bracket or cross-arm supporting the cable box that was about 7 feet from the ground, he was electrocuted and thrown to the ground thus suffering severe injuries.
The trial judge held the appellant liable on the basis that it was a straightforward case of negligence based on the Donoghue v Stevenson principle. This follows the trend in Australia where there is a tendency to recognize that the limited duty owed by an occupier towards a trespasser can co-exist with the wider general duty of care.
The Federal Court (Raja Azlan Shah C.J. (Malaya), Abdul Hamid F.J. & Aboolcader J.) held that the respondent was a trespasser and that the limited occupier trespasser duty and the general duty of care under ordinary negligence are two separate duties and cannot co- exist. The occupier’s duty to trespassers is lower than the ordinary duty of reasonable care in negligence. The duty depends on what the defendant knew, as distinct from what he ought reasonably to have known. The test is thus subjective.
The occupier owes a duty if:
1. He actually knew of the trespasser’s presence or at least of facts which rendered his presence substantially likely; and
2. He actually knew facts relating to the condition of the land or the activities on it, which would be likely to cause personal injury to such trespasser who was unaware of the danger.
What the occupier must do to discharge the humanity duty varies with his personal circumstances and capacity to deal with the danger, viz., his knowledge, ability and resources. In the above case, the Federal Court found that the appellants owed a duty to the respondent because they had erected, maintained and controlled the highly dangerous H-pole immediately adjacent to a public footpath used by the kampong [village] folks and ideally suited for children wishing to climb it. What the appellants must do to fulfil that duty depends on:
1. The seriousness of the danger;
2. The degree of likelihood of trespassers coming; and
3. The degree of hidden or unexpected danger that the trespassers may be expose to.
More weight is to be given to these factors if the trespassers are likely to be children. What the appellants should do depends also on their financial and other limitations. What is important is that they must act in a humane manner.
On the facts of the case, the Federal Court found that the appellants knew of facts that would lead a humane and sensible man to take such steps, for example, putting up warning signs and adequate anti-climbing devices to prevent the accident that happened. They had not so acted and were in breach of the duty they owed to the respondent.
The Occupier’s Liability Act 1957 did not affect the duty of an occupier to a trespasser in England. In British Railways Board v Herrington [1972] 1 All ER 87, the House of Lords held that the rule that the duty owed by an occupier to a trespasser was only not to inflict damage intentionally or recklessly was obsolete due to social changes. The correct level of duty owed to a trespasser is whether the occupier acted in accordance with the dictates of common humanity or according to common standards of civilized behaviour.
In that case, the defendants owned an electrified railway line. They knew that the fences on both sides of the line were in a dilapidated condition and that children from the adjoining meadow played on the line. [Some weeks before the defendants had been told of the presence of children on the line.] The six-year-old plaintiff walked over the broken fence, trespassed onto the railway track, came into contact with the live line and suffered serious injuries. The House of Lords unanimously held the defendants liable. [The defendant appellants owed the plaintiff respondent a duty of common humanity and though he was a trespasser, he was entitled to recover damages.]
British Railway Board v Herrington [1972] 2 WLR 537 (HL)
Lord Reid said:
So the question whether an occupier is liable in respect of an accident to a trespasser or his land would depend on whether a conscientious humane man with his knowledge, skill and resources could reasonably have been expected to have done or refrained from doing before the accident something which would have avoided it. If he knew before the accident that there was a substantial probability that trespassers would come, I think that most people would regard as culpable failure to give any thought to their safety. He might often reasonably think, weighing the seriousness of the danger and the degree of likelihood of trespassers coming against the burden he would have to incur in preventing their entry or making his premises safe, or curtailing his own activities on his land, that he could not fairly be expected to do anything. But, if he could at small trouble and expense take some effective action, again I think that most people would think it inhumane and culpable not to do that. If some such principle is adopted, there will no longer be any need to strive to imply a fictitious licence. It would follow that an impecunious occupier with little assistance at hand would often be excused from doing something which a large organization with ample staff would be expected to do.
Lord Morris of Borth-y-Gest in his speech said:
The duty that lay on the appellants was a limited one. There was no duty to ensure that no trespasser could enter on the land. And, certainly, an occupier owes no duty to make his land ft for trespassers to trespass in. Nor need he make sur