APRIL 2011 – PART C

The first issue in situation is whether VeryThe Hotel can be held liable for Rizzo’s injury or not.

In Malaysia, the law on occupier’s liability is based on the common law principles.
Briefly, an occupier’s liability arises in a situation where the premises are not as safe as it
should reasonably be, causing injury or damage to the occupants. An ‘occupier’ is the person
who has control over the premises. The test of occupation is whether a person has some
degree of control with occupation with and arising from, his presence in and use of, or his
activity in the premises.

The highest degree of care required of the occupiers is owed to contractual entrants.
Contractual entrants were those who entered in pursuance of a contract with the occupier.
These were people who had paid to use the occupier’s premises. There are two types; main
purpose entrant and ancillary purpose entrant. An ancillary purpose entrant refers to a person
who has paid to be on the premises for the primary purpose of some activity other than as a
personal dwelling, such as patron at a cinema. The occupier’s duty is to ensure that the
premises are safe for that particular purpose. In Gillmore v London County Council, the plaintiff
had slipped while playing handball in a public hall as the floor was slippery. She successfully
claimed against the defendant for the latter’s failure to ensure that the floor was suitable for
physical exercises.

In VeryThe Hotel’s situation with Rizzo, Rizzo was a guest for the wedding held at the
hotel’s ballroom. She, along with her husband, had paid to enter the premise, making her a
contractual entrant. As the result of slipping on the floor, she had injured her back. There was
no notice informing the public of the cleaning progress commissioned by the hotel. Here,
VeryThe Hotel had failed to take reasonable care ensuring its premise’s safety owed to Rizzo,
similar to Gilmore’s case.

To conclude, VeryTheHotel had the duty to ensure Rizzo’s safety as she attended a
wedding held at the hotel, thus they can be held liable for Rizzo’s back injury.

The second issue is whether Alotta Parking Bhd and VeryThe Hotel can be held liable for the
damage to Hans’s car or not.

An occupier may raise the defence of volenti non fit injuria or that he has put a sufficient
notice or warning. Notices may be in the form of a warning, or an exclusion clause. A clear
and valid exclusion clause is a complete defence. In Ashdown v William Samuels & Sons Ltd,
the court held that an exclusion clause may be raised as a complete defence if the clause is
clear and sufficient. In this case, the plaintiff took a shortcut across the defendant’s land and
was subsequently injured. Adequate notices of the danger on the defendant’s land were put
up. As they were clear and sufficient, the defendant’s liability was exempted.

In this particular dispute, Alotta Parking Bhd had placed a notice next to the automated
machine. It read, “The company and the hotel proprietor will not be liable for any loss or
damage howsoever caused to cars parked in the basement”. However, Hans had merely
glanced at it. The notice was in the clear form of an exclusion clause and can be brought to
attention easily, hence it was clear to exempt liability on the hotel and Alotta Parking Bhd as
in the Ashdown’s case.
 To conclude, Alotta Parking Bhd and VeryThe Hotel cannot be held liable for the
damage caused to Hans’s car as the exclusion clause put up next to the machine can be
raised as a complete defence.

The third issue is whether Alotta Parking Bhd and VeryThe Hotel can be held liable
for Amir’s injuries despite him being a child trespasser.

Generally, an occupier must accept that children are less careful as compared to
adults. The safety of children to a large extent lies on their parents and therefore an occupier
has the right to question this responsibility or lack of it, if the warnings given by him are
considered sufficient. However, an occupier has a duty not to have on his land objects that
are dangerous but are also an allurement or invitation to children. In Sinuri bin Tubar & Anor
v Syarikat East Johore Sawmills Sdn Bhd, the defendant operated a sawmill which had a
functioning bathroom. The plaintiff (child) went into the compound and bathed in the bathroom
as his village had no piped water. On his way home later, his arm was trapped under the logs,
causing it to be amputated. The court held that for an object to be an allurement, it depends
on the circumstances of each case. In this case, timber logs in a private yard was not an
allurement. Although it might be argued that the bathroom constituted as an allurement, on
the facts, the sawmill owner had erected a fence separating their sawmill from the village and
posted a guard at the sawmill’s entrance.

In this situation, when Amir, an eleven-year-old boy, had attempted to open Hans’s car
door, an incomplete brick wall had fallen on him. On facts, Hans’s car, a sports one, was
parked in the basement. The basement could not possibly be alluring to a child but it may be
argued that Hans’s sports car was an allurement. However, since the occupiers, Alotta Parking
Bhd and VeryThe Hotel, had anticipated the presence of trespassers, they had taken
precautions by posting security guards at the basement, similar to Sinuri’s case. They had
caught Amir and warned him against trespassing the hotel premises on several occasions.
Thus it can be inferred that Amir’s father should have been more responsible towards his son.

To conclude, Alotta Parking Bhd and VeryThe Hotel cannot be held liable for Amir’s
injuries as they had exercised reasonable care towards trespassers including children ones.