Occupiers’ Liability in Singapore
Occupiers’ liability is a legal rule Singapore inherited from English common law. This rule has since undergone radical change, as a result of the decision by the Singapore Court of Appeal, in the 2013 landmark case, See Toh Siew Kee v Ho Ah Lam Ferrocement Pte Ltd (“See Toh“).
Who is an Occupier?
An occupier is a person who has some degree of control over the particular premises. This control usually includes some influence over the state of the premises, and the power of permitting or prohibiting entry by other persons.
As an example, an HDB flat owner may be regarded as the occupier of the flat.
The Old Rule as to Occupiers’ Liability
It used to be that dual concurrent responsibilities were imposed on an occupier of premises. These responsibilities were provided for in 2 separate areas of law:
- The tort of negligence
- Occupiers’ liability.
The law as to occupiers’ liability differentiated between 3 types of entrants: invitees, licensees, and trespassers.
The occupier owed varying standards of care to these 3 different entrants. Invitees were owed the highest duty of care, followed by licensees and trespassers.
The New Rule as to Occupiers’ Liability
The Court of Appeal in See Toh saw the fault in the seemingly arbitrary and cumbersome distinctions between the 3 types of entrants.
Accordingly, it found that the time was ripe to reform and subsume the doctrine of occupiers’ liability into the law of negligence. In doing so, the court stated that:
“… modern conditions require a modern tort of negligence which subsumes within it the law on occupiers’ liability”.
In Singapore, the decision in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency (“Spandeck“) is definitive on the law of negligence. The test as to whether a duty of care was owed by the plaintiff to the defendant, as established in Spandeck, depended on 3 elements:
- Factual foreseeability;
- Legal proximity between the parties, in the form of physical, circumstantial, or causal proximity; and
- Public policy considerations.
As a result of the judgment in See Toh, the Court of Appeal ruled that the Spandeck test on the duty of care is comprehensive and would be applied to future cases of liability involving occupiers. It appears that occupiers’ liability is now a subset of the law of negligence.
When would Occupiers be Liable under the New Rule?
The Court of Appeal in See Toh laid down the following principles on how the Spandeck test for negligence would apply to occupiers:
The test for factual foreseeability was met in the case of occupiers as it would be foreseeable that entrants would suffer damage if occupiers did not take reasonable care to eliminate danger.
There was undoubtedly physical proximity between an occupier and an entrant merely by virtue of the fact that the entrant was physically situated on the occupier’s property. In so far as lawful entrants were concerned, circumstantial proximity was tautologically present in the occupier-lawful entrant relationship because the hallmark of a lawful entrant’s presence on an occupier’s premises was consent to his presence on the part of the occupier.
Therefore, the vast majority of occupiers having control of the property which they occupied and/or the activities carried out there de jure owed a prima facie duty of care to lawful entrants.
Occupiers were not to be viewed as insurers of the safety of their property; their duty was merely to exercise reasonable care.
Should occupiers be responsible for harm suffered by trespassers on their property?
Trespassers were a residual class of persons who did not have any legal justification for being on an occupier’s premises, and was an unsatisfactory protean term covering both the wicked and the innocent.
It was impossible to hold that occupiers de jure owed a blanket duty of care to all trespassers. Whether or not a prima facie duty of care arose vis-à-vis a residual entrant had to depend on all circumstances of the case. The key was culpability on the part of the entrant.
Accordingly, the court would ask whether a particular entrant’s circumstances of entry were lawful. If they were lawful, a prima facie duty of care arose because sufficient legal proximity had to, by definition, be present. The court need not apply the other steps in the Spandeck test to determine whether the occupier owed the entrant a duty of care.
However, where the circumstances of entry were unlawful, the court will apply the Spandeck test to the facts of the case to decide whether the occupier owed the entrant such a duty of care. In other words:
- Whether it was foreseeable that the entrant would have suffered harm while on the occupier’s premises;
- Whether there was sufficient legal proximity between occupier and entrant; and
- Whether there are any policy considerations that ought to apply to negate the duty of care.
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