Datuk Bandar Dewan Bandaraya Kuala Lumpur v.

Ong Kok Peng & Anor.

DATUK BANDAR DEWAN BANDARAYA a barricade of any kind. This was created by
KUALA LUMPUR such an extra hazardous act or omission in-
volving special danger to users of that lift that
v. the appellant could not escape liabilty for the
ONG KOK PENG & ANOR. injuries caused to the respondent.
[3] The maintenance of the lift was a statu-
SUPREME COURT, KUALA LUMPUR tory duty imposed on the appellant by the
DATUK MOHD JEMURI BIN SERJAN CJ b
Factory and Machinery Act 1967 and the
(BORNEO), TAN SRI DATO’ HJ. MOHD appellant could not escape liability by del-
AZMI BIN DATO’ HJ. KAMARUDDIN egating it to the third party.
& DATO’ PEH SWEE CHIN SCJJ
[SUPREME COURT APPEAL NO. [4] The failure of the third party to erect any
02-47-1992] warning signs in respect of the defective lift
5 APRIL 1993 c was in breach of the contractual obligations to
erect such warning signs under clause 4 of the
TORT: Occupiers or owners liability for dan- maintenance agreement and as the third party
gerous premises at common law - Standard of had expressly agreed under clause 14 of the
duty of care owed to licensee - Accident caused
agreement to indemnify the appellant for
by falling down lift shaft - Lift to be maintained
by independent contractor - Whether owner or damages for accidents at common law, the
independent contractor liable for damages. appellant was clearly entitled to indemnity
d from the third party in respect of the damages
The respondent had suffered severe injuries payable by the appellant to the respondent.
as a result of falling into a lift shaft in a block [5] The third party was also negligent in
of flats owned by the appellant. The respon- respect of the failure in erecting such warning
dent had steped into the lift shaft on seeing signs, before the date of the accident, from the
the lift door partly open, there being no warn- moment it came to know or ought to have
ing sign or barricade of any sort placed at the known of the trap or hidden danger created by
e
lift door to indicate that the lift was not in the defective lift.
service.
[Judgment given in favour of respondent
The maintenance of the lifts was covered by a confirmed. Judgment and costs in favour of
maintenance agreement between the appel- third party reversed and judgment with costs
lant and the third party and the appellant entered against third party in favour of
sought an indemnity from the third party for appellants].
damages awarded to the respondent. The trial f
Judge gave judgment against the appellant [Bahasa Malaysia Translation of Headnote]
and dismissed the appellant’s claim against
the third party holding that the respondent TORT: Liabiliti penghuni-penghuni atau
pemunya-pemunya bagi premis merbahaya
was an invitee of the appellant and as such the pada undang-undang common - Standard
appellant owed a duty of care to the kewajipan berjaga-jaga yang patut diberikan
respondent. g kepada pemegang lesen - Kemalangan berlaku
kerana jatuh ke dalam lubang lif - Lif
On appeal the determination of the Court was
sepatutnya diselenggara oleh kontraktor bebas
sought on the standard of care owed to a - Sama ada pemunya atau kontraktor bebas
licensee. bertanggungjawab bagi kerugian.
Held: Responden telah mengalami kecederaan yang
[1] A licensee must take the premises as he teruk akibat terjatuh ke dalam lubang lif
finds them and the duty owed is not to expose h
dalam satu blok rumah pangsa yang dimiliki
him to hidden perils and to warn him of oleh perayu. Responden telah menjejakkan
existing traps or concealed danger. kaki ke dalam lubang lif apabila melihat
[2] The respondent fell through a lift door pintu lif terbuka sedikit dan tiada terdapat
which was partly open and there was no apa-apa amaran atau apa-apa bentuk
warning of any kind about the danger as the penghalang diletakkan di pintu lif untuk
lift was out of order and neither was there any i menunjukkan bahawa lif tidak boleh
digunakan.
 Current Law Journal
206 August 1993 [1993] 3 CLJ

Penyelengaraan lif termaktub dalam perjan- a berhubung dengan gantirugi yang kena
jian penyelenggaraan yang dibuat di antara dibayar oleh perayu kepada responden.
perayu dan pihak ketiga dan perayu memohon
[5] Pihak ketiga juga cuai berhubung dengan
suatu tanggung rugi daripada pihak ketiga
kegagalan dalam meletakkan tanda amaran
untuk gantirugi yang diawadkan kepada
yang sedemikian, sebelum tarikh kemalangan
responden. Hakim perbicaraan memberikan
tersebut, mulai dari saat ia diketahui atau
penghakiman menentang perayu dan menolak
b mengetahui akan perangkap atau bahaya
tuntutan perayu terhadap pihak ketiga
tersembunyi yang disebabkan oleh lif yang
dengan memutuskan bahawa responden ialah
rosak.
seorang yang dijemput oleh perayu dan oleh
yang demikian perayu mempunyai kewajipan [Penghakiman yang diberikan memihak
berjaga-jaga kepada responden. kepada responden disahkan. Penghakiman
dan kos yang memihak kepada pihak ketiga
Atas rayuan, keputusan Mahkamah telah
c dibatalkan dan penghakiman dengan kos
dipohon ke atas standard berjaga-jaga yang
dicatatkan terhadap pihak ketiga memihak
patut diberikan kepada seorang pemegang
kepada perayu].
lesen.
Diputuskan: Cases referred to:
Fairman v. Perpetual Building Society [1923] AC
[1] Seorang pemegang lesen mestilah
74 (refd)
mengambil premis sebagaimana yang didapati Latham v. Johnson [1913] 1 KB 399 (refd)
olehnya dan kewajipan yang patut diberikan d Bower v. Peat [1876] 1 QBD 321 (refd)
ialah untuk tidak mendedahkannya kepada Tarry v. Ashton [1876] 1 QBD 314 (refd)
bahaya yang tersembunyi dan memberi Wilsons & Clyde Coal Co. v. English [1930] AC
amaran mengenai perangkap-perangkap yang 57 (refd)
ada atau bahaya tersembunyi. Salsbury v. Woodland [1970] 1 QB 324 (refd)
Honeywill Stein Ltd. v. Larkin Brothers Ltd. [1934]
[2] Responden telah jatuh melalui lubang lif 1 KB 191 (refd)
yang terbuka sedikit dan tiada apa-apa jua e Legislation referred to:
amaran atau pun apa-apa bentuk halangan
Factory and Machinery Act 1967, ss. 14, 15
mengenai bahaya bahawa lif tidak boleh and 21
dipakai. Ini adalah disebabkan oleh tindakan Occupier’s Liability Act 1957 (UK)
kemudaratan atau peninggalan yang
melibatkan bahaya khas kepada pengguna- For the appellant - Zainur bin Zakaria; M/s. Zainur
pengguna lif tersebut di mana perayu tidak Zakaria & Co.
boleh lari daripada liabiliti bagi kecederaan f For the first respondent - R.K. Nathan; M/s. R.K.
Nathan & Co.
yang disebabkan kepada responden.
For the second respondent - Dulip Singh; M/s. Dulip
[3] Penyelenggaraan lif adalah suatu Singh & Co.
kewajipan statutori yang dikenakan ke atas
JUDGMENT
perayu oleh Akta Perkilangan dan Jentera
1967 dan perayu tidak boleh lari daripada Peh Swee Chin SCJ:
liabiliti dengan memindahkannya kepada g The High Court has earlier at the first instance
pihak ketiga. given judgment against the defendant by al-
[4] Kegagalan pihak ketiga untuk lowing the claim of plaintiff against the defen-
meletakkan apa-apa tanda amaran berhubung dant and dismissing the defendant’s claim
dengan lif yang rosak tersebut adalah against the third party. On appeal to us against
melanggar obligasi kontraktual untuk the said judgment, we have allowed the appeal
meletakkan tanda amaran yang sedemikian h of the defendant to the extent that the judg-
di bawah fasal 4 perjanjian penyelenggaraan ment and costs given by the High Court in
dan memandangkan pihak ketiga dengan jelas favour of the plaintiff be confirmed but that the
bersetuju di bawah fasal 14 perjanjian terse- judgment and costs given by the High Court in
but untuk menanggung rugi perayu bagi favour of the third party be reversed by enter-
gantirugi untuk kemalangan pada undang- ing judgment with costs in favour of the defen-
undang common, perayu adalah jelas berhak dant against the third party instead. We indi-
kepada tanggung rugi daripada pihak ketiga i cated we would give our reasons in writing and
we now hereby do so.
 Datuk Bandar Dewan Bandaraya Kuala Lumpur v.
Ong Kok Peng & Anor.
[1993] 3 CLJ Peh Swee Chin SCJ 207

This case concerns one of those lift accidents, a The lifts, as far as all the parties herein were
which have been on the increase with usually concerned were under the control and manage-
serious injuries to persons involved, brought ment of and to be maintained by the defendant
about by a very notable change of lifestyle at the cost of the defendant.
caused by shortage of town land, and hefty
Further the third party agreed to carry out its
increase of urban population leading to mush-
work “according to a reasonable working capa-
rooming of construction of high-rise blocks of
b bility...” the wording is clumsy and not quite
flats and similar structures incorporating lifts
English, but the meaning is clear enough, that
for the use of such flat-dwellers.
is, reasonable skill. The third party further
The facts could be summarized as follows. agreed to arrange for insurance for, among
other things, damages “under the Common
At about 6.00 a.m. on 29 April 1980, the plain-
Law ...” for accidents arising out of the work in
tiff, a taxi driver wanted to collect some keys
connection with the agreement and if the third
from a friend living at Block B, Pekeliling Flats c party failed to do so, such damages etc. could be
at Jalan Pekeliling, Kuala Lumpur, the latter
recovered from the third party itself by the
apparently a tenant at the Pekeliling Flats
defendant.
which together with lifts inside them were
owned by the Dewan Bandaraya, Kuala Further, clause 4 of the maintenance agree-
Lumpur of which the defendant was its Datuk ment, stated:- “whenever there is a lift break-
Bandar. He wanted to use the lift and pressed down and which the contractor is examining or
the lift button. He tried all the three lifts there d maintaining or undertaking any other work,
on the ground floor but no lift came after about the contractor must display at every landing
5 minutes. He then decided to walk up the door of the lift, a notice or a cordon or a
staircase and found every lift door closed on reasonable signboard indicating that the par-
1st, 2nd, 3rd and 4th floors. On reaching the ticular lift is out of order”.
5th floor, he saw a lift door open partly for
It was not disputed that an officer from Jabatan
about one foot wide. There were lights at the
e Kilang and Jentera, Kuala Lumpur had on 10
staircase but none at that lift about 12 feet
October 1979 written a warning letter to the
away from the staircase and it was bright
defendant pointing out the defects of all the
enough to see the lift door. He opened the lift
three lifts there, which were required to be
door and stepped in and fell straight down the
rectified by replacements of defective parts
shaft, there was no lift inside the door.
with new parts, including all landing doors of
There was no warning sign of any sort or any all lifts, all within 6 months, failing which the
guard or barricade put up then at the lift door f defendant would not be allowed to operate the
about the lift being out of order. lifts anymore.
The plaintiff was badly injured and at the trial The “local orders” for the defects were received
all parties agreed on the damages being fixed quite late by the third party, but at any rate
at RM30,000 at the outset of trial subject to before the date of accident on 29 April 1980, by
proof of liability. then, also 6 months after the Inspector of
g Machinery’s letter aforesaid.
In respect of the particular lift, it was covered
by an agreement for maintenance of lifts in The learned trial Judge gave judgment for the
Pekeliling Flats made between the defendant plaintiff against the defendant but dismissed
and the third party for a period during which the claim for indemnity against the third party,
the accident took place. Under the agreement, holding, as his Lordship apparently agreed
the 3rd party was paid RM180 per month for with Counsel’s submission, that the plaintiff
maintaining each of the lifts, and it emerged in h was an invitee of the defendant and that the
evidence that in case of major repairs or re- defendant owed a duty of care to him and
placement of parts costing more than RM300 briefly put, in regard to the third party, the
(as involved in the instant case), the third defendant failed to give approval (that is, the
party had to submit quotations to the Dewan local orders aforesaid) promptly or early
Bandaraya and “local orders” had to be given despite the letter from the Inspector of
by the defendant before such work could be Machinery aforesaid, and it was only on 21
commenced. i April 1980 that the “local orders” or
 Current Law Journal
208 August 1993 [1993] 3 CLJ

instructions to proceed reached the third a The plaintiff entered the lift not at all on
party who should therefore not be blamed. business of common interest to the Datuk
Bandar, viz. the defendant and to himself, but
While we agreed with the judgment against the
definitely with implied permission from the
defendant in favour of the plaintiff, we were
defendant. It must be borne in mind that he
unable to agree with the judgment in favour of
was injured at the lift or rather in the shaft of
the third party against the defendant.
the lift, the lift being under the occupation or
The instant case belongs to the realm of liabil- b possession legally of the defendant, maintained
ity of occupier or owner for dangerous premises or controlled by the defendant for the benefit of
at common law. For better understanding the the tenants of the flats there, who when using
position, we use the expression, “occupier” the lifts, were invitees of the defendant, the
hereinafter. plaintiff was a licensee of the defendant, at the
lift and its immediate vicinity. Thus a lodger
It is important to point out immediately that staying with a tenant was held to be an invitee
the common law as regards the liability of c
of the tenant but a licensee of the landlord in
occupier of dangerous premises (including land, Fairman v. Perpetual Building Society [1923]
buildings and structures) still applies wholly AC 74.
to Malaysia but much of it has been modified in
Britain’s Occupier’s Liability Act 1957, which What then is the standard of such duty of care
was intended to improve and modify the com- owed to a licensee? A licensee must take the
mon law, e.g. and inter alia by abolishing the premises as he finds them, and the duty owed
d
distinction between an invitee and a licensee. is not to expose him to hidden perils, and to
Cases decided in Britain under the Occupier’s warn him of existing traps or concealed dan-
Liability Act, 1957 therefore since its enforce- ger, Fairman supra. A trap, as stated by
ment in Britain, would tend to be misleading in Hamilton, LJ in Latham v. Johnson [1913] 1
Malaysia and ought to be eschewed in favour of KB 399 is something which sometimes in-
pre-1957 cases there for our use and reference. volves “the appearance of safety under circum-
e stances cloaking a reality of danger”.
In this judgment therefore, we would mainly
rely on such pre-1957 cases unless when it is in The lift door was partly open or ajar for about
order to resort to post-1957 cases when a 1 foot. There was no warning of any kind about
particular part of the common law has re- the danger as the lift was out of order, neither
mained intact and unscathed. was there any barricade of any kind. There was
even no light just outside the lift door, there
Speaking of plaintiffs entering premises, the was no lift inside and the plaintiff could have
liability of occupiers of such premises to take f
also stepped into eternity (pardon our meta-
care exists but it depends on the character in phor), the features in the instant were classic
which they have entered them. First, we have of the appearance of safety under circum-
people who enter them by virtue of a contract, stances cloaking a reality of danger.
such as a guest in a hotel, secondly we have
people who enter them on business of interest, If the independent contractor, that is, the third
both to such persons as well as the occupiers, party in this case was not involved, then there
g
e.g. a customer going into a shop to view the could not be the slightest doubt that the Datuk
goods, they are the invitees; thirdly we have Bandar, i.e. the defendant was liable. However
persons who enter them with the express or it was repeatedly submitted that the defen-
implied permission of the occupiers, without dant was not liable for default or negligence of
neither a contract, nor such community of his independent contractor whom the defen-
interest, they are called licensees and fourthly, dant chose and whose competence was not
there are persons who enter as trespassers. In h disputed by any party. Could therefore the
the order we have mentioned such persons, the blame for the plaintiff’s misfortune be shifted
duty of care is cast in a descending scale, the on to the shoulders of the defendant’s indepen-
highest duty of care being towards persons who dent contractor in the circumstances of this
enter the premises by virtue of a contract down case?
and not so high in the case of invitees and so on.
While the rule that an employer of an indepen-
Such duty of care has been spelt out at common
i dent contractor is not liable for the default or
law in each case.
 Datuk Bandar Dewan Bandaraya Kuala Lumpur v.
Ong Kok Peng & Anor.
[1993] 3 CLJ Peh Swee Chin SCJ 209

negligence of such contractor no doubt exists, a High Court against the defendant in favour of
there are exceptions, and it is outside the the plaintiff for this reason alone.
province of this judgment to elaborate all the
The defendant would also be liable in any
exceptions but only briefly to deal with them
event, for a different reason, that the last
except those which are directly concerned with
mentioned exception about statutory duty ap-
the instant case.
plied to this case. The maintenance of lift was
First exception is where an employer has not b also a statutory duty imposed on defendant by
exercised care in selecting a competent con- the Factory and Machinery Act 1967. The
tractor as was much pressed in argument in defendant cannot also for the reason escape
the present case. Second exception is a group of liability by delegating it to the third party, his
cases or situations when the duty to take care independent contractor. Please see, e.g. ss. 14,
is said to be “non-delegable”. A non-delegable 15 and 21 of this Act.
duty to take care means in effect that the
c The breach of duty of not exposing the plaintiff
employer would have to see to it that such duty
to and of failure to warn the plaintiff of the
of care is exercised, whether by his contractor
concealed danger or trap in the instant case
or not, otherwise he would be equally liable as
was specifically the failure by the third party
the contractor, in addition, in most cases, to the
and also by the defendant for seeing to it that
liability of his contractor. Such non-delegable
there was no such failure, to give any warning
duty exists in the case of work causing with-
signs in respect of the defective lift.
drawal of support to neighbour’s land, see
d
Bower v. Peat [1876] 1 QBD 321; work done on Such failure aforesaid of third party was in
a highway, see Tarry v. Ashton [1876] 1 QBD breach at least, of his contractual obligation to
314; cases of a master’s duties for his servant’s erect such warning signs etc. under clause 4 of
safety at common law, see Wilsons & Clyde the maintenance agreement of the lifts made
Coal Co. v. English [1930] AC 57; cases of strict between the defendant and the third party and
liability and finally cases of statutory duty a fortiori when in addition, the third party
imposed on certain categories of persons. e expressly agreed under clause 14 of the same
to the effect to indemnify the defendant for
The last two mentioned exceptions require
damages for accidents at common law, the
elaboration as they have considerable relevance
defendant was clearly entitled to indemnify
to our instant case.
from the third party in respect of the damages
The exception in regard to cases of strict liabil- payable by the defendant to the plaintiff. The
ity above mentioned refers to cases of such third party was also negligent, (quite apart
strict liability at common law, such as the rule f from the breach of the said clause 4 of the said
in Rylands v. Fletcher. The exception covers, agreement), in respect of such failure in giving
inter alia, all cases involving extra hazardous such warning signs, before the date of the
acts or omissions, or situations created by accident, from the moment (like the defen-
them, which all involve special danger to oth- dant), it came to know or ought to know of the
ers, please see the reference to them e.g. in trap or hidden danger created by the defective
Salsbury v. Woodland [1970] 1 QB 324, such as lift notwithstanding the demoralizing delay by
g
damage by fire, see Honeywill Stein Ltd. v. the defendant in approving the purchase order
Larkin Brothers Ltd. [1934] 1 KB 191 so that an for the spare parts; a fortiori when it had in fact
employer of an independent contractor, to re- already received such approval about 8 days
peat, cannot escape liability by delegating the before the date of accident.
work to such independent contractor.
We therefore made the order mentioned
In our view, the situation described earlier as earlier accordingly.
facing the plaintiff was a situation created by h
such an extra hazardous act or omission in-
volving special danger to such users of that lift.
The defendant could not escape such liability
entrusted to or by entrusting to the third party.
That is why we confirmed the judgment of the
i