Q.
What is "Slip & Fall" tort claim? Can all slip & fall be claimable?
A.
Read article by The Star Malaysia on 14 Dec 2010, written by Bhag Singh, verbatim below.
Watch your step
Any right arising from an injury suffered on a premises belonging to someone else depends on a number of factors.
The Star Malaysia, Bhag Singh, 14 Dec 2010
Any right arising from an injury suffered on a premises belonging to someone else depends on a number of factors.
THE thought of slipping, tripping or falling may appear to be inconsequential, at first. The person may regain his balance on time, or just pick himself up and continue walking, with little thought of the incident.
However, if injuries are suffered due to the fall, then the matter becomes more significant. Where the fall occurs is also a consideration.
If it happened on one’s own premises, there is usually no one else to blame. But what if it happens in a shop?
Owners of premises, big or small, owe in law a duty of care to all who enter their premises. The duty of care is under a branch of the law referred to as tort.
The word “tort” is derived from the latin Tortus which refers to a civil wrong independent of contract. Liability in tort, as explained by L.B. Curzon in The Dictionary Of Law, arises from a breach of duty towards others generally, a breach which is redressible by an action for damages, among others.
It is a general principle of law that a person who maintains, controls and operates a building must do so in such a way as not to cause injury to those lawfully within the premises. It is, in law, referred to as occupier’s liability.
If a defective condition exists – such as a torn door mat, broken tiles, worn staircase or loosened stair railings, accumulation of refuse, weak ceiling or roofs – and a person is injured thereby, the owner of or person in control of or managing the premises is liable.
Classes of people
However, in imposing liability, the law views differently the various people who entered the premises. So the question is, whether the person injured is a trespasser, a licensee or a guest.
In the case of trespassers, the rule is that the owner is not liable for harm caused even if the premises is in an unsafe condition. This is because in relation to a trespasser, the duty of the owner is only a duty to not intentionally inflict injury.
To a licensee, too, the owner owes no active duty of care but will be liable if he knows of the danger and that it involves an unreasonable risk to the licensee or if he invites the licensee to the premises without first having taken reasonable care to make the condition safe or without warning the licensee of the danger.
However, if you have gone to the premises to buy something, then it could be said that you are there at the implied, if not express, invitation of the owner, in which case your status is that of a guest. In such case, the owner’s duty is to take reasonable care to discover a dangerous condition on the premises and either make it safe or warn his business visitor of the danger.
As a business visitor, you would enjoy the superior status of a guest. This is because a business guest receives greater protection than a social guest, as the owner expects to derive a profit or economic benefit. Therefore, the law places in his favour and on the owner a more onerous duty.
Business visitor
A business visitor does not actually have to engage in a commercial transaction, such as making a purchase, in the shop.
On the other hand, however, it is arguable that anyone who comes into the shop merely to loaf or to seek shelter from the rain is not a business visitor.
The dividing line between business visitor and non-business visitor is a thin one. He must have come to the shop for a legitimate purpose – such as an intention to make a purchase – even though he does not eventually make one.
In the case of a business visitor, the owner’s liability is limited to harm caused by dangerous conditions about which the owner knows or which on inspection he could uncover.
However, if the owner knows or creates the dangerous condition, he is liable.
Relevant circumstances
Thus, if you are hurt by falling on a wet floor, the question is, under what circumstances did the floor become wet and slippery.
If someone had walked into the shop just to avoid the rain and had in the process made the floor wet and slippery and you had thereafter immediately walked onto the slippery spot and fallen, the owner being unaware would not be liable.
However, if this habitually happens when it rains and the owner is aware of such a dangerous condition being created, then he becomes liable if he fails in his duty to remove the danger or warn the customer such as you.
If the floor is wet and slippery because the owner’s cleaners have just mopped the floor and no sign has been put up to warn you, then the owner would be liable.
Conclusion
What if you are injured due to a fall in the common corridors of a shopping mall? Then the owners or managers of the common property would be liable on the same principles discussed earlier.
Of course, the damages that flow will depend very much on the injuries suffered. That aside, the court will also consider whether such a person has in anyway contributed to the fall, such as the type of shoes worn by him during the fall.
If there is an element of blame on the part of the injured person, the damages awarded will be reduced by the percentage of the blame attributed to the aggrieved person.
In the case of an intruder or trespasser, he would be entitled to nothing.
Ref:
https://www.pressreader.com/malaysia/the-star-malaysia-star2/20101214/281535107408080