Occupiers are liable for injuries to lawful visitors when they fail to ensure a safe working environment, irrespective of ownership or employee relationships.

[1] This is the plaintiff's appeal from the Sessions Court against the dismissal of its claim against the second defendant arising from an accident on 23 April 2009. The learned Sessions Judge dismissed the claim after a full trial on the ground that the second defendant, a corporation, was not liable vicariously as principal as the actual tortfeasor who was alleged to be responsible for the injuries which led to the death of the plaintiff's husband was not named as a co defendant.

[2] The appeal was essentially confined to the question of liability.

The Brief Facts

[3] One Letchumanan a/l Subramaniam ('the deceased') was employed as a lorry driver by Teik Joo Chan Sdn Bhd, the first defendant. On 23 April 2009 the deceased and his lorry attendant Mogan a/l Ramasamy were instructed by the first defendant to go to the second defendant's (Westport Malaysia Sdn Bhd) premises located in Port Klang to collect a shipment of corn. The deceased was issued a security pass by the second defendant to enter its premises for this purpose.

[4] At about 11.00 am, the deceased and his attendant completed the task of loading the corn onto the lorry. Whilst the deceased was fixing the chain to the exterior of his lorry, he was knocked down by an excavator driven by one Tan Chun Huat. The deceased was rushed to hospital but was pronounced dead on arrival. On the same day, Yeap Jean Ming, the manager of Westport Warehouse Services Sdn Bhd, lodged a police report stating that their employee Tan Chun Huat, had informed him that "terdapat seorang pemandu lori BAE 4383 telah pengsan semasa kerja memunggah jagung ke dalam lori di dalam gudang". It bears mention that there was no mention in the report that Tan Chun Huat was the excavator driver who had knocked down the deceased.

[5] An inquiry was conducted by the second defendant sometime in 2009 as regards this mishap. However, the report was not produced in Court.

[6] In April 2012, the plaintiff, as the lawful wife of the deceased commenced proceedings for damages under s 7 of the Civil Law Act 1956 against the first and second defendants for herself and her children being the dependents. The excavator driver was not cited and named as a co-defendant.

[7] On 30 July 2012, the solicitors for the second defendant wrote to the plaintiff asking for further and better particulars as to the place of accident and the identity of the excavator and its driver who had knocked down the deceased to enable it to file its Defence. On being furnished the particulars, the second defendant delivered its Defence acknowledging that that the accident had taken place in the vicinity of See Hoy Chan Warehouse ( hereinafter referred to as "the site"), but denied it was liable for the accident. It was alleged, inter alia, that it did not own and had no control of the site where the accident took place as the same had been leased to See Hoy Chan Agencies Sdn Bhd and that the excavator driver was not its employee. The excavator driver was the employee of a company known as Westport Warehouse Services Sdn Bhd that had been engaged by See Hoy Chan Agencies Sdn Bhd to handle cargo handling operations.

[8] In March 2013, the second defendant applied under O 18 r 19 of the Rules of 2012, to strike out the plaintiff's claim on the ground that the action was unsustainable on the basic that the plaintiff had failed to cite the excavator driver as a co-defendant, despite having in possession his