With Airbnb becoming more accessible, easier to use in Malaysia and the preferred mode of lodging, one may ask what is the protection confer to the guests who choose to stay in an Airbnb’s lodging?
Will the guests be conferred the same protection as they were staying in a proper hotel if something goes wrong? Or can the Airbnb’s owner get away with it?
In other part of the world such as the United Kingdom, there are law such as the Occupiers’ Liability Act 1957 [“OLA 1957”] which regulates the duty which an occupier of premises owes to his visitors in respect of dangers due to the state of premises or to things done or omitted to be done on those premises. Furthermore, there is also the Occupiers’ Liability Act 1984 [“OLA 1984”] which deals with persons who are non-visitors or trespassers.
But none are enacted in Malaysia.
Does that mean that there is no protection conferred to a visitor who sustains injury or suffers damage during their stay in the premises in Malaysia?
Well, in Malaysia, the law on occupiers’ liability is based on common law principles and come under the tort of negligence.
An occupiers’ liability arises in a situation where the premises are not safe as it should reasonably be and this defective state, which includes activities carried out on the premises, had caused injury or damage to the visitors.
Who is an occupier?
Can an Airbnb’s host be considered as an occupier?
In Wheat v Lacon & Co. Ltd¸ an occupier is defined as someone who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons.
This was later applied in many cases in Malaysia where in one of them, Sri Inai (Pulau Pinang) Sdn Bhd v. Yong Yit Swee, the Court of Appeal held that a landlord of premises stands in close proximity to the lawful visitors of his tenants.
This duty is the duty to ensure that the premises let out are indeed safe and suitable for the purposes for which they are let out.
The Court of Appeal held that the scope of duty encompasses dangerous defects which are known, or ought to be known, by the landlord.
Further, the Court of Appeal held that once it is established that a person has sufficient control over the premises, he is deemed to be the occupier and may be sued for any injuries sustained on the premises.
In this regard, an Airbnb’s host has a duty to ensure his / her premises are safe for lodging as an Airbnb’s host has sufficient control over the premises being the owner of the premises.
However, would an Airbnb’s guest falls within the scope of an entrant and what is the necessary standard of care required?
Is Airbnb’s guest an entrant?
Basically, there are four types of entrants, namely as follows:-
|Contractual entrants||A person who is on the premises pursuant to a contractual right.|
|Invitees||A person who enter the premises with the permission or on the authority of the occupier.|
|Licensees||A person who enter the premises with the occupiers’ gratuitous permission, be it expressly or implied.|
|Trespassers||A person who enters the premises without any express or implied permission of the occupier.|
In this regard, an Airbnb’s guest is one who is on the premises pursuant to a contractual right as the guest has entered into a contract with the host for lodging.
If so, then what is the standard of cares required for a contractual entrant?
The Standard of Care
The occupiers’ duty for the host is to ensure that the premises is safe and adequate for the purpose for which it is contracted out, and the occupier must employ and exercise reasonable steps and expertise in the performance of this duty.
This was seen in Maclenan v. Segar where a fire broke out at the defendant’s hotel and the Plaintiff was injured whilst trying to escape from the 2nd floor of the building. The Court found the Defendant’s hotel to be liable for failing to ensure that the premises was safe for habitation, as there was no emergency way out.
The Court opined that when an occupier for a reward, agrees that another person will have the right to enter and use the premises for an agreed purpose, then the agreement contains an implied warranty that the premises would be safe for purpose so far as reasonably expected.
In the same way as an Airbnb’s host let out his / her premises to guests for lodging, the host has the duty to ensure that premises is fit for the guest’s lodging and is safe as reasonably expected.
In short, the standard of care required of the occupier is to ensure that the premises are reasonably safe for that intended purpose.
How can the Airbnb’s host meet the standard of care?
An Airbnb’s host who is sued may raise the defence of volenti non fit injuria or that he / she has put up a sufficient notice of warning.
In Lee Geok Theng v. Ngee Tai Hoo & Anor, the Court held that volenti non fit injuria simply means that to which a man consents cannot be considered an injury.
The Court further opined that no act is actionable as a tort at the suit of any person who has expressly or impliedly assented to it and that no one can enforce a right which he has voluntarily waived or abandoned.
The consent must be real and given without force, fear or fraud and mere knowledge of the risk does not amount to consent.
The Airbnb’s host need to ensure that the guest was fully informed of the situation which may give rise to the injury and understood the risk of injury. Most importantly, the guest must voluntarily undertake the responsibility for the risk.
It is important to ensure that the guest has full knowledge of the risk as mere knowledge of the existence of the risk is insufficient.
This can be seen in the landmark case of Haris Arman v. Berjaya TS Management Sdn Bhd where the deceased trespassed into a room which had been clearly labelled as “Saluran Ekzos Dapur” which was secured and/or locked by the Defendant and fell from the 7th floor.
The High Court in dismissing this claim held that the deceased has clearly failed to adhere to the directional signboards despite having knowledge of the signage and thus the Defendant’s defence of volenti non fit injuria would applied to absolve the Defendant’s liability.
By applying this, an Airbnb’s host ought to put up a warning or notice to ensure that the guest is fully aware of the danger or install devices in order to prevent the guests from coming in contact with the danger so as to ensure that the duty of care is not breached.
An Airbnb’s host will not be able to run scot free if something went wrong in the premises which caused injuries or damages to the guests. At the end of the day, the Airbnb’s host who lets out the premises need to ensure that the premises is fit for lodging and it is reasonably safe. If there is any defect, a notice or a warning should be place in a manner where it can be noticed by the guests. The host should also ensure that the guests are well informed of any dangers. Meanwhile for the guest, rest assured that the law does protect you if you are injured in the premises due to the negligence of the Airbnb’s host.