Dáil Éireann - Volume 448 - 26 January, 1995
Occupiers' Liability Bill, 1994: Second Stage.
Minister for Equality and Law Reform (Mr. Taylor) Mervyn Taylor
Minister for Equality and Law Reform (Mr. Taylor): I move: “That the Bill be now read a Second Time.”
My main aim in introducing this Bill is to increase the protection for occupiers of land against claims by trespassers and recreational users. In doing so, I want to ensure that recreational use of land is facilitated to the widest extent possible. This means creating a climate where occupiers will not be deterred from making their land available for such use because they are fearful of being sued for personal injuries. I also take the view it is time that the principles governing occupiers' liability were put on a firm statutory basis.
The Occupiers' Liability Bill, 1994, is a measure which has been in preparation for a comparatively short time. The Law Reform Commission's consultation paper on occupiers' liability, which helped to shape the debate on this matter, was published just over a year and a half ago. The commission's final report was only published in May of last year. I hope that, notwithstanding the detailed examination to which I am sure it will be subject, it will now have a speedy passage. I am particularly pleased that its publication last year meant that I was able to adhere to the commitment in the Programme for Competitiveness and Work to produce this reforming legislation during 1994.
The Law Reform Commission report on occupiers' liability contained a comprehensive programme for reform in  this area. The majority recommendations in that report suggested that the appropriate legislation should include the following key features: entrants should be divided into two classes — visitors and trespassers: two members of the commission throught that a third class should be provided by dividing visitors into invites and permitted entrants, a common duty of care should exist towards all visitors, and the circumstances relevant in determining whether that duty had been discharged should be specified; there should be a duty not to injure trespassers or recreational users intentionally, or to act with gross negligence towards them; there should be no special exception for child entrants who are recreational users or trespassers: two members thought this would be unconstitutional and recommended an exception for child trespassers under 12 on the lines of the relevant legislation in force in Alberta, and, occupiers should be able to extend or restrict their liability by agreement or notice.
From this brief resume of the final recommendations, it is clear that the issues raised by the occupiers liability question are legally difficult and potentially controversial. As I go through the Bill, I propose to return again to these recommendations, both to indicate where they have been adhered to and to explain why, in some areas, a different emphasis has been placed on them.
More so than in most Bills, section 1, the interpretation section, is of crucial significance. It provides the keynote definitions which inform the basic principles which are central to the Bill. Traditionally, the duties of an occupier have been concerned with the static conditions of premises rather than with the activities conducted on them. The Bill maintains this distinction by providing that the duty which an occupier owes to an entrant under its provisions will relate exclusively to dangers on the premises — “danger” being defined as that which is due to the state of the premises only. For example, this Bill would be relevant where an individual  was injured as a result of falling into a deep trench, but would not be relevant where the accident occurred as a result of the careless driving of heavy machinery. In the latter case, general principles drawn from the body of case law in relation to negligence would apply.
The concept of “occupier” is also one which needs to be considered in some detail. Essentially, an occupier for the purposes of the Bill is an individual who is in actual occupation of the premises for the time being and, as such, has immediate supervision and control over those premises and the power to admit or refuse entry to other persons. In some cases, it is possible for there to be more than one occupier as, for example, where the owners of premises grant a licence which allows part of the premises to be used by another individual while, at the same time, retaining certain rights in relation to those premises. In such an instance, it is also possible that each of the occupiers will owe different duties to the entrant who may be a trespasser vis-á-vis one but a visitor vis-á-vis the other.
As defined in the Bill, “premises” is a very comprehensive term. It includes land, buildings and water. It also encompasses objects on land such as scaffolding and electricity pylons. Finally, it extends to vessels, vehicles, trains and aircraft. It therefore, covers a range of premises including dwelling-houses, farmland, forest parks, playgrounds, supermarkets and so on. In other words, the scope of the Bill is much broader than just agricultural land.
The Bill provides for three classes of entrant — a visitor, a trespasser and a recreational user. These new classes replace the old system of classification whereby an entrant was assigned to a particular class, depending in part on the nature of the benefit which that entrant conferred upon the occupier. A visitor is essentially a person whose presence on premises is lawful. As such, the term covers those invited on to premises by an occupier, as well as those permitted by that occupier to be there.
 It also includes entrants as of right, such as those authorised under statute to enter premises for some official purpose.
A trespasser, by contrast, is a person whose presence on premises is unlawful.
The third class deals with recreational users and adds greatly to the clarity of the situation to have a precise definition of such users. They are defined in section 1 as those who, without payment of any charge, enter on to premises to engage in a recreational activity which is conducted in the open air. It may be an activity capable of being carried on by individuals or groups such as hill walking, hunting or swimming, or it may include a team sport such as football. The recreational user category will also apply to those who visit sites and buildings of historical, national or scientific importance. The fact that an occupier gives permission for such an activity to be engaged in will not result in the entrant being elevated to visitor status.
It is also important, for the sake of clarity, to make it plain, as section 2 does, that the provisions in this Bill will replace the common law rules which now govern occupiers' liability. This is particularly important in the case of the provisions relating to trespassers where the existing law is being changed quite radically.
Section 3 sets out the duty which an occupier of premises owes to a visitor. That duty is the “common duty of care”, which means a duty to take reasonable care that the visitor does not suffer personal injury or damage to his or her property by virtue of any danger existing on the premises. This provision follows closely the Law Reform Commission's recommendations and the effect of the provision is essentially to apply general negligence principles to this area of the law. From this it follows that, before any liability can be imposed, there must be a breach of the duty which the occupier owes to a visitor, and the damage or injury suffered by the visitor must be caused by that breach.
The duty owed to recreational users  and trespassers is set out in section 4. In this instance, negligence principles will not apply, although the Law Reform Commission recommended that gross negligence should be the appropriate standard. Instead, the duty of the occupier is being pitched at a lower level. That duty is not to injure such users intentionally or to act with reckless disregard for them. The duty also extends to damage to their property. The basic premises is that trespassers and recreational users should largely be able to take care of themselves, and that occupiers should not be liable except where they behave with reckless disregard for the presence of such entrants.
Many landowners are willing to make their lands available for a wide variety of recreational pursuits which are an intrinsic part of many individuals' leisure time. Not surprisingly, they are not willing to accept anything other than a very limited liability in law for any accidents which may befall those users. The recreational users themselves are, for the most part, in agreement with landowners on this issue. In general, they are more than happy to take responsibility for themselves. Clearly, there is a consensus between landowner and recreational user here and I do not believe that the law should frustrate this consensus.
Landowners with national monuments on their property which, of their nature, attract visitors are also reluctant to accept responsibility for any injuries which such visitors might sustain, especially where no charge is imposed for the visit. The fact that the monuments may not be in the best structural condition adds to the worry of such landowners. I believe the Bill will remedy this situation. These monuments are part of our national heritage, and it is in all our interests that access to them should not be constrained by unnecessary fears about potential liabilities.
Returning again to the text of the Bill, in determining whether an occupier has acted with reckless disregard for a recreational user or trespasser, there is a  range of factors which have to be considered. Their application and effect will vary, depending on the circumstances.
For example, in so far as there may be a danger on the premises, that danger must be one against which an occupier might reasonably be expected to provide protection. An ordinary fence from which someone falls while climbing over it would not be such a danger. Also, the burden on the occupier of eliminating the danger or of protection from the danger, bearing in mind its degree, must be weighed against the difficulty, expense or impracticability of doing so. For example, an occupier with a lake on his or her premises would not be expected to put a wall around it to ensure that a recreational user or trespasser did not fall in. Another factor which must be taken into account is the character of the premises and the desirability of maintaining open access where those premises are likely to be used for recreational activities. Clearly, the same burden of protection will not be expected of an occupier of a working farm or wilderness park as would be expected in the case of the interior of a building which was specifically designed to attract visitors. Finally, any warnings which may have been given by the occupier or by another person will also be relevant.
So far, the provisions which I have outlined in relation to recreational users and trespassers are broadly in line with the recommendations of the Law Reform Commission. I now wish to deal with the position of such entrants who also happen to be minors. Here, there is some small divergence from the letter, although not, I think, the spirit, of the recommendations made by the three members of the commission who put forward the majority view. It is this issue, more than any other, which has given rise to critical comment, some of which, appears to be based on a misunderstanding of the Bill's provisions.
It has been said that it turns farmers into child minders or guardian angels.  Let me say straightaway that that is simply not so. On the contrary, the Bill reduces substantially the liability to child and other trespassers which all occupiers have under the present law.
Let us look at what the language of the Bill says in relation to minors who are recreational users or trespassers. It merely says that regard is to be had to their age and to their ability to appreciate the danger. These are just two factors which are additional to those I have already outlined. The Bill does not say that an occupier owes such minors the common duty of care. Nor does it say that the occupier is strictly liable for whatever accident may befall such an entrant. Even the majority view of the commission acknowledges that a court could never be prevented from taking the capacity of the child plaintiff into account in its findings. I have introduced an additional criterion which makes it plain that, where a minor is on premises in the company of another person, the extent of the supervision and control which that person might reasonably be expected to exercise over the minor's activities will also be relevant in determining whether an occupier has acted with reckless disregard.
Nonetheless, I appreciate that this issue is one which has given rise to some concern on the part of those who feel their position is prejudiced by the proposed provision in relation to minors. I am at present reviewing the provision relating to minors in accordance with the commitment in the Government's programme. I will listen closely to the views of Deputies as expressed in the forthcoming debate and the provision will be considered carefully by me in the light of those views, and of others, in advance of Committee Stage.
The ability to appreciate danger is also relevant in the case of people with mental handicap as is the situation where a person with such a handicap may be accompanied by a carer. The Bill provides that regard will be had to these factors in determining whether an occupier has acted with reckless disregard towards such a person.
 Before leaving section 4, I should like to make two general points. First, self-employed persons such as farmers are already required under the Safety, Health and Welfare Act of 1989 to conduct their undertakings in such a way as to ensure, as far as reasonably practicable, that persons other than employees are not exposed to risks to their safety or health. Second, in Northern Ireland, Scotland, England and Wales the duty owned by an occupier to a trespasser — essentially a duty of care — is a good deal higher than what is being provided in the Bill.
I should also like to mention that, where structures are provided primarily for recreational use, there will be an onus on the occupier to take reasonable care to maintain them, in a safe condition. I should stress that such structures do not include gates and stiles which would be used in the ordinary course of farming, for example. Rather, they would include such structures as benches in parks on which people may sit, secured viewing points in scenic areas and equipment provided for use in playgrounds.
Section 5 is another very important section in the Bill, which substantially implements the main recommendations of the Law Reform Commission. This section allows occupiers to extend the duties which they owe to all entrants. While this may be unlikely to occur in practice, it is appropriate that the Bill should not rule out this possibility where a particular occupier chooses to act with this degree of generosity.
It also entitles occupiers to modify the duty they owe to visitors under the Bill and, in effect, to decide that it should only be that which is owed to trespassers. This modification may be done by agreement or by notice, also warnings, which if heeded by the visitor would have enabled that visitor to avoid injury, may absolve an occupier from liability altogether. Given the reduced duty which will be owed to trespassers and recreational users. I have taken the view that it would be inappropriate for occupiers to be able to reduce their duty to  entrants below this basic level. In a civilised society it goes without saying that occupiers should not injure entrants intentionally or act with reckless disregard for them.
Section 6 enshrines a basic principle which is common to most statutes on occupiers' liability, namely, that strangers to a contract should not have their status as entrants adversely affected by contracts to which they themselves are not parties. Similarly, section 7 contains another general principle whereby occupiers will not be liable for the negligence of an independent contractor if they have taken reasonable steps to ensure that the contractor is competent and to satisfy themselves that the work has been properly done.
I was concerned to ensure that there should be no doubt in anyone's mind that, confronted by a trespasser with criminal intent, an occupier would be able to act in legitimate self-defence. For that reason, section 8 expressly preserves the legal principles relating to self-defence, the defence of others and the defence of property. In certain circumstances it may happen that, in addition to the duties which occupiers have, they also have other quite particular duties which they owe in a different capacity. For example, employers owe a specific duty to their employees to provide them with safe premises, independently of any duty which they may owe to them as occupiers. Section 8 also makes it clear that the statutory prescription of occupiers' liability does not affect this type of duty.
Central to section 9 is the idea that entrants have a duty to take reasonable care for their own safety. The principles of contributory negligence will apply so that any damages awarded in a successful action may be abated where entrants are shown to have contributed to their own injury.
Section 10 is the final section in the Bill and it provides that its provisions will come into operation one month after the date of its passing. The reason for this one month period is that the law in this area is being changed greatly and  I believe that it would be helpful for entrants and occupiers alike to have this breathing space to accustom themselves to the new regime.
There are a variety of paths which might be followed when it comes to reforming the law on occupiers' liability. I believe we now have a product which is geared towards our specific requirements and which has benefited from the legislative experience which has been gained in other jurisdictions.
I appreciate there is a perception that there has been a long wait for reform in this area of the law and that there has been some impatience with what were seen as unnecessary delays. At this stage, I am happy that there is a Bill before the House which deals fully and comprehensively with the occupiers' liability issue, taking into account the valuable work of the Law Reform Commission. In this context, I emphasise the importance of bearing in mind that the law of occupiers' liability is concerned with the duty owed by all occupiers of premises or land towards entrants, whether invited or uninvited, who suffer personal injury or property damage during their visit. Its purpose is to strike a balance between a wide range of competing interests and it should be seen in the context of the reasonable expectations of both occupier and entrant in a variety of domestic, social and commercial settings.
This is an important, and in some respects complex, Bill and I have no doubt but that it will benefit from a detailed study in Committee in due course. I and my Department have been in close touch with the main farming organisations both before and since publication of the Bill and I am considering their various suggestions. I assure the House that I will give the fullest consideration also to any comments or suggestions Deputies may make in this debate and to any amendments they may table on Committee Stage.
I commend the Bill to the House.
Dr. Woods Dr. Woods
Dr. Woods: This is a most important  and far reaching Bill. Its implications are crucial, not only for landowners but for the community as a whole. It is vital that we tackle the issues involved if we are to contain soaring insurance costs and, at the same time, ensure that our great tradition for sports, leisure and recreation is not only preserved but enhanced. Farmers and landowners generally have been co-operative and welcoming in allowing access through their lands to forests, rivers, mountains and heritage monuments. Now, because of litigation and rising insurance costs, they must seek to protect themselves. This legislation is, therefore, timely and highly relevant.
The issues that concern us are far wider than might at first appear. They include access to the community hall, the school premises, the swimming pool, the children's playground etc. The city, the local park or playground and amenities proposed by the local community development group are also seriously affected by issues relating to occupiers' liability. One of the greatest anomalies in civil law relates to the liability of the humble householder for injuries to trespassers, especially when the trespasser is about an illegal purpose. All these matters should be considered in the context of this Bill.
This is a good Bill which is worthy of support. It improves the position for occupiers and landowners, especially in relation to trespassers and recreational users. Issues relating to the duty of care which must be provided for minors and liability for the maintenance of structures on sites provided for the convenience of recreational users will need to be fully addressed on Committee Stage. If the Bill fails to allay the fears of occupiers, the cost will be closing off much of the countryside to the people generally and to their children.
This Bill was at an advanced stage of preparation before the seating arrangements in this House were changed. The object of the Bill was to clarify an unclear area of law to meet, in part, the demands of farmers and landowners and, in so doing, to reduce the insurance  costs they have to bear. The lack of precision in the law arises because the current position is the sum of many different judgments in court cases over the years, some more and some less sympathetic to the interests of the occupier. There is no clear formula. The judge in each case has to consider factual issues, and the extent of the duty of care which the occupier owes. The test of reason-ableness, whatever that means, is applied and each cases is decided on its merits.
The Minister is essentially now trying to codify the position, to spell out the criteria and the factors that will determine the liability of the landowner. I am not entirely convinced that the new code is any simpler or clearer than the existing law and I do not think the enactment of this Bill will reduce the volume of litigation or the insurance costs that landowners must bear. That is something we can discuss at greater length on Committee Stage.
Dáil Éireann 448 Occupiers' Liability Bill, 1994: Second Stage.