I move that the Bill be now read a Second Time. The purpose of the Bill is to amend and codify the law relating to inns and innkeepers. The common law has, for centuries, placed the innkeeper in a special position in regard to his duty to receive travellers and his liability for the property which travellers bring with them to the inn. It is the common law duty of the innkeeper to receive and lodge every traveller at any hour of the day or night, unless he has reasonable grounds for refusing to do so, and to receive the traveller's horse, carriage, car or other vehicle and any other goods with which a person usually travels, provided there is accommodation for them at the inn. Failure to fulfil this duty is a criminal offence as well as a civil wrong. Moreover, the innkeeper is under a strict liability at common law for the loss of all goods brought to the inn by a traveller. It is immaterial whether the goods are lost by theft, through the negligence of another guest, or by the acts of the innkeeper's own servants. The only cases in which the innkeeper can escape this liability are where he can show that the loss was due to an act of God or of the enemies of the State or the guest's own negligence.
The Innkeepers' Liability Act, 1863, modified the common law liability by providing that an innkeeper shall not be liable to any guest for the loss of goods to an amount greater than £30, unless the goods are lost through the wilful act, default or neglect of the innkeeper or any of his servants or unless the goods have been deposited expressly for safe custody with the innkeeper. This limitation of liability does not, however, extend to horses or other live animals or to any carriage, motor car or other vehicle. The innkeeper has the right at common law to detain the property of a guest who fails to pay his bill and, under the Innkeepers Act, 1878, he has the right to sell the property after six weeks in order to satisfy the debt.
Almost a century has elapsed since the position of innkeepers was last regulated by the legislature and, in the meantime, great social and economic changes have taken place which, coupled with the introduction of cheaper and faster methods of transportation, have resulted in the transformation of the old roadside inn into the modern hotel. It has been represented to me that in the light of the altered conditions now obtaining a review of the law relating to inns and innkeepers is overdue.
It has been suggested, for example, that innkeepers' strict liability in respect of the property of travellers operates harshly on the modern hotel-keeper and that it is an anachronism and ought to be abolished. In Britain the Law Reform Committee examined the matter and reported in 1954 that certain amendments of the law were desirable. The Committee's recommendations were implemented in the Hotel Proprietors Act, 1956.
The subject has also been under examination by the Council of Europe which has prepared a draft convention aimed at securing uniformity of the law in this respect amongst member countries. In the present state of the law obtaining here it would not be possible for this country to adhere to the Convention which, incidentally, will shortly be opened for signature. In view of all these circumstances I decided to have a detailed examination of the matter carried out and it is as a result of that examination that I am now putting forward the proposals which are contained in the present Bill.
The Bill re-states the principles of the existing law relating to innkeepers subject to certain important amendments. Deputies will notice that we have elected to discard the term "inn" in favour of "hotel" which is, of course, the more apt description nowadays. The Bill imposes on the proprietors of hotels, as defined in Section 1, new statutory duties, liabilities and rights similar to, but in substitution for, those at present attaching to innkeepers under the common law. The definition of "hotel" reproduces the substance of the present common law concept of an inn and, in addition, is so drafted as automatically to include every establishment registered as a hotel with Bord Fáilte Éireann. This latter provision is new and is designed to remedy one of the unsatisfactory features of the present law, namely, the difficulty of ascertaining whether a particular premises is or is not an inn. The provision will mean that persons staying at registered hotels can be certain that they will enjoy the benefit of the protection accorded to them by the Bill. It is of interest to note that in England the Law Reform Committee drew attention to this defect in the existing law but did not offer any solution and, in fact, the matter was not dealt with in the English Act of 1956.
Section 3 of the Bill re-enacts the duty of a hotel proprietor to receive all persons presenting themselves and requiring sleeping accommodation, food or drink and to provide them therewith at reasonable prices, without special contract, unless he has reasonable grounds for refusal. The duty is based on custom and originated in mediaeval times when circumstances surrounding travel were admittedly very different from those obtaining to-day. In those days a person travelled on horseback and if, at the end of a day's journey, he was turned away from an inn, he might have to travel a considerable distance before obtaining alternative lodging for the night. This created obvious hardship and exposed the traveller to the risk of being robbed by highwaymen. Because the circumstances which gave rise to the common law rule have now disappeared, it is sometimes argued that the duty to receive all comers is an anachronism and ought to be abolished. I am satisfied, however, that this argument is fallacious and that it would not be in the public interest or in the interest of the tourist industry that hotels should be able to reserve their hospitality for selected guests. It seems to me that if the proprietor of a premises holds himself out as prepared to receive all comers, it is only equitable that he should be prepared to take the rough with the smooth, and be bound by the law to receive every person who appears able and willing to pay for the services and facilities of the hotel, provided he is in a fit state to be received.
Deputies may notice that in Section 3, and, indeed, generally throughout the Bill, the duties and obligations of a hotel proprietor will extend to all persons who seek admission to the hotel as guests and that the existing common law concept of confining these obligations and duties to travellers is being abandoned. I am satisfied that the present concept is unreal and no longer of any significance under modern conditions. Indeed the English courts have recognised that the distinction now exists only in theory by holding that a person who visits his local inn for a drink is a traveller, even though his home may be only a short distance away. On the other hand, the distinction which the common law draws between "guests" and "lodgers" is preserved under the Bill and the obligations of hotel proprietors will extend only to the former.
In this connection I wish to mention that, as a result of a recent Australian decision, it has been deemed advisable to provide that the duties and liabilities of hotel proprietors shall apply to all guests whether or not they are received under special contract. The Australian case in question was one in which the Supreme Court of Victoria held, in 1953, that persons who had booked in advance to stay at a sea side hotel for definite periods of from nine to twenty-one days, and who claimed the accommodation so booked and were received by the hotel proprietor on the terms and basis of their prior contract, were not guests but lodgers, with the result that the proprietor did not come under the common law duty of insuring the safety of their belongings.
It is not, of course, for this House to question the wisdom of the decision of the Australian court but I am satisfied that in so far as conditions in this country are concerned the tests which were or may have been apt in the seventeenth century to distinguish between the ordinary traveller's use of an inn and the use of it by a person then regarded as a boarder are no longer satisfactory criteria by which to distinguish between the two concepts as they are understood to-day. The responsibilities of innkeepers under the common law were fundamentally designed to protect those who came as guests to inns, but that does not mean that, in order to be a guest, a person must nowadays come in circumstances precisely similar to those which prevailed when the common law custom originated, for, if that were so, the custom would long since have died out.
If one sought, for example, to limit the custom today to travellers who arrive unannounced at hotels there would be few cases in which liability under the custom would attach. Modern usage is such that it would seem mere anachronistic eccentricity for the law to impose on a hotel proprietor a greater duty to the relatively few casual callers who come without any notice and are fortunate enough to obtain accommodation than to the many who have the common sense to make a prior booking. As I have said, therefore, the obligations of hotel proprietors under this Bill will apply to all guests whether or not they book in advance.
Section 5 of the Bill provides that it shall be the duty of a hotel proprietor to receive any property brought by or on behalf of a guest for whom sleeping accommodation is engaged and Section 6 provides that he shall be strictly liable for any damage to, or loss or destruction of, such property. I may add that I have carefully considered the desirability of abolishing innkeepers' strict liability for the property of guests. There is no doubt that the historical circumstances which gave rise to the concept of strict liability have largely disappeared; travel nowadays is very much easier and more common than it used to be and travellers are no longer exposed to danger from highwaymen in league with dishonest innkeepers.
At the same time, it seems to me that there is still good reason why a proprietor, who holds himself out as willing to provide food and lodging for all comers, should be under a special obligation in regard to the safety of the goods which guests bring with them and upon which, in return, the proprietor has a lien for his charges. The tourist or other visitor is today, as much as in the past, exposed to the risk of loss through negligence on the part of the hotel proprietor or his servants, but it would often, by the nature of the case, be difficult, if not impossible, for him to prove negligence, as he would have to do if strict liability were abolished. In the case of travellers from overseas, of whom there are a large number nowadays, the difficulty of seeking legal redress against the proprietor would be even greater.
On the whole, therefore, I am satisfied that it is desirable that the principle of strict liability should be retained. I am fortified in this view by the fact that the principle is accepted in most Western European countries. Indeed, the principle has now been so long enshrined in most legal systems throughout the civilised world that it would be revolutionary to abolish it. If this country were to do so, visitors to Irish hotels would be placed in a far less favourable position than in other European countries and there is little doubt that such a situation would react unfavourably on the tourist industry here.
As I have already mentioned, the existing common law obligations of innkeepers are confined to travellers. Whereas formerly this term was interpreted as meaning persons who stayed overnight at the inn, in the course of time the meaning has been altered to include casual visitors who call merely for a meal or a drink. It has been argued that the obligations of innkeepers in respect of property should only apply to the guest who stays overnight and that it is unreasonable to extend these obligations to the property of a casual visitor. I must say that I find myself in agreement with this viewpoint. Indeed, the present law has led to the anomalous situation wherein a person having a meal at a hotel is indemnified against the loss of any property which he brings with him, including a motorcar, but is not so indemnified if he eats at a restaurant. To remove this anomaly and to restore the law to what was clearly originally intended, the obligations imposed on a hotel proprietor by Sections 5 and 6 of the Bill will extend only to the property of a guest who has booked sleeping accommodation.
The liability under Section 6, that is to say, the strict liability for loss or damage, is being extended to property of which the proprietor takes charge outside the hotel, as, for example, where he sends a servant to collect the luggage of a guest from a railway station. This proposed alteration is a logical one and is being made in order to bring the provisions of our law into accord with the Council of Europe Convention governing the liability of hotel keepers.
In so far as a motor vehicle is concerned, an important new safeguard is being provided for the hotel proprietor in that his liability for loss or damage will not apply unless he has been previously notified that the vehicle has been brought to the hotel. I ought, perhaps, to mention that in this respect the method of approach in this Bill differs from that in Britain under the Act of 1956. There, motor vehicles have been removed altogether from the scope of strict liability. This was done on the basis of recommendations made by the Law Reform Committee which argued, first, that there is a substantial difference between a car which, unknown to the hotel proprietor and contrary perhaps to his instructions, may be left in a car park by a casual visitor and other property which may be brought into the hotel by a guest. Secondly, cars are generally already insured against loss or damage.
On the first point, I do not accept that there is any logical distinction between a motor car and the other property of a hotel guest. Strict liability applies only in respect of property brought within the precincts of the hotel. I can see no justification for distinguishing between cars and other property in the matter of the application of strict liability, especially as this liability will, under the Bill, be confined to the property of guests staying overnight. The argument that cars are usually insured against loss or damage is irrelevant. The issue to be determined is the fundamental one of where liability ought justly be placed. My view is that this must be settled on general principles independently of the relative abilities of the parties to meet the liability.
Under existing law, there is some doubt whether an innkeeper's liability for damage to the property of a guest is on the same footing as his liability for the loss of that property. Section 6 of the Bill remedies this position by making it clear that the liability extends to damage, loss or destruction. For the avoidance of doubt the Bill goes on to make it clear in Section 11 that the Accidental Fires Act, 1943, does not apply in relation to any claim for damages by a guest who invokes the strict liability of a hotel proprietor. That Act provides that a person who suffers damage by reason of fire accidentally occurring in or on the building or land of another person shall not be entitled to claim damages against that other person. In a fairly recent Circuit Court case it was held that by virtue of the Act of 1943 a hotel proprietor was not liable to a guest for damage caused by accidental fire occurring on the hotel premises. I am satisfied that the Act was never intended to apply in circumstances of that kind. Hence the need for Section 11 of the Bill.
The strict liability of a hotel proprietor will not apply where the damage to, or loss of, property can be shown to be due to an unforeseable and irresistible act of nature or an act of war. This follows the existing common law rule. Where there is contributory negligence by the guest the position will be governed by the Civil Liability Act, 1961, which provides for the apportionment of liability in such cases having regard to the degrees of fault of the plaintiff and the defendant. Where the court finds that the defendant, that is, the hotel proprietor, is guiltless of what may be called moral fault, while the plaintiff, or guest, is guilty of negligence, the whole loss will be borne by the latter. Thus, for example, if a guest negligently leaves valuable jewellery exposed and unguarded in his bedroom and it is stolen by another guest, the hotel proprietor will have a complete defence. Similarly, if a guest leaves his motor car parked carelessly on the drive-way up to a hotel instead of in the car park set aside by the proprietor for the purpose and the car is subsequently stolen, the court would almost certainly hold that the entire loss should be borne by the guest.
Section 7 of the Bill increases from £30 to £100 the existing limitation on innkeepers' liability in certain cases, and provides for a new limit of £50 in respect of any one article. These changes are clearly desirable in view of the fall in the value of money since the Innkeepers' Liability Act, 1863, was enacted. The new limits are further more necessary in order to bring the law here into conformity with the provisions of the Council of Europe Convention to which I have already alluded. As under existing law, the limitation will not apply to motor cars or property which is deposited with the proprietor expressly for safe custody or property which is damaged or lost through the negligence of the proprietor.
In order that a proprietor may obtain the benefit of the limitation conferred by the section a notice in the form prescribed in the First Schedule of the Bill will have to be displayed conspicuously in the hotel premises. Deputies will observe that the notice will require to be in both Irish and English. Some proprietors may consider it desirable to have the notice in other languages also and there is, of course, nothing in the Bill to prevent their adopting such a course. The new notice will replace the notice at present required to be exhibited under the Act of 1863 which is, in effect, a copy of Section 1 of that Act and is usually embellished with the escutcheon which appears at the head of every British Act of Parliament, namely the royal coat-of-arms. Thus, not the least of the reforms which the Bill will effect will be to ensure that the present anachronistic document will be replaced by a suitable notice prescribed by the Oireachtas.
Under existing law, the proprietor of a hotel is under a duty to take reasonable care of the person of a guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them. It is obviously desirable that this duty should be preserved and provision to that effect is made in Section 4 of the Bill.
As I mentioned earlier, the duty of innkeepers to receive travellers and their property is an obligation under the criminal law as well as a civil responsibility, and an innkeeper who fails to fulfil that duty commits an offence for which he may be indicted. While the threat of civil proceedings is likely to be sufficient in most cases to ensure that hotel proprietors will fulfil the duty in question, circumstances may arise in which, on the grounds of public policy, the State would wish to be able to enforce fulfilment of the duty. Accordingly, Section 12 of the Bill preserves the existing obligation under the criminal law but provides that offences shall be tried summarily instead of by indictment.
I believe that this Bill will have the effect of bringing Irish law relating to inns and innkeepers into closer accord with modern social needs and conditions. It will also serve to bring our law into closer conformity with that of most continental countries, and, in the process, will enable us to ratify the Council of Europe Convention on the liability of hotel keepers. Deputies will readily appreciate that unification and harmonisation of law in this particular field is most desirable from the point of view of the development of international tourism. Finally, the Bill will fulfil the important function of clarifying and re-stating the law in a single, comprehensive, modern statute which will obviate the necessity to refer to previous enactments. We are, in fact, codifying the law.
I have endeavoured to deal with the main principles which arise under the Bill and I trust that what I have said, coupled with the information contained in the Explanatory Memorandum, will facilitate Deputies in their examination and assessment of the Bill.
Before I conclude, I should like to express my appreciation of the assistance afforded to me in connection with the preparation of the Bill by the Council of the Incorporated Law Society who submitted an excellent memorandum dealing with the existing law and making suggestions as to the manner in which it should be amended.
I commend the Bill to the House and ask that it be given a Second Reading.
