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Dáil Éireann debate -
Tuesday, 1 Jun 1993

Vol. 431 No. 6

Private Members' Business. - Protection of Occupiers of Land Bill, 1993: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

I wish to share my time with Deputies Ahearn and Bradford.

Is that agreed? Agreed.

This is the first Bill that addresses the problem of occupiers' liability. A Cheann Comhairle, may I call for some order?

I am not aware of any great disorder.

The law that has developed in relation to occupiers' liability includes premises, buildings and so forth. The scheme of this Bill is to confine the matter to land, except in relation to other structures that are on the land such as posts and fencing as well as buildings that would be purely subsidiary and ancillary to the land.

The Bill deals with both trespassers and those who are allowed on to the land with the occupier's permission, but with no material benefit for the occupier, such as, members of gun clubs, hunters, anglers, bird watchers and so on. Under the Bill the occupier of land will have no responsibility for trespassers, but he would not be entitled to intentionally harm a trespasser except in necessary self-defence, defence of another, or in defence of his property. He must not set traps for a potential trespasser.

For those who are on the land with the permission of the occupier, that occupier shall not be under any obligation to the individual except that he shall be obliged to give warning of the existence of any concealed dangers which exists on the land and which are actually known to the occupier.

There has been a strong campaign for reform in recent years by many national organisations. David Butler, chairman of the IFA's national industry and environment committee in a statement recently stated:

In all cases the financial viability of Irish farms is becoming such a distressing issue that it is imperative that further impositions and perceived threats to Irish farmers be alleviated by immediate reform of the law on occupiers liability.

Donal Murphy, General Secretary of the ICMSA also in a recent statement said:

Our position is that we want the legislation to exempt farmers, and, indeed, all property owners, from any liability, or any duty of care to any person on land, or other property, without the owners permission.

On 1 April this year, Alan Gillis, President of the IFA at a public meeting on occupiers liability at Ballyvaughan, County Clare said:

The failure of successive Governments to seriously address this outdated law on occupiers liability has forced farmers and other landholders into the corner, where they have been left with no alternative, but to limit access to their lands.

This trend will have major implications, not only for the tourist industry, but also for many local sporting organisations and individuals such as gun clubs, bird watchers, hunters, walkers, fishermen, archaeological and historical societies, and so forth.

If the present law continues, most landowners will have to chosse between allowing access on to their property and running the risk of civil claims for breach of the common duty of care, or on the other hand, refusing access. The tendency in recent times is to refuse access and this seems to be the trend right across the country.

There is a growing demand both on the domestic and European market for activity-oriented holidays in natural surroundings. The report of the tourism task force, published in 1992, identified the excellent potential to position Ireland as an activity/special interest destination. It highlighted also the growing interest in nature and ecology reflected in a greater demand for environmentally friendly holiday experiences.

If access on to land is limited by landholders because of the fear of being sued the potential for Ireland as a major destination for activity type holidays could be seriously impaired.

The purpose of section (3) of the Bill is to reverse this trend by enabling landowners to permit recreational, or educational, access on terms which will exempt them from most of the liability to the entrant. This view is supported by the National Association of Regional Game Councils, which has a total membership of 20,800 involving 854 gun clubs. The following is an extract from their recent submission to the Law Reform Commission on occupiers' liability:

In amending legislation on occupiers' liability we suggest that a clause be inserted to allow that sportsmen who enter land to pursue their sport do so at their own risk.

A spokesman for the Association of Adventure Sports, outlined his organisations position recently:

A landowner should have no duty of care for anyone crossing his property for recreational purposes, provided: (a) no admission charge is made by the landowner and (b) no positive action is taken by the landowner to cause injury to the recreational user.

This supports my approach to the problem.

The report of the Green 2000 Advisory Group presented to the Taoiseach, Deputy Reynolds, in February 1993 made several references to the reform of the laws relating to occupiers' liability. Page 17, section 1.8 of that report states: "Laws relating to the liability of landowners are vague and should be clarified". This recommendation was repeated in page 88, section 58.

On page 282, section 5.11, strong recommendation was made that, "the laws relating to occupier liability are inadequate and it is vital that these matters be addressed as soon as possible".

The concern about safety on land is a real one. Land is often naturally dangerous, particularly where there is open water and, of course, modern farming methods including the use of machinery and plant which are also dangerous. In addition for management purposes, it may be necessary, for example, for gates not to be securely anchored. Stone walls and fences are by their nature at times insecure and can be dangerous for the individual crossing over them.

Freedom of access to historical sites and national monuments is also at risk. Two of the most important historical and archaeological sites in the Burren region have been fenced-of to visitors — Leamnaneh Castle and Portnabrone Portal-Dolmen probably the best known megalithic grave in Clare.

Also, Cahercommaun Stone Fort and Fiddaun Castle across the border in County Galway have been fenced-off. Indeed, throughout the Burren the signs are ominous. Signs stating, "Trespassers will be prosecuted" and "no trespassers allowed" are now common features of the Burren district. This is a serious development and I am convinced is a source of no comfort to the farmers involved. The farming community has traditionally been welcoming and has shown great generosity towards tourists and other users of the Irish countryside for sporting and recreational purposes. Indeed, as Alan Gillis said recently: "This attitude of help and co-operation has been an integral element in the success of the Irish tourism industry".

The fault, does not rest with the farming community. The failure of this House to enact legislation to protect landowners from legal action will eventually close the Irish countryside, not only to tourists, sporting and recreational organisations, but also to our growing and expanding urban population. This will have major implications for the future of Irish society.

Certain elements in the legal profession claim that the whole question of occupiers' liability has been blown out of all proportions by the farming organisations. However, I am convinced that the concerns of landowners about the potential financial and legal risks which they face are fully justified. We are living in an environment with an ever increasing litigation mentality. Clear evidence for this can be seen from the dramatic increase in personal injury claims being brought against the property owners in the State such as local authorities, State agencies such as the ESB and CIE, golf clubs and so forth, which have all reported a serious rise in the numbers of claims and the amount of individual claims.

Premia taken out by farmers for public liability reflect the potential risks faced by the insurance companies. The removal of some of these risks hopefully would have the effect of preventing these premia from increasing to unsustainable levels. Indeed, many farmers do not have public liability insurance which places them in an invidious and vulnerable position. It is inequitable that a landowner should be forced to insure against the uninvited public coming onto his land. In short, the law needs to be reformed.

To put the whole matter into perspective, should a landowner be liable in law for an injury or accident sustained by an individual who is on his land for the purposes of poaching, stealing the landowners' livestock or any other activity? The answer, clearly, is that the landowner should not be responsible for any inquiry sustained to such an individual. Unfortunately, as the law stands, the landowner is potentially liable to a trespasser whose presence is foreseeable, in circumstances where injury to that person is foreseeable and where the landowner failed to take a reasonable care to prevent that injury.

Before dealing with its specific provisions, I will refer briefly to the background of the Bill. The duty imposed on persons who occupy land derives from the common law. The law of occupiers' liability is yet another monument to the inactivity on the part of the Legislature which should have acted in this critical area long before now, our failure to act has meant that the law in this area is to be found in a number of case decisions. These court decisions are often conflicting and though they may achieve justice between the parties, it can often be at the expense of adding confusion to an already confused area of law.

Previously, the common law recognised three categories of persons who may find themselves on the lands of another, namely, invitees, licensees and trespassers. The duty imposed by law depends upon which category the persons fall into. Invitees must be warned of unusual dangers on the land or premises of which the occupier is aware or ought to be aware.

Licensees must be warned of concealed dangers of which the occupier is aware. No duty was owed by the trespasser; however, he or she could not be intentionally harmed by the occupier. These categories are in accordance with what the average person in the street would instinctively feel was the law as it ought to be. However, as a result of a number of decisions the clarity of the common law was thrown into confusion.

The principal problem which this Bill seeks to address is the duty owed to trespassers. The common law position was clear. However, in a number of celebrated decisions the courts have held that the duty of care owed to all entrants, including trespassers, is akin to the general duty in the law of negligence, that is the duty to take reasonable care. The facts of the cases that have given rise to these decisions are in general tragic. They involve infants wandering into electricity sub-stations or onto railway tracks and receiving severe injuries. On a human level one could not quarrel with the decisions in these particular cases but the problem is that the principles laid down in these cases apply far beyond the particular circumstances of a seriously injured child. The net result of all this is that arguably a trespasser is in too strong a legal position. Such a situation offends against common sense and basic fairness. We cannot leave it to the courts to solve this problem. A court can only deal with the facts of the particular case before it. It cannot take an overall view of the law as it ought to be and so apply it. This is a problem which only the Legislature can solve.

Another separate difficulty emerging is that there is now some doubt over the very existence of the categories to which I referred. Some recent court decisions suggest that these categories are now redundant and that the general principles of negligence, as laid down in the Donoghue v. Stevenson case, apply to occupiers of land. If this became the established law, it could impose a very high standard of duty on occupiers of land, a duty which would be reflected in higher insurance premia and an increased number of claims.

The Protection of Occupiers of Land Bill, 1993, seeks to bring clarity to the confusion that has arisen. The Bill will put into statute what was previously the common law position. The duties owed to licensees and trespassers are clearly stated in unambiguous terms. Invitees are not included in the Bill. Basically, the duty owed to an invitee was a high one. The occupant had to protect the invitee from unusual danger of which the occupant was aware or ought to have been aware.

This Bill is to the benefit of the occupiers of land in so far as it states the duties that they owe. It is also of benefit to the licensee and the potential trespasser as they know exactly what duty is owned to them and it acts as a disincentive on the part of a trespasser to bring a speculative claim against the occupier of land.

In Britain and Northern Ireland the law on occupiers' liability has been updated and defined by statute law. The Occupiers' Liability Act, 1957, imposed a duty on an occupier to take reasonable care for the safety of lawful visitors including invitees and licensees.

Section 2 (1) of the 1957 Act states that an occupier of premises owes the same duty, the "common duty of care" to all his visitors, except in so far as he is free to, and does extend, restrict, modify, or exclude his duty to any visitor or visitors by agreement or otherwise. The 1957 Act did not deal with the question of trespassers. We must look at the Occupiers' Liability Act, 1984, to seek the standard of care owed to a trespasser. According to section 1 (i) of the 1984 Act the question is whether "any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises, or so things done or omitted to be done on them".

Section 1 (3) of the 1984 Act provides that an occupier owes a duty in respect of such a risk if (a) he is aware of the danger, or has reasonable grounds, to believe that it exists; (b) he knows, or has reasonable grounds to believe that the other is in the vicinity of the danger and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

Section 1 (5) of the Act states that any duty owned by virtue of this section in respect of risks may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk. In this section of the 1984 Act it seems that a clear warning of the risk will usually discharge liability in the case of a trespasser.

The Occupiers Liability Act, 1957, as interpreted by the courts, has been a noticeably successful measure of law reform. It brought certainty to an area of law previously characterised by technicality and uncertainty. The 1984 Act has not been as successful even though it does pitch the duty to the trespasser at a lower level and also limits the level of damages which the plaintiff may claim. However, in some cases the provisions in the Act are breaking down because courts have deemed the warning signs to be inadequate or placed in the wrong location and so forth, with the result that the responsibilities were passed back to the property owner. For this reason, I decided against taking the same legislative road as that taken in the 1984 Act in England. The provision in section 3 (2) of the Protection of Occupiers of Land Bill, 1993, relating to trespassers is certain and clear-cut. It provides clear legal guidance for farmers and other landowners about their rights, obligations and potential liability towards entrants onto their lands.

The national farming associations have received several commitments from the Minister's predecessors regarding the introduction of legislation on occupiers liability. The Taoiseach, Deputy Reynolds, gave a commitment in January 1992 to introduce legislation to reform the law during the term of the Programme for Economic and Social Progress. This commitment was reiterated by former Deputy Pádraig Flynn in March 1992 when he was Minister for Justice. As the Programme for Economic and Social Progress will end this year, your time is running out to introduce legislation on this subject.

The most recent commitment was given by Minister Charlie McCreevy on Wednesday, 19 May to Mr. Alan Gillis. He told the IFA leader that he favoured the association's proposal that there should be no liability for trespassers or anyone else entering the land with a farmers' permission where no commercial charge was being made. If Minister McCreevy is consistent he will have no option but to support this Bill.

On behalf of farmers and other landowners I appeal to the Minister to accept this simple but comprehensive legislation which is designed to take the terror out of the whole question of occupier's liability. I appeal to him to allow the Bill to go to Committee Stage where it can be amended if necessary and, in the interests of law reform and openness, to accept the Bill. I received widespread support for the Bill from all the national farming organisations and from Deputies on all sides of this House, including those in the Government party. I see no reason why this Bill cannot go to Committee and amended if necessary. I do not claim it is the perfect solution but it is what most people want. It is simple but it would be effective and would satisfy the demands of all organisations, including the main farming organisations. I appeal to the Minister to carefully consider the Bill.

First, I congratulate my colleague, Deputy Deenihan, for introducing this Bill to the House. Sadly, absolutely nothing would have been done in this area and the Government would have continued to ignore this serious issue were it not for the initiative taken by Deputy Deenihan in introducing this Bill. I can only hope that his action will at least focus the Government's attention on the alarming consequences of the present legal position in regard to public liability and spur it on to accept this Bill graciously.

The lack of protection for landowners has been the cause of endless sleepless nights and of constant worry and unrest for many farmers who do not know when a claim will be made against them which would ultimately put them out of business. Under present legislation landowners pursue their business activities with a lethal death sentence hanging over them, a sentence which they cannot avoid, for which they have committed no offence and from which they have no legal protection. That landowners are responsible for injuries incurred on their property to people whom they have not invited on to it and whom they never knew entered their property is ridiculous. The neglect and disinterest shown by successive Governments in confronting this serious issue of public liability is inexcusable and inexplicable. The lack of urgency by the Government in addressing this grave injustice to landowners is nothing short of criminal.

The basis of our judicial system is that a penalty must fit the crime. Yet landowners are subject to the most severe penalties without having committed any crime. It is inconceivable that a farmer could lose his entire farm as a result of a claim made against him. Everybody here knows that the landowner's liability law is outdated and archaic. The mystery is that many more landowners have not paid the ultimate price of being forced out of business as a result of the present system. I must warn that the fact that this is so does not mean it will not happen in future, and immediate steps should be taken to update this law.

The need for a change in the law is very urgent. We must realise that farming methods have changed and are continually modernised, resulting in more and more machinery in every farmyard, newer and better technology methods to cope with farm effluent and faster and better ways of production. However, great are these new methods, they all have one thing in common: they are a threat to farm safety, and the potential for serious accident is greater than ever. Surely it should be sufficient for a farmer to try to ensure the safety of his family and workers, who at least appreciate the inherent dangers in modern farming methods, rather than having to cope with the intrusion of those who have little or no understanding of the potential dangers.

All farmers have become more safety conscious. A tremendous awareness programme was initiated as a result of an excellent safety campagin by the farming organisations and Teagasc. Nevertheless those of us involved in farming know that this message will seep through only to those involved in agriculture and will never be fully appreciated or realised by those outside the industry. It is difficult for farmers adequately to impart safety awareness to trespassers. Despite superhuman efforts on the part of landowners to pursue the utmost safety precautions, they may nevertheless become the victims of injuries incurred by uninvited persons who, due to a lack of appreciation of the dangers involved, fail to realise the pitfalls.

It is crystal clear that the law needs to be updated but no-one was prepared to take the initiative until Deputy Deenihan, on behalf of Fine Gael, took the time and trouble to prepare this Bill and present it to the House. Not only was there inaction by the Government on this matter but the Law Reform Commission delayed and procrastinated in revising the outdated landowner's liability law. That this body, like the Government, put this issue on the back burner, is clearly worthy of the most severe criticism. I would remind the Minister that a commitment was given, as outlined by Deputy Deenihan, by the Minister for Justice in December 1991, that a discussion paper would be prepared so that legislation to reform this law could be placed on the Statute Book before the expiry of the Programme for Economic and Social Progress in 1993. As we are all aware, no progress was made. Those who are appalled by the lack of urgency in this area are well justified——

The Deputy is referring to the previous Government.

The lack of revision of the landowner's liability law is jeopardising job creation in tourism, sport and business interests in rural Ireland. I take it from the Minister's remark that he is going to impart good news to us this evening. The threat to landowners from personal injury claims could close down the Irish countryside and could result in serious damage to job creation efforts in tourism and the sport industries. It would take only one serious accident whereby a farmer is greatly affected by a liability claim from an unwelcome visitor or trespasser to realise this scenario.

We must recognise the outstanding co-operation of landowners, even under these circumstances, in allowing people onto their lands. The farming community should be able to welcome the many sporting and outdoor leisure pursuit organisations onto their land without continued exposure to a clearly unfair liability. Frustration at the Government's failure to address this issue seriously has in many cases forced farmers to fence off important historical sites on their lands. Deputy Deenihan mentioned instances of this. As awareness of the extent of the dangers of the lack of legal protection grows, a worsening situation will develop. I understand that at least four sites have already been fenced off and the implication of this trend is disastrous for the tourist industry.

It must be recognised that landowners do not wish to be forced into this corner of refusing entry because of the Government's inaction in introducing vital changes to an outdated law. For generations farmers have welcomed visitors to historical sites on their lands but the continuing threat of personal injury claims is totally unacceptable to them. This Bill is the solution to this serious problem. It ensures that owners of land will no longer be liable for injuries to trespassers and others. It deals very adequately with trespassers and those who are allowed onto the land with permission, but with no material benefit to the occupier, such as gun club members, hunters and anglers. The Bill is comprehensive. It includes an obligation on the occupier to give warning of the existence of any concealed dangers on the land which are known to the occupier. It also includes a section which states that the occupier cannot intentionally harm a trespasser except where necessary in self-defence, defence of another or in defence of his property.

As Deputy Deenihan said, the Bill has been welcomed by the two main farming organisations who have congratualted him for initiating this reform of the law. The Government should accept this Bill but no doubt it will be rejected on the usual spurious grounds that it is flawed. The majority of Opposition Bills seem to be flawed in the eyes of the Government yet we are never told where they are flawed. The Government must accept this Bill as the answer to the problem as it is accepted by those who are affected by the law. They are the judges. Surely the Government is embarrassed by its inaction. I doubt if it will further embarrass itself by rejecting this Bill. The present law can be viewed as a liquidator or sheriff looking over a landowner's head and if something goes wrong he can strike at any time and take it all away.

Unfortunately, as the Minister knows, we live in a time where to sue at all costs is an acceptable standard of behaviour. We have become obsessed with suing and it generally leads to a handsome reward. This does not help. As we speak tonight, landowners can be sued for something for which they have no responsibility and over which they have no power. It is amazing how emergency legislation can be swiftly introduced when the Government considers it necessary but there is no such haste to update the public liability laws. Obviously farmers and landowners can wait. They are not part of the golden circle whose interests must be protected at all costs.

Landowners want justice and justice is expressed in this Bill. I hope that after tonight landowners can rest easy knowing that some action is being taken to protect their interests and to protect them from the results of the present law which could devastate their lives.

I fully support the legislation and I, too, praise Deputy Deenihan for his efforts in this regard. Deputy Deenihan is very much aware of the damage which is occurring to the tourist industry because of the lack of legislative change in this area. This Bill will be good news to the farming community if it is accepted. Farmers live in daily fear of the situation that could arise if a trespasser is injured and resorts to the courts. Under the present system the claim could result in a farmer having to sell his land to pay legal costs. That is entirely wrong. It is amazing that this problem has not been properly addressed. We all have a reasonable idea of what an acceptable solution would be yet little has been done. It is no wonder that the public are cynical about politics and politicians when a relatively simple problem cannot be addressed. How can we solve complex problems, with regard to unemployment and emigration when we do not solve problems which we can solve? Varying interest groups are demanding the type of legislation introduced by Deputy Deenihan.

In this era of Dáil reform, new committees and open Government, the Government should be more than willing to accept legislative initiatives from Opposition parties. We were elected to assist in the running of the country and not simply to oppose the Government. When we bring forward constructive legislation the least we can expect is a constructive reponse from the Government. It is difficult to speak in advance of the Minister, but if the rumours we hear are correct, this Bill will be rejected. I hope the Minister will surprise us and be positive, unlike his colleague a fortnight ago on the refugee protection Bill. I hope the Minister will not come up with a meaningless excuse in order to put this vital legislation on the back burner.

Nowadays there is a claims mentality and for every fall there is a ready legal redress. Because of that mentality, small property owners live in fear not just of the physical danger posed by trespassers but of the financial penalty which might arise. This is a ridiculous situation. Every visitor and every trespasser poses a possible minefield of litigation and expensive compensation, for the unfortunate landowner. The result of our ineffective legislation is that landowners live in fear of trespassers and we have a total disincentive to rural development, tourism and employment. Who would want to set up a small project bringing visitors to farms and so on if it involved negotiating a legal minefield in the event of an accident?

As Deputy Deenihan said, many areas of tourism interest have been fenced off and places are closing down because the landowners are worried about the financial penalty which might arise if a visitor is injured and litigation ensues. People are demanding Government action and are most disappointed that there has not been an adequate response to date.

I accept that the Minister has not been in office very long and we do not expect all solutions to be forthcoming overnight. Nonetheless, the least we might expect is that the Minister would respond reasonably positively to this Bill, indicating his willingness to accept its spirit.

As Deputy Deenihan said, no doubt amendments will be required which can be dealt with on Committee Stage. I hope the Minister will be reasonable, positive, far-seeing and take a step in the right direction. We all recognise that such is required, when rural areas, tourism and so on all will benefit.

I thank Deputy Deenihan for giving the House the opportunity to debate the subject of occupiers' liability. I assure the House that I will give very careful consideration to all views expressed on this important subject. The Government is committed to reform of the law relating to the liability of occupiers for injury resulting to persons on land or other property. The Programme for a Partnership Government makes that clear and a commitment was, of course, given in the context of the Programme for Economic and Social Progress.

Undoubtedly, there is consensus on the need for change in this area. Representatives of the farming community in particular have been seeking such change. The issue is what form the change should take so that the right balance can be struck between the interests of the occupiers of land and those of other persons who enter the land. The law on the matter is complex, and is not without some controversy. Based as it is on common law rules, as distinct from rules laid down in statute, it has undergone fundamental changes arising from decisions of our courts.

I appreciate and share some of the concerns which have prompted Deputy Deenihan to initiate this Bill. Deputy Deenihan and other Deputies will know that the Law Reform Commission is currently examining the law of occupiers' liability. It was precisely because of the complexity of the law, the state of its development, the range of opposing interests and the need for comparative studies to take into account the position in other countries, that the matter was referred to the Commission early last year. The House will be aware also that the Law Reform Commission intends to issue a consultation paper in the very near future with a view to informing interested persons and groups and to invite submissions from them. I must confess that I find it just a little surprising in the circumstances, therefore, that Deputy Deenihan should at this stage press his Bill to a full debate by the House without the benefit at least of having the commission's paper on the subject.

I am given to understand that the commission will shortly publish its paper. As soon as the consultation paper is published, I will act immediately to prepare my proposals for legislation on the subject, taking into account the views expressed in the House, the commission's paper as well as the considered views of interested groups. I shall then submit my proposals in the matter to Government as quickly as possible.

Because the Law Reform Commission's paper is not yet available I am not in a position to indicate whether I would be prepared to support a change in the law along the precise lines suggested by Deputy Deenihan. The Government is not therefore in a position to give its support to the Bill at the present time.

I would like to be as constructive as possible in relation to Deputy Deenihan's Bill, so I would put it to him that next week he might consider proposing an adjournment of the debate on the Bill so that I can have an opportunity to study the Law Reform Commission's paper, when it is published. If, after that examination, the Government decides that a proposal along the lines of his Bill is appropriate, we can then come back to the Bill. If, on the othe hand, the Government's view is that the issue requires a different or a more detailed basis than this short Bill, the House has my assurance that I will bring forward the necessary proposals as soon as possible.

If Deputy Deenihan insists on pressing his Bill to a vote the Government will oppose it for the reasons I have outlined. As I have indicated, I nonetheless welcome the opportunity to have this debate. In developing my own proposals on the subject. I will give most careful consideration to the views of speakers on all sides of the House.

Might I proceed by outlining to the House, if only briefly, the existing law on this issue. In doing so I hope to demonstrate the particular context within which change is being sought in this Bill.

Apart from contractual entrants, where the general rule is that the rights of such persons are to be regulated by reference to contract, persons who enter onto property have traditionally been classified into three categories — invitees, licensees and trespassers. The law on occupiers' liability is concerned with the duty of care that is owed by occupiers to those categories of persons.

In general terms, a person is an invitee where his presence on the property is likely to convey a material benefit upon the occupier, for example, a person who visits a cinema. Here, the duty of the occupier is to use reasonable care to prevent damage from unusual dangers of which he knows, or ought to know.

By contrast, a licensee is a person who is permitted to be on another's land but whose visit does not materially benefit the occupier, for example, a person who makes use of a public park or playground. The occupier's duty in this case is essentially to warn of concealed dangers of which he is aware.

A trespasser, on the other hand, is a person who goes onto property without an invitation of any sort and the duty of care of the occupier was for some time limited to not injuring the trespasser by intentional or reckless conduct. A problem with this particular rule is that it automatically assumed that a trespasser was a person of lawless intent. It did not make allowance for the fact that in many instances trespassing might be quite an innocent activity, wholly devoid of malice. In this context, the position of children who stray on to the land, attracted perhaps by some natural feature such as a tree or water, is of especial relevance.

These rules of the common law have determined the status of entrants to property and, in turn, have marked the limit of the occupier's duty towards them. The rules, because of their apparently strait jacketed approach, were liable to cause injustice in particular circumstances. Perhaps it was not surprising that it was in a case involving injury to a child that our courts have in recent years altered those rules. I refer to the judgment in 1974 of the Supreme Court in McNamara v. Electricity Supply Board. In that case the Supreme Court gave careful consideration to the legal basis of any duty which a defendant might owe in cases generally of trespass. Following that judgment the occupier is now regarded as owing a duty to trespassers whom he could reasonably foresee and the duty is to take such reasonable care as the circumstances demand. The effect of the judgment has been to elevate the duty of care owed to trespassers — adults as well as children — to a much higher level than was previously the case.

In arriving at their decision, the Supreme Court referred approvingly to an earlier Irish case from the late sixties —Purtill versus Athlone Urban District Council. A passage from the judgment of the court in that case, delivered by Mr. Justice Brian Walsh, helps to inform us of the key considerations which led to the decision to the McNamara case. That passage reads as follows:

When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather is it based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts. What amounts to sufficient care must very necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.

In the McNamara case, the court did not explore the issue as to whether a similar duty applied in relation to other categories of entrant such as invitees and licensees and subsequent cases have not brought about a clear resolution of this matter. The traditional three-tier category of invitee, licensee and trespasser has not been displaced as the criterion on which the level of care or the standard of safety is based.

We therefore have a situation where the law has evolved as a result of various court decisions in the last few decades. The bulk of those decisions have dealt with the position of trespasser and, for the present at least, may suggest that trespassers could be entitled to a higher duty of care than other more lawful entrants onto land. Inevitably, this uncertainty has caused landowners, farmers in particular, to fear that they may become the focus for a substantial damages claim not only in relation to trespassers but also in relation to other categories of entrants.

However, farmers' worries may have been lessened to some extent by a decision of the High Court in 1991. The case involved two members of a gun club. One was covered by an indemnity scheme and had express permission to shoot over the farmer's land. The other was not so covered and had no such permission. The uninsured party injured the other who then sued his own gun club, the person who caused the injury and also the farmer. The case against the farmer was on the basis that he should have ensured that person's shooting on his land were insured. Giving his decision on a motion to exclude the farmer as a co-defendant the judge said that his view was that the farmer as owner of the land would be liable as he had habitually allowed a dangerous activity on his lands to take place and would have to take reasonable care. However, he did not think that, in the final analysis, the farmer could be expected to keep a perpetual look-out to see that people who were not insured did not shoot over his land. The judge accordingly struck out the case against the farmer on that basis.

Notwithstanding this case I am aware of the continuing concerns of the farming community at what they perceive to be the degree of uncertainty in the present law. I took the opportunity to discuss those concerns at meetings which I have had with the IFA and ICMSA and I shall be taking them into account in the context of the preparation of my proposals for legislation on the matter.

The issue, as I said earlier, is the path of reform which we should choose to follow. The law here is governed by decades of common law tradition and it is clear that this tradition is no longer serving us as well as it might and that appropriate statutory intervention is necessary to clarify matters.

There are models for reform in other jurisdictions which help to inform on this important topic. The model which exists in England, and which has been followed to a large extent in a number of other common law countries, would seem to be working with a reasonable degree of success.

The main change effected by the Occupiers' Liability Act of 1957 in England was to replace the rules of the common law under which the duty of an occupier differs according as the visitor is an invitee or a licensee. The Act provides that the occupier of premises owes the "common duty of care" to all his lawful visitors, that is, a duty to take such care in all the circumstances of the case as is reasonable to see that the visitor will be safe in using the premises for the purpose for which he is permitted or invited to be there.

That Act did not deal with the question of trespassers. Indeed, the law in England, as in Ireland, in relation to trespassers was radically changed in the seventies by decisions of the courts. Eventually the position in England was put on a statutory footing by the Occupiers' Liability Act 1984. Under that Act, if the occupier has reasonable grounds to believe that a danger exists on his premises, and the consequent risk is one against which in all the circumstances he may be reasonably expected to offer some protection, then he will owe a duty to trespassers whom he has reasonable grounds for supposing may be in the vicinity. The duty is essentially to take such precautions as are reasonable in all the circumstances to see that they do not suffer injury.

The approach under the English 1957 and 1984 statutes offers a good deal of flexibility in that the duty of care varies with the circumstances of the case and the law always recognises that a child will be less careful than an adult and that an adult will be alert to any special risks incidental to his visit. Under the legislation, it is also open to non-business occupiers, or business occupiers who allow visitors to enter free of charge to historic sites, for example, to exempt themselves from liability. There are also provisions which relieve a landowner from liability in respect of risks which are willingly accepted by persons going onto the land.

The provision in the 1957 Act regarding warning notices was also applied by the 1984 Act to trespassers so that the duty owed by occupiers to trespassers can be discharged in appropiate cases by notices on the land.

A legislative model which has attracted some support among the farming community is that which operates in the American state of Illinois. In essence, landowners there who allow someone onto their land for recreational purposes do not have to take special measures to protect that individual from harm. Nor is the landowner liable for any damages or injuries the individual may suffer.

From the foregoing, it is clear that there are different ways in which the issue of occupiers' liability can be tackled. I have no doubt that, consequent upon the publication of the Law Reform Commission's consultation paper, other ideas will also be put forward as meriting exploration and examination. I have in mind the position in particular as it operates among our EC partners. In the EC context we already have a common system of laws in relation to product liability and, although admittedly occupiers' liability may not come fully within the competence of the EC institutions at present, the position in other member states is something which we should take into account as far as practicable in the preparation of our own legislation.

I now turn specifically to the Bill which is the subject matter of this debate. It is traditional for Ministers to say that Private Members' Bills are badly drafted or defective, but perhaps Deputy Deenihan could bear with me if I gently point out some of the difficulties I see with the wording of this Bill. Its main purpose appears to be to overturn the effects of the decision of the Supreme Court in the McNamara case and to replace it with a provision on the lines of the law as it obtained in relation to trespassers before that decision. The McNamara case decided that the occupier owes a duty to trespassers whom he could reasonably foresee and that the duty in such a case is to take such reasonable care as the circumstances demand. The relevant circumstances include the degree of care which would ordinarily be looked for in relation to the trespasser so that the occupier must be prepared, say, for children to be less careful than adults. Section 3 (2) of the Bill provides however, that except where injury is intentional, no duty of care would be owed to a trespasser. No exception, it seems, is made for children. It is a matter for consideration as to whether this should be the approach to take and there are many, I assume, who would have reservations about it.

Section 3 (1) of the Bill appears to do no more than restate the common law rule that the occupier owes licensees a duty to warn them of concealed dangers of which he or she knows. On that basis the licensee must take the land as he or she finds it with all its imperfections and the occupier would have no obligation to make it safe for use by the licensee. Presumably, the purpose of the section is an attempt to rule out the possibility of the general duty of care — based on the ordinary principles of reasonable foreseeability — being applied to licensees by our courts as in the McNamara case. Given that there is some uncertainty in our law as to the liability of occupiers in relation to licensees, I accept that some legislation here appears to be necessary. English legislation has, as I have mentioned, abolished the distinction between invitees and licensees and that is something I am sure that the Law Reform Commission will have looked at carefully. The Bill before the House does not, of course, deal with invitees. It is confined only to licensees and trespassers. However, the distinctions under the present law with regard to categories of entrants are recognised by most commentators as being somewhat arbitrary. They are perceived by many as a relic of a bygone era when they were formulated. I would, therefore, have to ask whether any legislation which hopes to introduce an element of reform into this area should not at least tackle the issue of these distinctions and canvass the question as to whether they should be maintained in a modern society.

Of fundamental importance also on this issue is whether or not that the law should, subject to certain conditions, be brought within the ordinary rules of negligence, as in other common law countries. Should the position of children or other vulnerable groups not be catered for in a way that protects them better than adults? I think also that if we are to proceed with legislation in this area we should try to make its provisions as comprehensive as possible. Indeed, perhaps some measure of codification of the law could be achieved. The Bill lacks entirely any feature of codification. It is no more than an ad hoc measure. The Bill's provision in addition would also sit unhappily with the current body of law in this area because no attempt has been made to reconcile them with the common law rules. The Bill, in fact, is silent on whether or not the rules of common law would still apply, and it would seem to be open to litigants to pursue a case on the basis of either the common law rules or the rules in the Bill in relation to licensees and trespassers.

I should also point out that the scope of the Bill is confined to land but does not take into account that the duty of occupiers is not confined to injuries occurring on land but also extends, for example, to those occuring on vessels, vehicles or aircraft to the extent that they may arise from a dangerous condition of those structures. Again, I should mention that the Bill uses merely the term "occupier" without defining it. It may be the intention under the Bill that the rules of common law would continue to determine who is an occupier but that is not made clear. It should also have been made clear to what extent occupiers would need to have control over the land or structure before they could be made liable.

As I hope Deputy Deenihan appreciates, I make those points not in any way to criticise the Deputy himself but simply to give some of the reasons that I would prefer to study the Law Reform Commission's paper before formulating my formal proposals on an approach to this subject. In addition to farmers and many other occupiers of land and other property, the State has a particular interest in this whole area and not just as an occupier. The valuable amenities of our countryside should be used to the maximum extent possible both for pleasure and for profit. Those amenities inevitably have an attraction for visitors, both domestic and foreign. Therfore, it is in the wider interest of our national economy that these attractions should continue to be available to those who seek them out. There is considerable untapped tourism potential in our national heritage, particularly in the area of outdoor leisure pursuits. Properly utilised, this potential could be a source of considerable revenue to local economies and could underpin, in a vital way, the social and economic cohesion of those communities. I recognise that fact fully.

Regrettably, as more people participate in outdoor leisure pursuites, there is an increasing risk that they will suffer injury in consequence. In many ways, the acceptance of such risks is inseparable from their full participation in, and their enjoyment of, these activities. I fully accept that the growth in this kind of outdoor interest, together with the associated growth in the level of risk which is voluntarily undertaken by the participants, is not reflected in the liability imposed by the law as it currently stands. These are matters also which I am sure the Commission will have taken into account in the preparation of its paper.

In many ways the law as it stands has come full circle. Initially, the law on occupier's liability was perhaps unduly concerned with safeguarding the interest of the landowner and minimising the risks which attached to his ownership of the land. This concern was to be seen in the very narrowly focused framework according to which entrants were classified into a variety of categories, with a different duty attaching to each category, depending on the benefit which he or she conferred on the landowner in question. The question we now ask ourselves is whether this is indeed the approach which we wish to maintain or whether we should go in a direction which has been followed in other common law jurisdictions or do we go further afield. Should not our laws, therefore, offer such flexibility that entrants would be entitled to a level of safety that depends on the particular circumstances of the case rather than a level of safety that is automatically dependent on the class or stratification of the entrant.

While the Government shares some of the concerns which gave rise to this Bill, we are not proposing to support it at the present time for the reasons I have given. Our approach is to await the Law Reform Commission's consultation paper which is to be published within the next few weeks. It is my intention to proceed with the submission of proposals in the matter to Government as quickly as possible after that, taking into account the views expressed in the House, the Commission's deliberations and the reaction to the Commission's paper from interested groups.

I hope it will be possible for Deputy Deenihan to consider favourably the generous gesture I have made and to agree to adjourn the debate rather than press the matter to a vote. This would give me an opportunity to examine the Law Reform Commission's paper which is due in about three or four weeks' time, so that all aspects of the matter can be fully and carefully considered. Perhaps the Bill can be amended. Failing that, we will bring in more comprehensive legislation which I hope will have the approval of all sides of the House.

I wish to share my time with some Fine Gael Deputies.

Is that agreed? Agreed.

At the outset I compliment Deputy Deenihan on introducing this Bill which is long overdue, in the absence of legislation to protect farmers from users of their land. In the past some farmers have paid dearly for people crossing their lands, for example fishermen, shooters or day trippers. If such a person happens to put his foot in a rabbit burrow and breaks his leg or turns his ankle in a cow track he is entitled, under the present law, to bring a case against the farmer for compensation. Many have paid up without even going to court on the understanding that they would have lost.

In the absence of such protective legislation many farmers have taken steps to protect themselves by erecting those very uninviting signs, "no trespassers allowed". That is not an inviting sign for any tourist, bearing in mind that we are described as the land of the 100,000 welcomes. If one sees "no trespassers allowed" signs in many different places along the roadside one begins to wonder where the welcomes are.

Sometimes we may concern ourselves too much with the effects on tourists. We should think a little more of ourselves. There are many sportsmen and women who use the land, for example, people orienteering, walkers, fishermen on their way to lakes and rivers and shooters. Generally, the shooting season is from 1 September to 31 January — a five-month period. For those people who are fortunate enough to live in the more favoured areas where the glorious twelfth is celebrated, they have five and a half months shooting. The glorious twelfth in this case is the opening of the grouse season. That means for five and a half months of the year farmers are under threat of being faced with an injury bill from people who may not have been invited on to the land or given permission to enter the lands. I understand that is the reason this Bill has been introduced. There are a number of definitions in the Bill, one of which relates to the licensee. "Licensee" means one who enters on the land by the permission of the occupier and "trespasser" means one who enters on land without the permission of the occupier. Section 3 (1) states:

The occupier of land shall not be under any obligation to a licensee to make it safe for use....

Does that mean he is under the obligation to the fellow whom he goes not invite, namely the trespasser? Section 3 (2) states:

The occupier of land owes no duty of care to a trespasser but he is not entitled .... to harm a trespasser.....

Does that mean he is entitled to harm the person he has invited on to his land? I understand what Deputy Deenihan had in mind when introducing the Bill but it would be much simpler to state that the occupier of land shall not be under any obligation to a licensee or to a trespasser and that the occupier owes no duty of care to a trespasser or a licensee. Whether invited or not, a man is not entitled to harm anyone, with the exception of self protection.

The Minister said he would heed the contents of the Bill. I expect he will vote accordingly, together with members of his party and his colleagues in Government. I support this Bill and again compliment Deputy Deenihan on its introduction.

(Carlow-Kilkenny): I compliment my colleague, Deputy Deenihan, on bringing in this much needed and long overdue Bill. We can say all we like about legislation and what should be done and we can wait for reports and set up commissions but in the long run something has to be done to rectify injustices. Nothing could be more unjust than the present system where somebody who trespasses on land or property can sue the owner. It is an archaic law. With my non-legal training I do not need anybody to tell me that the wording should be simple. I agree with Deputy Foxe that it should be clear-cut that the landowner owes no obligation to anybody. If I want to do something with my property why should I have to worry about somebody trying to steal it? If I dig a hole in the ground to bury my gold and somebody happens to fall into it, why should I be liable for any damages caused to him? The thing that should be done is to cover him up with the gravel and not give him any compensation. The whole concept of this responsibility is completely unjustified and indefensible.

In his speech the Minister expressed surprise that Deputy Deenihan had introduced this Bill without having the benefit of the Commission's paper on the subject. The Minister of State has the advantage of living in the city and may have many rural contacts. He may even own 1,000 acres in the country. If he was in touch with farmers, farmer organisations or attended a dinner dance organised by any of the farming groups, he would know that it is the one topic that is upsetting to landowners because they do not know the day or the hour they will get a bill for, perhaps, something they do not know anything about.

That applies to householders. It is not a rural phenomenon only.

(Carlow-Kilkenny): I accept that point. The whole question of public liability has become ridiculous. Business people are put out of business because they cannot get cover. I know a painter who got a contract but he could not get public liability cover. I know another person who pretended he had public liability because he could not afford to pay £4,000. I agree that not only should we deal with this issue but we should broaden it out. This Bill concerns farmers, mainly landowners. This is something they worry and talk about because they can see the difficulty whereby somebody can sue them and put them out of business. For that reason the Bill should be welcomed and the Minister should support it. I was on a committee dealing with this matter during the life of the last Government but the committee collapsed because of the election. It was important then that we should deal with it, and it is still important.

The Minister said that a problem with this rule is that it automatically assumed that a trespasser is a person of lawless intent. I do not think it makes any difference. I suppose it makes it worse if somebody is coming in to rob one and he gets hurt and one has to compensate him. However, a trespasser is a trespasser. The Minister went on to say:

It did not make allowance for the fact that in many instances trespassing may be quite an innocent activity which is wholly devoid of malice. In this context, the position of children who stray onto land, attracted perhaps by some particular natural feature such as a tree or water, is of especial relevance.

The question that springs to my mind straight away is: should every landowner cut down his trees in case some trespasser comes in, decides to climb a tree and then falls off and breaks some bones.

If we want to have a beautiful countryside and beautiful ash trees and oak trees scattered all over the countryside and ponds or lakes, are we to stand back from all this and say that the farmer is liable because there is a danger that somebody may trespass and get hurt? If the farmer is lucky enough to have trees and water on his land, why should he have to compensate a person who comes on to his property and falls into the lake or from a tree? We do not need any commission report. All we need is commonsense. Let the farmer get on with his life. He has enough expenses to meet without having to pay people who invade his property.

The Minister also said that the Supreme Court gave careful consideration to the legal basis of any duty which a defendant might have in cases of trespass in general, and that Deputy Deenihan was overruling the Supreme Court decision. I am innocent enough to believe that the Dáil should be laying down legislation and that the Supreme Court should be interpreting it. Often in the past it was the Supreme Court who decided what legislation should be passed because we have been dragging our feet. I would have assumed that any decision made by the Supreme Court is made on the basis of existing legislation and that if we bring in legislation providing that no compensation is to be given to a person who is a trespasser, or even an invitee, that that legislation should stand. I do not see why, if a farmer gives a man permission to walk his alsatian on his land and the alsatian drags him over a quarry into a 40ft. pool of water, the farmer should be liable. However, because of our archaic legislation that farmer is liable to compensate that invitee. I would not make any distinction between invitees, licensees or trespassers.

The Bill draws that distinction.

(Carlow-Kilkenny): It is trying to deal with an archaic system. The Minister said that perhaps all those matters should be left out of it altogether. Why not start in 1993 with legislation that is understood and is in plain English with no “ifs”, “ands” or “wherefores”? We are forever continuing on with old legislation — what was written in 1875 and 1775 has to be continued. The Minister gave the example of the state of Illinois where, in essence, landowners there who allow someone onto their land for recreation purposes do not have to take special measures to protect that individual from harm, nor is the landowner liable for any damages or injuries the individual may suffer. Is that not what this Bill is really trying to do? In Illinois farmers have no liability. Why can we not, in 1993, introduce such legislation here?

The Bill goes further. The Illinois legislation is confined to those sporting situations. This Bill draws no such distinction. The Bill covers everything across the board.

The Minister is wrong in his interpretation. I dealt with it on Second Stage. I know the Minister could not reply but this Bill deals with land and land only and I put a lot of emphasis on that. I was very careful to define that.

It is not confined to sporting purposes which the Illinois legislation is.

(Carlow-Kilkenny): We are playing with words. People are going on to land.

The question is that maybe we have to limit the legislation, like in Illinois, only to sporting situations.

"Sporting" is very wide. It would be impossible to define it.

(Carlow-Kilkenny): It could be said that the person walking his dog was engaging in a sporting activity.

I am sorry, I should not interrupt the Deputy.

(Carlow-Kilkenny): I do not mind the intervention because it explains things. We are dealing with something that is very important. This Bill deals with the responsibilities of landowners. It mean so much to the farmers. We should be bending over backwards to get to the stage where a farmer can rest peacefully at night and not worry in case somebody comes on to his land. That is what it boils down to. We can have all the legal arguments we like and definitions of words and so on. I do not care if the person is engaging in a sporting activity, is invited in or is a trespasser. The land owners should have no liability whatsoever to cover that person's injuries if he should have an accident. Some years ago a person tried to break into Croke Park and fell through the glass roof on the handball alley and got something like £20,000 in compensation. We are standing things on their heads and it is impossible to survive because of the costs of public liability insurance.

I note something else the Minister said, that the licensee must take the land as he or she finds it with all its imperfections and the occupier will have no obligation to make it safe for use by the licensee. I am sure that a farmer hearing that would be drawing up emergency plans to go out with tractors and trailers to fill in all the holes and so on, on his land because the licensee is now expected to take the land as he or she finds it. Why should the trespasser, the invitee or the licensee not take the land as they find it? Surely to God a farmer cannot go around with a flash lamp at night telling people to watch their step, that there is a hole there, a tree over there and not to jump into the lake? What kind of legislation are we bringing in to deal with the practicalities of a farmer's life? The Minister asks should our law not, therefore, offer such flexibility that entrants would be entitled to a level of safety that depends on the particular circumstances of the case rather than a level of safety that is automatically dependent on the class or stratification of the entrant. The Minister is arguing again on behalf of the trespasser or the invitee. The Minister is arguing that there should not be a standard laid down on the basis——

I am not. I am just trying to see the various complexities of the situations that arise and to say we have to take them all into account in the legislation. I am not making any particular value judgments at all. It would be premature to do that.

(Carlow-Kilkenny): Would the Minister accept that there should be protection for the landowner rather than for the person going on the land? Is that the Minister's view, because he is not saying that here?

I have accepted it. If the Deputy reads the speech carefully he will see that I do accept that legislation is necessary to deal with the new situation which has developed. All I am saying is that we should wait and see, for the three or four weeks involved, what the law reform people come up with so that we can take that into account in framing all aspects of it. I accept that legislation is necessary.

The Minister's preference would seem to be for a more liberal form of legislation.

Not necessarily. I have not made any value judgment yet.

(Carlow-Kilkenny): That particular statement —“should not our laws offer such flexibility that entrants would be entitled to a level of safety that depends on the particular circumstances of the case rather than a level of safety that is automatically dependant on the class or stratification of the entrant”— indicates one thing. This Bill is saying that trespassers just do not get compensation, that there should be no liability attaching to the landowner in the case of trespassers. The Minister stated that there should be a balancing act but I do not believe there should be. If the Minister waits for the publication of a report there is a danger that instead of dealing with the protection of landowners and farmers there will be a hidden agenda that will make it worse for them.

Debate adjourned.
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