Skip to main content
Normal View

Dáil Éireann debate -
Thursday, 26 Jan 1995

Vol. 448 No. 2

Occupiers' Liability Bill 1994: Second Stage (Resumed).

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

When the debate adjourned before Question Time I was saying that this was a far-reaching Bill, the implications of which are crucial not only for landowners but for the community as a whole, and that it is vital to tackle the issues in order to contain soaring insurance costs and at the same time preserve and enhance our tradition of sport, recreation and leisure.

People have seen this Bill in a limited light, as affecting principally farmers and the farming community for whom it has major implications. Consequently, it is not surprising that landowners have taken a great interest and will have much to say on Committee Stage. People involved in recreational pursuits within the city areas will also be concerned about the implications of this Bill because it will cover access to community halls, school premises, swimming pools and children's playgrounds and will affect occupiers other than the landowner.

This is an era of community development and many local communities, with assistance from the State in many cases, are developing local facilities and amenities and extending their support to children and people in general in the community, and this legislation has implications for them also. That is why it is important on Committee Stage to consider the implications of the legislation for the local communities and development groups and provide support for them so that these measures will not prevent them from engaging in and extending these worthwhile community-based activities.

This legislation also has implications for the householder. There are many anomalies in the law relating to injuries sustained on the householder's property. There are large and small landowners around the country but there are many tiny landowners in cities and we must take care of their interests and ensure that the Bill meets their needs in this age. All of these matters fall to be considered on Committee Stage.

This Bill has been under consideration for quite some time and I congratulate the Minister on bringing it to the House. Although I may differ with the Minister as to the detail of it, its purpose and intention is good. However, the lack of precision in the law is the result of many court judgments over the years, some more and some less sympathetic to the interests of the occupier. The law is not clear. Each judge has to decide on the extent of the duty of care which the occupier owes. The test of reasonableness is applied and each case is decided on its merits.

The Minister is now essentially trying to codify the position and spell out the criteria and the factors which will determine the liability of the landowner. I am not convinced that the new code is any simpler or clearer than the existing law and I do not think the enactment of this Bill in its present form will reduce the volume of litigation or the insurance cost that landowners must bear. If anything, I think the proposed code is more complex than the case law it replaces and introduces into each case not fewer but more issues to be left to the judge to decide.

Will the Minister tell us the net effect he wishes to achieve in this Bill? He should have set out either in his speech or in the explanatory memorandum a comparison of the proposed and existing measures and, perhaps, some clear examples of cases which under the old system would give rise to liability for the occupier but for which under the new system the occupier would not be liable. Some of these examples would be very helpful to Members in understanding in a very clear way the implications of this Bill. They would also be helpful to the Minister and his staff in clarifying the impact of the measures we are considering. I find it very hard to beat a clearcut example when you compare what happens in present circumstances with what would happen under changed circumstances. It is when you get down to looking at it in that detail—perhaps the Minister may give us some examples of that kind on Committee Stage—that you begin to see the real implications and whether we are making any real progress or not or whether in effect it will be beneficial to the occupier or the householder as the case may be.

I am, of course, prepared to co-operate with the Minister on Committee Stage if the end result he has in mind is similar to what I have in mind. I was interested to note that the explanatory memorandum tells us: "(3) The proposals in the Bill, will not involve any charge on the Exchequer", yet the Bill imposes a level of liability on the Office of Public Works in respect of national monuments which may be more onerous than at present. It is a pity that in attempting to codify the case law the Minister has chosen to introduce new terminology such as "visitor" and "recreational user". The old labels were well established and could quite easily have been adopted and adopted as needs be. Instead we are to have a somewhat farcical result of a plaintiff seeking damages from an occupier in respect of an overcrowded dance hall having to prove at one and the same time that he was a "visitor" in respect of the state of the floor or the stairs, for example, and "an invitee" in common law in respect of the overcrowding.

What is an "entrant" and when is his or her presence unlawful? Why not call a spade a spade, if the Minister means a trespasser why not say so? May I make this helpful suggestion? Why not take the draft Bill over to the Insurance Federation and ask it for its views and the percentage it might reduce public liability premium by for farmers and landowners? The Minister may be surprised at the answer he will receive. The insurers will be particularly concerned about the impact of the Bill's provisions on occupiers other than farmers.

Perhaps the Minister did not consider the village hall, the school, the swimming pool, the railway station, the Garda station, the courtroom, the pub, the apartment block or the house in flats. All of these are issues which we must consider in greater detail for Committee Stage. We are all aware of increasing litigation in these circumstances which is leading to exorbitant costs and to almost insurmountable difficulties for people who wish to carry on business. We regularly get such complaints from people in the community who are trying to carry on a business. We need to explore and develop these issues on Committee Stage.

How are we to reconcile the farmer's legitimate annoyance about insurance costs with the freedoms we have all enjoyed such as strolling, hill climbing or sightseeing in the countryside? We must examine in particular the impact of the Bill's proposals on two groups, namely tourists and children. The last thing anyone wants to see is gates closing or warning notices indicating hostility to all strangers. Farmers have been very open and hospitable during the years and we should do our utmost to continue in that way.

I do not think the Bill should encourage farmers to erect warning notices as it clearly does in section 5 (5). Even if they only apply in the case of visitors the notices will no doubt go up and we will all be the losers. In section 5 (2) (a) another notice is suggested purporting to restrict the landowner's liability. Neither notice will be effective on a case by case basis and if they are of no real benefit to the landowner why encourage this form of visual pollution?

I am somewhat puzzled by the reference to the Bill in the new programme for Government which, states that the Bill would be "reviewed in the context of further careful examination of the legal and constitutional position as it relates to minors". Perhaps the Minister might enlighten us in due course. The Minister said "nonetheless I do appreciate that this issue is one which has given rise to some concern on the part of those who feel that their position is somewhat 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." He then said, "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 the Committee Stage". I would have thought that the Minister would have brought his views here today.

I wanted to hear the Deputy's views.

If the Minister gave his views we could tell him what we think of them. It is slightly sleight of hand to say, "lets have your views". This is the programme for Government.

This is the Bill you approved.

This is the new programme for the new renewed Government of reality but the Minister is asking the Opposition to say what it might do.

It is the Deputy's Bill as much as mine.

No. This is an issue that has arisen since the Bill was published. It has arisen in a very genuine and real way because people were concerned about these issues and they expressed their views. We all know that the IFA, ICMSA and various groups have expressed reservations and concerns. That is the normal procedure and the reason a Bill is published in the first instance is that the public can consider it and put their views on it.

This Government is not working in the way we used to work. The Government has told us it is reviewing the matter and one would expect that it would now tell us its thinking on it. Perhaps the Minister will give us that information in his reply. We will then know the Minister's thinking and how to approach Committee Stage. We can do the homework for the Minister if that is necessary but he has expert public servants available to him who will watch and note the changes and nuances in the media. They will bring proposals and suggestions for dealing with the issues which will arise to the Minister.

In the best interest of democracy, I am interested in the views of all sides of the House and am inviting them.

The Government's programme is hardly a case for saying to everyone in the country: "Tell us what you have in mind and we will do it."

Not everyone in the country but everyone in the House.

I appeal to the Minister to say what he has in mind and not shelter behind a phrase in the Programme for Government, realistic and all as that programme may be. We will give him our views but we would like to know what he has in mind.

What I have in mind is contained in the Bill.

The Minister is open to persuasion.

Who wrote the piece for the Government programme? The Minister has repeated that he is reviewing it in the light of what happened. The Minister should tell us what he has in mind. We would be delighted to hear it.

The provisions relating to children are contained in section 4 (3). I do not know the significance of listing the age of the child when his or her ability to appreciate the danger is separately listed. These are matters to which the court is to have regard when determining whether the occupier acted with reckless disregard. Does "acting" include omitting to act? These are examples of the Bill passing the buck to the court.

The bottom line is that it will be some years before we know whether these provisions are any less onerous or expensive for landowners. The Bill poses questions which will not be answered until new cases produce judgements on which insurers may rely. A fundamental question which must be addressed is whether the level of insurance premia for farmers bears any relationship to the level of claims. A more imaginative approach may be required and interested parties should be consulted.

What we are addressing here is whether persons injured on another's property should be compensated and to what extent. Why not consider a system of no fault liability for serious personal injury with a fund provided by the insurers funded through the imposition of a flat levy.

No fault?

For less serious injuries, complete exemption from liability in the case of the trespasser or recreational user. Such a system might stem from the flow of cases and reassure landowners. We can discuss these matters in detail on Committee Stage. We support the Minister's general purpose and intentions but the Bill needs a great deal of discussion and amendment on Committee Stage. It has the potential to greatly improve the position for occupiers, enhance our traditional openness to leisure and recreation and strengthen urban rural relations to everyone's advantage.

The Minister said he would like the Bill to have a speedy passage. We will co-operate with the Minister but within the terms of getting the Bill right.

I fully accept that.

My colleagues in the Progressive Democrats, represented by Deputy Keogh at the moment, would agree with that approach.

If she gets and opportunity to speak.

I welcome the Bill. As the Minister is aware, I have raised this matter at every conceivable opportunity and as late as this morning during the debate on the Heritage Council Bill.

This is long awaited legislation and as Deputy Woods said it is not a question of rushing it through but one of getting the legislation right. I appreciate the great legal difficulties involved. It is not just a matter of waving a magic wand. I am sure the Minister appreciates that landowners are genuinely worried. In my constituency landowners were happy to allow people onto their land but now they are afraid to do so because they are aware of the legal difficulties they could encounter.

I was a little disheartened by the Minister's contribution. He said that some sectors—perhaps he was referring to the farming sector because I know a similar reference was made by them—were not prepared to act as guardian angels. I do not believe this remark was made in a flippant way. They are genuinely concerned, particularly where minors are concerned. The Minister stated that the Bill does not say 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. That may be the case but the problem is that the general approach taken by the court where minors are concerned has always been in favour of the minor in these types of cases.

The Minister may recognise this because later he referred to the case where a minor might be in the company of another person and the extent of the supervision and control which that person might reasonably be expected to exercise over the minors' activities will be relevant in determining whether an occupier has acted with reckless disregard. That highlights the difficulties involved where minors are concerned but it does not address the main problem of where there would be a lone child trespasser on the land and the onus of responsibility that would fall upon the landowner under the law.

On access to national monuments, which is of particular concern, some farmers have erected notices saying they do not wish people to enter their lands to view national monuments. To gain access to national monuments interested parties must cross private lands causing legal difficulties when an accident occurs. I worry about this aspect, bearing in mind the growth of what is now known as "cultural tourism". The Minister for Arts, Culture and the Gaeltacht mentioned it in the House this morning when he said it was necessary to adopt a balanced approach contending that, while landowners have their rights there is a right for all who wish to see part of our national heritage and visit such national monuments. In order to ensure the best possible co-operation landowners must be protected against any legal difficulties or costs that may arise through accidents on their lands.

I thank my colleague, Deputy Woods, for allowing me to make this short contribution. No doubt we will have greater opportunity on Committee Stage to discuss the Bill in more detail.

I have been waiting so long today for other Members to finish I am tempted to remain seated. I too welcome this Bill which has had a long gestation. As other Members have said, many of its provisions require improvement.

As we are all aware, probably there is no other country in Europe as litigious as ours. The last 15 years saw the growth of a claims culture that has become an open wound in our society. As those involved in local government will know, we have now reached the stage at which the amounts spent by many local authorities on compensation claims far exceed amounts spent repairing roads and foothpaths. Members of the public, egged on by a small number of greedy unscrupulous lawyers, are encouraged to view a minor fall, scratch, graze or pulled muscle as an alternative to winning the national lottery. Indeed I understand that a hole in a road in Cork city has yielded no less than £2.5 million in claims.

Apart from the insurance implications for the ordinary citizens, for normal human activities, work and leisure, its other effects are devastating. No area of human activity has been spared the paralysis that has accompanied this rising tide of claims. For instance, in our schools, teachers can no longer send their students around the corner to the local library; on farms farmers can no longer dig a silage pit without worrying that somebody will fall into it. Public houses, clubs, and hotels are sued by drunks who fall off bar stools; supermarkets are being sued for trivial injuries by people who fall on their premises. This "compo culture" as it is often termed, means that we are all prevented from engaging in the types of activity we enjoy.

In one housing development near my constituency in Stillorgan, a playground was built for the children of families moving in, which is not very usual. That developer is worthy of praise for having had the imagination and consideration to set a portion of land aside for that facility. The children were beginning to take great delight in playing on the swings, slides and in climbing the frames with great enthusiasm when disaster struck. The insurance company refused to insure the playground. The property management company regarded itself as having no option but to close the playground. It called in the bulldozers. I believe it was a pitiful sight to see those poor children watch their playground being razed to the ground.

While we in Ireland may be bad, the "compo culture" is becoming almost as prevalent and highly developed in England. For example, a pop concert scheduled to take place on the Isle of Wight in June next was cancelled because council officials were afraid those attending might fall of the cliffs. One can well imagine the claims that would result.

The Deputy will have to talk to some senior counsel about that.

The culture of dependency in which we live has reached the stage at which people are no longer willing to accept responsibility for their actions. I suppose that is no wonder since our tax and social welfare laws tend to force people into dependence on the State, to such an extent that their autonomy and dignity, as human beings, is eroded. When accidents happen, as they always will, many people will now embark immediately on a hunt for a scapegoat. They never ask themselves what they could have done to avoid the accident in the first place; hardly ever will they hold themselves responsible. When I was a child and tripped on the pavement or anything else usually I was asked by my parents: "Why were you not looking where you were going?" I am afraid today's children are much more frequently asked by their concerned parents whether there were any witnesses.

As other Members have rightly said, the occupiers of land probably have been hit hardest by this "compo culture". It is important to stress, as did Deputy Woods, that all categories of property owners are affected — landowners, small farmers and urban householders, no matter how small are the properties are affected by high insurance premia which have led to the growth of what is termed "defensive ownership". Many farm owners have been forced to exclude the public from their lands, not because they wish to but because they have no choice. In turn, this has severely restricted the innocent activities of such people as hill climbers, ramblers, fishermen, scouting organisations and others. Of course, its effect on the tourist industry is unquantifiable.

This Bill constitutes a small step along the road to improving the lot of occupiers, in particular farmers, when people may be injured on their lands, but it does not go far enough.

The law to date is complex and confused. The common law recognised four categories of entrants to land — contractual entrants, invitees, licensees and trespassers — a different duty being owed to each category of entrant. In section 2 it is proposed to make a clean sweep of all the duties, liabilities and rights attached under common law to occupiers of premises and to replace those four categories of entrants with three — visitors, recreational users and trespassers. In the case of visitors, under the provisions of section 3, an occupier of premises owes a duty to take such care as is reasonable in all the circumstances to ensure that such a visitor does not suffer injury or damage by reason of any danger existing on the premises. This is termed "the common duty of care". In the case of recreational users and trespassers, the duty owned by the occupier, as provided for in section 4 (1) (a) and (b) is:

(a) not to injure the person or damage the property of the person intentionally, and

(b) not to act with reckless disregard for the person or the property of the person,...

This aspect of the Bill is clearly a crucial one, since it is in sections 3 and 4 that the main provisions with regard to liability are specified. If these provisions do not achieve what they set out to achieve, the Bill will be valueless.

Section 3 imposes a duty on occupiers to take reasonable care that visitors do not suffer injury, "visitors" include persons entering the land, as of right, persons who have been invited to enter and persons entering the premises on foot of a contract. It will be seen, therefore, that the category of "visitors" includes patrons of shops, hotels, pubs, restaurants and the like.

My difficulty with this aspect is that the duty on the occupier to take reasonable care is vague and ill-defined. It remains to be seen whether this will afford any protection whatsoever to, say, the owners of supermarkets, pubs and the like who have been plagued by a rash of trivial claims, so called "slip and fall" claims, many of which it is fair to say are not brought by plaintiffs out of a burning desire for justice but rather out of greed and a desire to cash in on a minor incident. It remains to be seen whether this provision will make any difference whatsoever to the law.

I note that section 5 allows an occupier, by agreement, to restrict his or her duty to visitors or other categories of entrants. While that in principle is welcome it will be effective only if the restriction is reasonable and displayed on a sign or notice that the occupier has taken reasonable steps to bring to the attention of the visitor. In that respect I agree with Deputy Woods' comments about having signs all over the lands. It remains to be proved whether section 5 will be of any assistance to occupiers of commercial premises. The presence of the word "reasonable" will give the courts ample scope to find in favour of plaintiffs in hard cases.

Regarding section 4, I welcome that the Government made special provisions for recreational users. Clearly, it is in everyone's interest that there should be maximum freedom to engage in outdoor activities, such as walking, rambling or visiting historic sites and national monuments. If farmers and landowners are not to close their gates to persons engaging in such activities, it is crucial that the Bill should provide for the lowest possible level of liability. However the Bill failed to do that.

Section 4 provides that the duty in relation to recreational users is not to injure them intentionally or to act with reckless disregard for their safety. So far so good. However, subsection (2) includes a host of restrictions and modifications on this basic principle. It provides that, in determining whether the occupier has acted with reckless disregard, regard must be had to all the circumstances of the case, including whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises; whether the occupier knew or had reasonable grounds for believing that the person was, or was likely to be, on the premises and whether the occupier knew, or had reasonable grounds for believing, that the person was in, or was likely to be in, the vicinity of the place where the danger existed, the list continues. The danger with this section is that it has the capacity fatally to undermine the restricted duty of care to trespassers and recreational users which section 4 (1) attempts to introduce.

We all know judges are human, we also know that hard cases make bad law. There is no area of law where this principle has been so well illustrated as the field of occupiers' liability. Lawyers in the House will know that the cases of Purtill v. Athlone UDC and McNamara v. ESB involving child trespassers, illustrate this very clearly. The danger inherent in this part of the Bill is that a hard case will come before the courts, probably involving a child, where a trespasser or a recreational user will decide to sue a landowner alleging that the landowner had acted with reckless disregard. In such a case judges are practically being invited to redefine the whole concept of “acting with reckless disregard” to include a particular hard luck case.

The particular danger lies in the presence of the word "reasonable". A simple example illustrates that point. Under section 4 (2) (a) one of the factors to be taken into account by the court in deciding whether the occupier acted with reckless disregard is whether the occupier knew or had reasonable grounds for believing that there was a danger on his or her land. In other words, the occupier need not have actual knowledge of the danger. An occupier may also be found liable if the court forms the view that he or she ought to have known of the danger. In other words, the occupier will be judged, not in accordance with subjective standards or what he or she knew, but in accordance with objective standards of what a court decided he or she ought to have known. If Members read the remainder of that subsection which sets out the other matters required to be taken into account by the court, they will see that this objective standard of liability is imported into almost every one of them.

There is another difficulty in that in law, the concept of recklessness is regarded as denoting behaviour which is worse, more inadvertent and more blameworthy than negligence. The test of negligence has always been a failure to take reasonable care. What the Minister has done here is to mix the two concepts of recklessness and negligence. An occupier is liable when he acts with "reckless disregard" but when we check how "reckless disregard" is defined we see it is by reference to the concept of "reasonableness". In other words, "recklessness" is redefined as "negligence". The Minister is issuing an open invitation to the courts to judge occupiers when they are sued by a trespasser in accordance with the standard of negligence. That is not an improvement in the position that prevails at common law, it is a substantial disimprovement.

Debate adjourned.
Top
Share