Amendment No. 1 is in the name of Deputy Keogh. I observe that amendments Nos. 2 and 9 are related. I suggest that we discuss amendments Nos. 1, 2 and 9 together, by agreement, if that is satisfactory. Agreed.
Occupiers' Liability Bill, 1994: Report and Final Stages.
I move amendment No. 1:
In page 2, line 18, before "disease" to insert "serious".
A concern of all Members of the House is the elimination of the "compensation culture" prevailing in our society. In that respect the objective of my amendment is to raise the threshold of seriousness of such claims for compensation and to send out that clear signal. We have all witnessed trivial claims being pursued, at times to the annoyance of the courts, resulting in the system becoming clogged. I refer to the mentality that dictates that any minor fall, scratch or graze must result in some type of compensation, about which we must send out clear signals from this House.
The Minister did not appear to be very receptive to the arguments I advanced on Committee Stage. I hope he will have had an opportunity to reflect on them in the interim because, like myself, I think he also believes that many such trivial claims have been lodged. My objective is the psychological impact that would result in the Minister's acceptance of these amendments. I am concerned with the principle, that we discourage people from believing that they deserve to be compensated, particularly in regard to minor accidents which, in many cases, may very well be their fault. Acceptance of these amendments would encourage the public generally to be more self-reliant. It would be useful also if it sent a similar signal to children. I have already said that, whenever as a child I fell, my parents would ask why I had not been looking where I was going. Unfortunately, some people now will assume that when their child falls, the fault lies with somebody else and not merely with the exuberance of youth. I ask the Minister to consider these amendments favourably.
Amendment No. 9 is a more substantive one. Deputy Keogh wishes to have the word "serious" inserted in the Bill, but we are both trying to deal with a similar problem. Amendment No. 9 states that "An occupier shall not be liable to a trespasser in respect of any damage to the property of the trespasser or any injury to the person of the trespasser unless such injury is of a permanent nature or causes or contributes to any permanent ailment, disability or deformity". We are spelling out our concern for the removal of vexatious claims for minor bruises and scrapes for which, as Deputy Keogh stated, people would not have pursued claims in the past.
Amendment No. 9 provides that the occupier would not be liable to a trespasser in respect of anything other than permanent injury to either property or person or in respect of something which causes or contributes to permanent injury. While the amendment would protect people who suffer serious injury, it would exclude the majority of claims against occupiers which usually fall under the heading of something less than a permanent injury. In other words, it would exclude liability for scrapes, sprains, bruises and so on.
It must be recognised that we are talking about trespassers. On Committee Stage the Minister stated he could not accept such an amendment by referring to customers who are visitors, and a separate category. Amendment No. 9 relates to trespassers and proposes that while they can claim for serious injuries, they should not be able to claim for minor ones.
The Deputy's amendment would also cover recreational users.
That is correct, but not visitors to which the Minister referred on Committee Stage.
While this is a fair proposal, if the Minister would like to amend it somewhat I am sure Deputy Keogh and my colleagues would be satisfied. We would like him to go some way towards accepting this amendment because up to 90 per cent of actions taken by trespassers against occupiers relate to minor abrasions, lacerations, sprains and so on. This is an important amendment if we are to bring about the desired change in this area. We are anxious, therefore, that the Minister should respond positively to our proposals.
I am anxious that any Members wishing to intervene should do so at this stage so that when the Minister rises to reply he will have regard to what has been said by previous speakers.
In regard to the point made by——
The Deputy has already spoken.
I merely paused to take a breath.
The Deputy knows the procedure.
I merely want to say that the amendment specifies trespassers.
The procedure at this stage is important.
As the Chair raised the matter of procedure, I wish to raise a point of order in that regard. As a Member of the House of reasonable standing, I note the unfortunate recent habit of tabling large numbers of amendments on Report Stage. This creates great difficulty for the operation of the House because they cannot be discussed and debated adequately. For example, a large number of amendments were tabled on the Report Stage of the Family Law Bill. Those amendments required a great deal of discussion, but because they were tabled on Report Stage, Members were limited in their contributions. I wish that point to be noted and it would be undesirable for the practice to continue. It is an undemocratic process.
I did not lay down the procedure for dealing with Report Stages of Bills in this House, it has been there for a long time. This House is sovereign in respect of changing that position if it so desires. In this case we are taking merely three amendments Nos. 1, 2 and 9. That is not a great number to take together.
I support Deputy Woods's amendment. There is a fundamental distinction between trespassers and lawful visitors to property, a matter which is recognised to some extent in the legislation. A separate standard of care applies and a separate onus of responsibility must be discharged for a claim to succeed. Nevertheless, landowners are extremely concerned about the possibility of a person who enters their property without their consent and suffers injury making a claim against them. It is this more than anything that is giving rise to the campaign being waged within farming organisations to cut off their properties from recreational users who fall into the same category as trespassers. We must give those organisations a measure of reassurance in this legislation. While I recognise what the Minister did in his initial proposal, from the feedback I have received he has not gone far enough, and a stronger measure will have to be introduced.
As a practising lawyer of great distinction before taking up ministerial office, the Minister will be aware of the problem, particularly in urban areas, regarding people contriving claims. While the criminal courts have dealt with this matter to some extent, many people, the majority of whom are trespassers and are not lawfully on the property on which they allege to have been injured are still inventing claims. This difficulty is giving rise to higher insurance premia and operating costs. Will the Minister consider this matter in the context of this amendment? If this amendment is accepted far fewer people will contrive claims. People are not prepared to seriously injure themselves. They usually do something to themselves which will give them the basis for a claim but if we are talking about a serious or permanent injury, that is unlikely because the acceptance of this amendment would considerably reduce the numbers falling into that category. The criminal courts, the Garda and local authorities cannot deal with all those people. The numbers appearing before our criminal courts to date are merely the tip of the iceberg. This amendment would be a perfect stratagem to reduce those numbers considerably which would be in the interests of everybody, particularly the people who are paying inflated insurance premia.
Deputy Keogh proposes that an occupier should be liable only for injuries to an entrant which resulted in serious disease or constitute a serious impairment of a physical or mental condition. Deputy Woods makes much the same point in relation to trespassers and their property and proposes that an occupier should be liable only for injuries of a permanent nature to a trespasser and should have no liability for damage to a trespasser's property. I regret that for reasons which I shall give I am unable to accept these amendments.
If a claim for injuries is small or insignificant, it will be thrown out under the de minimus rule but if the claim is properly brought, if a person is injured intentionally by an occupier or through the occupier's reckless disregard and the injury is minor, the damages will be minor also. I do not see why an occupier who has shown want of care or reckless disregard towards an entrant should be exempt from liability altogether just because the injury is comparatively minor.
The amendments envisage a radical change in our law of civil liability. We could not have one rule for occupiers who cause injuries because of their want of care or their reckless disregard and another for all other persons who cause such injuries. The definition of "injury" in the Bill is, word for word, that in the Civil Liability Act, 1961, which sets out the general law in this regard.
Moreover, Deputy Wood's amendment would exempt occupiers from all liability if they intentionally caused less than permanent injury to a trespasser or intentionally damaged the trespasser's property. A fracture of a leg, for example, could involve hospitalisation for some months, the use of crutches for three, four or five months, considerable pain and suffering and loss of earnings but, at the end of that time, the person makes a full recovery. There would be no permanent injury and, therefore, according to Deputy Wood's amendment, no claim would arise for that type of injury.
I emphasise that as far as injuries to trespassers are concerned, the liability of occupiers under this Bill is well below that under the present law and only arises when they intentionally cause injury to trespassers by reason of a danger on the premises or show reckless disregard towards them.
Deputy Keogh has the right to reply to the debate on amendment No. 1 if she wishes to avail of it now.
The Minister obviously will not move on this but, to some extent, it may clarify the fact that trivial matters will not be deserving of compensation. I regret we cannot write that into the Bill but I still believe that such a threshold in the Bill would be preferable and would sharpen people's minds in relation to this whole area.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Amendment No. 3 is in the name of Deputy Woods. I call Deputy Woods to move his amendment.
Do I not have an opportunity to reply on my earlier amendment?
The procedure is that only the mover of the amendment has the right to reply.
Is it not the procedure that the person who moves the amendment has the right to reply on that amendment? We have taken three amendments together and by doing that it appears I have lost the right to reply.
The procedure on Report Stage of Bills in this House is very clear. A Member is entitled to speak once only on each amendment unless he or she is closing the debate on the amendment of which he or she is the proposer. The procedure is that only Deputy Keogh has the right of reply in this instance.
That is what I am asking about. Is that because we took the three amendments together?
That is not necessarily so, Deputy. The three amendments were placed together because they are related.
Does it arise from the fact that the three are taken together? I just want to be clear on this for any future groupings that may arise. We agreed to the three amendments being discussed together and the net effect of that is that one, consequently, loses the right to reply on one's own amendment. That would appear to be the position.
That is the position, Deputy. Only the mover of the amendment has the right to reply.
Yes, but there were three amendments.
I appreciate that.
On a point of information, does it mean if it is suggested that three amendments be taken together, and we prefer to take them separately, it is a matter for us?
It is the advice of my office that amendments clearly related are discussed together to avoid repetition.
I accept that and I realise——
That is the normal practice and the Chair is surprised that it is being raised now.
There may be some discrepancies or differences in the amendments that are worthy of a separate response, which I believe is the case with Dr. Woods's amendment. He probably believes that his amendment is more substantial than my two amendments and that the points he makes in them are slightly different. If we reach the stage again where we are asked to agree to amendments being grouped, we may have to examine them a little more closely to accept the principle. Is that satisfactory?
That is a matter for the House but it would place the House, the Chair and our procedures in a very invidious position if we were to discuss every amendment separately.
I accept that.
However, the House is sovereign in such matters and if Members want to debate amendments separately, they have a very willing and co-operative Chairman in that regard.
Nobody would ever doubt that.
However, I am concerned about the procedure.
To conclude on the other amendment, it raises an issue which will have to be considered further because it specifically relates to trespassers. This arose when the Minister referred to its relationship to recreational users. However, because we agreed to the three amendments being taken together, we do not have an opportunity to reply. It raises the question of whether we should agree to taking amendments together if there will not be an opportunity to reply on them. There is, of course, the opportunity to vote on each amendment separately and I appreciate that.
When the Minister has made his contribution it would be normal to have the mover of the amendment respond to him.
The Deputy is entitled to insist on a vote if he so decided.
I move amendment No. 3:
In page 2, lines 23 to 28, to delete all words from and including "and" in line 23 down to and including "trespasser" in line 28.
If this amendment is accepted, the definition of "occupier" will state:
"occupier", in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon
We propose to delete what is intended to affect the situation where there is more than one occupier. The Bill makes provision for cases where there is more than one occupier, and the definition of "occupier" continues as follows:
—and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser:
This provides that each may owe a different level of care to people on the premises. To one occupier, a person may be a trespasser but not to another. It appears that when a number of people occupy a premises, which is not uncommon, there could be a tremendous confusion where the duty of one part occupier to a person may be that owed to a trespasser whereas the duty of another may be that owed to a visitor. This might well arise in circumstances where premises are occupied by a number of different traders, each one having liability for his place. It seems an unnecessarily confused extension of a definition that is more than adequate if it went as far as "thereon" on line 23 as suggested in the amendment. If the amendment is accepted the position would be much clearer both for the occupier and for people coming on to the land.
Our advice on the definition as it stands is that the potential for confusion is considerable and for that reason it would be preferable to delete all words after "thereon".
There was a full discussion of this amendment in the Select Committee on Legislation and Security and I have given further thought to it in the meantime. I remain convinced and so does the parliamentary draftsman that it is essential to retain these words. There is no dispute about the need to provide for the possibility that more than one person may occupy the premises and should be made subject to a duty to entrants in respect of a danger existing on the premises or that the extent of this duty depends on the degree of control the occupier has over the state of the premises. That is the present law. Where I disagree with Deputy Woods is that I consider it is necessary to say this specifically in the text, otherwise there would be no clear indication that the extent of the duty of each occupier could vary depending on whether, as respects each of them, the entrant concerned is a visitor and thus subject to the common duty of care or a recreational user or trespasser, in which case the duty owed is much lower.
I regret therefore that for these reasons, I am unable to accept this amendment.
The Minister has certainly looked carefully at the amendments we tabled on Committee Stage and has taken on board some of our proposals. This will become evident as we deal further with the amendments. I appreciate that the Minister and his officials have looked seriously at the points made on Committee Stage. While the definition as it stands will leave scope for confusion, there is not a great deal between us on this issue and we are prepared to accept the definition with reservation. On that basis I will withdraw my amendment.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 2, line 30, to delete "and aircraft" and substitute ",aircraft and other means of transport".
This is a drafting amendment.
The definition of "premises" includes land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains and aircraft. The change proposed in the amendment does not seem to alter the definition very much but perhaps the Minister will tell us what other means of transport he has in mind or if it is more a safeguard global definition.
Obviously the Minister cannot include every single means of transport. Would hang gliders be considered an aircraft or a vehicle? I am sure what is intended is to be as all encompassing as possible but perhaps the Minister will tell us what he intends to cover.
It is purely a drafting catch-all provision in case there are other means of transport. I do not want to speculate on what they might be but the intention is that the definition should catch all means of transport and it is felt for drafting purposes it as well to frame it in that way.
Will it cover spacecraft?
Amendment agreed to.
I move amendment No. 5:
In page 3, lines 13 and 14, to delete "(whether express or implied)".
This is a drafting amendment.
Will the Minister explain the amendment?
The Minister proposes to delete "(whether express or implied)". In other words paragraph (c) would read:
an entrant who, with the permission of the occupier or such a member, for social reasons connected with the occupier or such a member, is so present;
The Minister said this is a technical amendment and that is probably so. However, one of the concerns of farmers is that a person may be deemed to have been invited by a child. The court would then decide whether implied permission was given. It would seem to extend the status of visitor to such a person and consequently bring about a higher duty of care. Perhaps the Minister will clarify this. Will the permission now include an implied permission?
I am a little confused about this matter. Our original view was that an entrant should have the express permission of the occupier and not just "express or implied". I have difficulty with this. On Second Stage I said that the Minister should have inserted "at the express invitation". He seemed to go along with that, then held back from it and now seems to be going towards it again. At this stage, I am not sure whether he has reached the right compromise. I do not know if he is trying to ensure that the category of visitor should be more restricted or less restricted. Perhaps he will clarify that.
The amendment is consequential on the changes made in the definition of "visitor" on Committee Stage. That definition refers to permission without any qualification and covers both an express and implied permission. Having an explicit qualification in the definition of recreational user referring to both the express and implied forms of permission could raise doubt as to whether implied permission is covered in the definition of visitor. That is the reason for this amendment.
Amendment agreed to.
I move amendment No. 6:
In page 3, line 22, to delete ",including an entrant" and substitute "or any other entrant".
This is also a drafting amendment.
I do not see any significance in this amendment. It is changing the terminology but it raises the question of liability if a five year old invites someone onto the premises. I would like the Minister to explain the amendment. A visitor means:
an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier, including an entrant specified in paragraph (a), (b) or (c) of the definition of "recreational user".
and it is proposed to remove ", including an entrant". A question mark hangs over the status which they have and the farmer's liability in a case where an entrant is invited onto the premises by a young child.
This is purely a drafting amendment. Paragraph (a) of the definition "visitor" includes an element of overlap. It covers entrants invited or permitted by the occupier both in the opening words and in paragraph 8 (c) of the definition of residential user. The amendment eliminates this overlap.
Amendment agreed to.
I move amendment No. 7:
In page 3, line 24, to delete "an entrant so present" and substitute "such an entrant who is present on premises".
This is also a drafting amendment.
Amendment agreed to.
Amendment No. 20 is related to amendment No. 8. Amendments Nos. 18 and 19 are consequential on amendment No. 20. The Chair recommends that amendments Nos. 8, 18, 19 and 20 be discussed together by agreement. Is that satisfactory? Agreed.
I move amendment No. 8:
In page 4, line 10, after "safety" to insert "and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities".
In the select committee Deputies Wood and O'Dea made the point that the occupier should be entitled to have regard to the level of supervision he or she would be reasonably entitled to expect from persons in whose care a visitor is. For example, a scout troop might be visiting a premises and the occupier would be entitled to expect that the scout master or other leader of the troop would supervise and control their activities. I agree with their view and I am moving these amendments to make it clear that account must be taken of any responsibility that persons accompanying entrants may have for supervising or controlling them whether the entrants be visitors, recreational users or trespassers.
The amendment which we sought is essentially contained in amendments Nos. 18, 19 and 20. It refers to the level of supervision when people are on the premises. We welcome the fact that the Government decided to accept the amendment and we are happy to support it. Amendment No. 8 is related. This is the kind of clause we introduced for recreational users and it is now being applied to visitors as well.
These amendments represent the approach we suggested on Committee Stage. They will significantly improve the legislation and I thank the Minister for taking our amendment on board.
The Minister has been very reasonable regarding a number of aspects of the Bill and has accepted points made on Second Stage and Committee Stage. I was happy to support the points made which have resulted in these amendments. I have no hesitation in supporting them as they add considerably to the Bill.
I am satisfied with the way the Minister dealt with this. I thank him for taking on board the points made by Fianna Fáil. This is democracy at work. If one looks at the Bill when it was first introduced and then as amended in committee, one will see a number of changes have been made to it. I pay tribute to the Minister. When I came to the House first it appeared to be a sign of weakness if a Minister backed down. That is not the case, as nobody has a monopoly on wisdom. I like this legislation and the amendment. It will make a huge difference to the owners of property who invite entrants on to their premises whether for pleasure or profit. In future responsibility for children will rest firmly on the people in charge of them. This makes great sense and I hope the courts will follow it through in any cases for compensation. The Minister has played a blinder, so to speak, on this issue.
I very much appreciate the comments made by the Deputies on all sides of the House.
Amendment agreed to.
I move amendment No. 9:
In page 4, between lines 21 and 22, to insert the following:
"(2) An occupier shall not be liable to a trespasser in respect of any damage to the property of the trespasser or any injury to the person of the trespasser unless such injury is of a permanent nature or causes or contributes to any permanent ailment, disability or deformity.".
Amendment put and declared lost.
We now come to amendment No. 10. Amendment No. 21 is related and amendment No. 30 is an alternative to amendment No. 10. I suggest, therefore, that we discuss amendments Nos. 10, 21 and 30 together. Is that agreed? Agreed.
I move amendment No. 10:
In page 4, between lines 21 and 22, to insert the following:
"(3) No person entering on premises, or being thereon or leaving thereof with any criminal intent or whilst entering on, or being there or leaving the premises commits or attempts to commit any criminal offence will have any cause of action against an occupier of the same premises arising from his entry thereon, his being there or leaving the same premises.".
This amendment seeks to ensure that no possibility will exist whereby a person who enters premises with any criminal intent can sue the occupier in respect of injuries sustained by him while on the premises. There is widespread support for a provision of this kind. It is ludicrous that a person who enters a premises with criminal intent can sue the occupier if he sustains a broken leg, etc. At present occupiers, including householders, are liable for injuries sustained by a person who enters their premises with criminal intent. While it may be unlikely that such a situation will arise the possibility of it arising is intolerable.
The Minister's amendment No. 21 states:
(3) (a) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise in the interests of justice.
(b) In paragraph (a) "offence" means an offence against the person or property of the occupier or of a member of the occupier's family who is ordinarily resident on the premises, and includes an attempted offence.
I welcome the Minister's attempt to meet the spirit of my amendment. I support the proposal in subsection (3) (a) of his amendment which mirrors the proposal in my amendment but I have reservations about paragraph (b) which defines an offence as an offence against the person or property of the occupier or of a member of the occupier's family. While it may sound extraordinary, a person with criminal intent who injures himself while on an adjoining premises may take an action against the occupier of that premises. The definition of "offence" in paragraph (b) is so narrow as to negative the provisions in paragraph (a) of the Minister's amendment and my amendment. If the Minister's amendment is accepted a criminal will still be able to sue an occupier. We want to ensure that a criminal will not be able to do this.
I welcome the inclusion in paragraph (a) of the words "unless a court determines otherwise in the interests of justice". The words "criminal offence" in my amendment do not require further clarification. I support paragraph (a) of the Minister's amendment but I have difficulty with paragraph (b). I will not oppose his amendment as we are at least getting half a loaf, so to speak. However, paragraph (b) is somewhat flawed and takes away from what we are trying to achieve. I ask the Minister to reconsider his amendment.
A person with criminal intent who injures himself in the house, garden or field next door should not be able to make a claim against the occupier. The Minister has gone a long way in his amendment towards meeting our concerns about this issue but my amendment is better in many respects. The ideal amendment would perhaps be made up of elements of both our amendments. I have concerns about paragraph (b) of the Minister's amendment and I hope he accepts my amendment.
I agree with Deputy Woods that the Minister's good intentions are negatived to a large extent by paragraph (b) of his amendment. If a person enters my property, shoots me and subsequently injures himself he has no action against me but if he enters my property with the express purpose of shooting the person next door, because he can get a good aim from my house, and injures himself subsequently, he could have an action against me for damages. That distinction is unreal and Deputy Woods has illustrated the position very graphically. I take the Minister's point in the first part of his amendment that the crime has to be committed in order to deprive the person of his action for damages. Nevertheless, a person can enter my property with intent to murder, wound, pillage or rape and if before he manages to carry out his nefarious deed he falls through the floor, he can have an action for damages against me if I am held to be grossly reckless. I take it that the commission of an offence includes an attempt to commit the offence.
That is provided for in section 4 (1) (b).
The Minister will be aware that an attempt which is an inchoate offence is difficult to prove. It may be evident to all and sundry that this person's intent is bad but he may not have gone far enough in doing what he intended to do to come within the definition of attempt for criminal law purposes. I realise the Minister's difficulties in relation to imposing sanctions, even civil sanctions, on people on the basis of intent rather than commission but I ask the Minister to look again at paragraph (b) of his amendment. There is no moral distinction and there should not be a legal distinction between entering my property and injuring me and entering my property for the express purpose of injuring a person next door because my property is convenient. I thank the Minister for coming so far. I do not want to trespass unduly on his generosity but in the interest of balance, fairness and logic he should come a little further.
We are agreed that if a person enters property with intent to commit an offence that person should not have any shelter within the law. It would be a scandal if such a scenario were allowed to continue. Such people do not deserve any legal protection and they should not get it. As can be seen from amendment No. 21 the Minister is agreeable. If we are seeking a simple way out between the Minister's amendment and Deputy Woods's amendment I could put forward my own relatively simple amendment to the effect that nothing in this Bill shall be construed as imposing any civil liability upon an occupier of premises towards an entrant who has entered upon the premises for the purposes of committing a criminal offence. I agree the Minister has come a considerable way, he has listened to the debate and has tried to arrive at a solution in the first part of his amendment. If we were dealing only with subsection (3) (a) of amendment No. 21, we would be satisfied and I would have no difficulty with it. I would congratulate the Minister as much as I did on the last amendment he accepted on foot of arguments made. I am worried about the restrictive nature of subsection (3) (b). It occurred to me while other Members were speaking about a person entering land for the purpose of murder or injuring the person next door that it is very restrictive. Paragraph (b) states:
In paragraph (a) "offence" means an offence against the person or property of the occupier or of a member of the occupier's family who is ordinarily resident on the premises, and includes an attempted offence.
What happens if there is a visitor? Am I being too narrow in my interpretation? It appears to me that paragraph (b) is extremely restrictive. It does not negate what the Minister is trying to do. As the Minister is open to accepting the arguments being made, he recognises the scandalous position where people can have legal protection although they have criminal intent I ask him to look again at subsection (3) (b) and to reflect whether it is too restrictive and too narrow. It would be unfortunate when we are trying to arrive at the best legislation possible if something which was not his intent was included in the Bill.
The amendments by Deputies Keogh and Woods are amendments they moved in the Select Committee. They are designed to exempt an occupier from any liability towards a person who entered premises for the purpose of committing an offence or who committed an offence while there. In the Select Committee the amendments were supported by several other Deputies. My amendment is in response to the views expressed in the Select Committee but, for reasons which I shall explain, it does not go as far as the Deputies proposed in that committee. For example, it was proposed there that an occupier would be exempt from liability even if he or she intentionally, and without lawful excuse, injured the trespasser. That could not be justified. Of course, if the occupier has a lawful excuse for inflicting injury, as he or she would have in self defence or in defence of property, that situation is provided for in section 8 (a) which preserves the occupier's rights in that respect.
Leaving aside intentional injuries to trespassers, we could not totally relieve occupiers from the consequences of their reckless disregard in each and every case where an offence is committed. The offence may be an entirely trivial one, such as taking apples or flowers — an offence which is more or less predictably committed by children.
My amendment establishes the principle that an occupier will not be liable for breach of the duty imposed by section 4 (1) (b) in relation to a person who enters the premises for the purpose of committing an offence or who commits an offence while on the premises but — this is an important qualification — it allows the court in an appropriate case to depart from that principle where the interests of justice so require. We cannot foresee all the various sets of circumstances that can arise in this area. It would be prudent to recognise that there may be cases of reckless disregard when the court may have to exercise its discretion if justice is to be done. I hope my amendment No. 21 will be acceptable to the House on this basis.
Reference has been made to paragraph (b) of my amendment. It extends what Deputies are trying to achieve by including an attempted offence which otherwise might not be included in subsection (3) (a). The inclusion of attempted offences is a major extension. Deputy O'Dea made the point about intent but my amendment covers entry on land for the purpose of committing an offence, whether or not it is committed. That is much the same as entering with the intention of committing an offence. Deputy Woods raised the point about an offence committed crossing the county boundary as it were. That is a rather extreme situation. I have gone a long way, as far as I possibly can, to meet the comments made by Deputies in the committee and in the House. I commend my amendment No. 21 to the House.
I welcome the Minister's explanation in regard to subsection (3) (b) of his amendment and the fact that he considers it extends to a person entering premises with a criminal intent. We have a dilemma in that the Minister has come a great deal of the way with us and is obviously anxious to meet us in spirit. However, I know of cases where teenagers have gone into somebody's garden, perhaps to steal apples — not a locking up offence — or, more common nowadays, a bicycle, have fallen and injured themselves and then brought a civil action for damages against the owner.
Where is the reckless disregard?
Where would be no reckless less disregard in this case. A person jumping down from a wall might damage his ankle.
There could be no claim for that.
Our view is that under the present law a person on a premises with criminal intent, not necessarily in relation to the premises, might have grounds for action if he was injured. This could arise in the case of an invitee, that is a person coming in with the permission and in the interests of the occupier but who, unknown to the occupier, was committing a criminal offence. Such a situation is not acceptable, and we strongly urge the Minister to accept our amendment No. 10, which is comprehensive and direct, and seeks to ensure that no person should be able to recover damages against an occupier in the circumstances set out in the amendment.
In these days when we are facing what, in effect, is a crime-wave — since Christmas we have seen a huge increase in the availability of drugs, trespassing, mugging and robbery — we want the ordinary citizen defended as fully as possible. Although I have reservations, which were echoed by Deputy Keogh, I supported the step being taken by the Minister but ask him, before finalising the Bill, to examine the issue further in the context of the Seanad debate which will follow. We recognise that the Minister has gone a long way to meet our requests and we appreciate that — I would not like him to think otherwise. I take a somewhat non-political approach to these issues because it is necessary to produce good law, and that takes time and trouble. That may not be suited to television news programmes where what is required is a few quick words — it is significant that the press gallery is empty, as it usually is when we are discussing the meat of a Bill and issues that affect every householder, farmer and occupier in the country. These issues must be debated fully with a Minister who is prepared to consider what has been said and take the considerable legal advice available to him.
The points I made in regard to amendment No. 21 are generally agreed on this side of the House. I ask the Minister to examine the matter further. In the meantime we are happy to accept what we know to be considerably more than half a loaf and thank the Minister for taking the steps he has. We recognise that it is difficult to find the right solution in this area and we are thankful that he has gone as far as he has.
On a point of information, I intend to accept the Minister's amendment but I am still concerned that paragraph (b) of amendment No. 21 is too narrow a definition. Are we excluding other people who may be present on the property? Perhaps the Minister can allay my fears.
Amendment, by leave, withdrawn.
We now come to amendment No. 11 in the name of Deputy Keogh. Amendments Nos. 12 to 15, inclusive, are related. It is proposed to take amendments Nos. 11 to 15 together. Is that agreed? Agreed.
I move amendment No. 11:
In page 4, lines 25 and 26, to delete "or had reasonable grounds for believing".
Section 4 restricts the duty owed to recreational users and trespassers. However, my concern is that there is a capacity to undermine what the Minister sets out to do in the section. We discussed this matter at a reasonable length on Committee Stage but I am concerned that, rather than dovetailing subsection (1), subsection (2) and the paragraphs contained therein extend the duty owed. There is an invitation to judges to continue to give negligence based rulings. A number of my amendments relate to the degree of duty owed. I am concerned that the courts will have to deal with a hard case and the way to deal with it is by being very precise about the duty owed to recreational users and trespassers. Has the Minister decided to accept these amendments?
These amendments would unduly tilt the balance in favour of an occupier who had shown reckless disregard towards a recreational user or trespasser. The section at present requires an occupier to know or to have reasonable grounds for believing, first, that there was a danger on the premises and, second, that the entrant was or was likely to be not only on the premises but also in the vicinity of the danger. If we delete the requirement that the occupier should have reasonable grounds for believing that these two conditions existed then it would be only too easy for the occupier to say in some circumstances that he or she did not know of the existence of those conditions and the occupier could escape liability no matter how grievous his or her conduct had been.
The same would apply to the deletion of the words "or was likely to be". That is a relevant criterion to be taken into account in deciding whether an occupier acted with reckless disregard. These words occur in the opening paragraphs of subsection (2) which set out the basic conditions governing the liability of the occupier in the sense that the occupier will not be liable if the criteria set out in these paragraphs are not satisfied, but even if the criteria are satisfied the occupier will not necessarily be liable. Regard must be had also to the remaining criteria in the subsection such as the care the entrant took for his or her own safety and so on before determining whether an occupier had acted with reckless disregard towards the entrant. For these reasons I regret I cannot accept the amendments.
I appreciate what Deputy Keogh is trying to achieve but I am advised that the Minister is correct, that this is the approach that is usually adopted. All an occupier would have to say is that they did not know. We will support this provision.
I cannot say I am surprised because the Minister also took this view on Committee Stage. I am not being unreasonable but what we are saying, in effect, is that an occupier need not have knowledge of a danger.
We should be concerned at all times to maintain a balance. The Minister said that these amendments would tilt the balance in favour of the occupier but I do not accept that, it is a question of interpretation. Even if we were to delete those words, the provisions would still be more than adequate. In looking at the wording used in the section it seems that some occupiers will have to be clairvoyants. There will not be a meeting of minds on these amendments.
Amendment, by leave, withdrawn.
Amendments Nos. 12 to 15, inclusive, not moved.
I move amendment No. 16:
In page 4, to delete lines 35 to 38 and substitute the following:
"(d) whether the danger was such that a failure by the occupier to provide protection from the danger for the person and property of the person would reasonably be considered to be an act of gross negligence;".
I am not too perturbed that the Minister has not accepted some of the amendments because important amendments have been accepted. Again, it is a question of degree. I am not a lawyer but in considering legislation politicians should try to deal with it in lay person's terms. Much of the debate will centre on people's perception of liability. That is the reason I tabled this amendment which in itself is not of major consequence but it would have an effect on the confidence of occupiers.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 4, between lines 38 and 39, to insert the following:
"(e) where the person is a minor, regard shall be had to whether or not the occupier was entitled to expect in the circumstances that some adult or other responsible person would take steps to prevent the person from entering the premises:".
The Minister has made some major changes. This amendment seeks to insert a further paragraph to provide that regard shall be had to whether an occupier was entitled to expect that some adult would take steps to prevent a minor from entering a premises. The amendment would protect an occupier where it was reasonable for him to expect that a person in charge of a child would take normal steps to prevent the child from entering the premises. It should be noted that regard would only be had to this paragraph in determining whether an occupier acted with reckless disregard.
If, for instance, the occupier was to see that some young person was under the control of a responsible person, that is, a parent, a guardian or an adult, this should be taken into account in determining whether he recklessly disregarded the danger. Whether the person is a minor, in considering what duty the occupier owed to entrants, regard should be had to whether the occupier was entitled to assume that the responsible person would take reasonable steps to prevent the minor from entering the premises.
This issue arises in the countryside where people enter farm land on which there are natural dangers. The purpose of the amendment is to give some degree of protection to the occupier — for example, where a person brings a group of young people onto a property and they are welcome to avail of the facilities there a certain degree of care should be expected from the person in charge of the minors.
In the amendments discussed earlier I have provided for the situation where an entrant is actually on the premises in another's company and where account should be taken of the extent of the supervision and control the other person might reasonably be expected to exercise over the entrant's activities. Deputy Woods's amendment deals with the situation before the entrant — a minor — enters the premises and where the occupier might reasonably expect that some adult or other responsible person would take steps to prevent the minor from doing so.
I appreciate the motivation underlying this amendment. However, under the present law parents and others in control of children have a duty of care as to their welfare and, as the Law Reform Commission pointed out in its report on occupiers' liability, a parent who carelessly permits a child to wander from home to a neighbouring or, indeed, far-off property where the child sustains injuries will be held liable for those injuries to the child. Under the Bill the occupier of the property where the injuries were sustained will be liable only where it is shown that he or she acted with reckless disregard towards the presence, or likely presence, of the child on the property. In that case liability may be shared between the occupier and the parent.
Section 4 provides that, in determining whether an occupier acted with reckless disregard, regard must be had to all the circumstances and these would include the fact, if it is a fact, that the parent of the child should have prevented it from entering the premises. More specifically, in paragraph (b) regard must be had to whether the occupier knew or had reasonable grounds for believing that the entrant was in, or was likely to be in, the vicinity of the place where the danger existed. It would be highly relevant in that context if the circumstances were such that the occupier was entitled to expect that the child would be prevented from entering the premises by its parent or guardian. If that were so, the occupier would not have had reasonable grounds for believing that the child was likely to be on the premises and it is difficult to see how in those circumstances the occupier could be held to have acted with reckless disregard towards the child. Similar considerations would apply if the injured person were an adult but was mentally handicapped. For these reasons I consider that the point is already adequately catered for in section 4 (2), particularly in paragraphs (b) and (c), and I regret that I am therefore unable to go along with it.
I accept the Minister has made major changes in this area and I think people generally are very satisfied with the steps taken. I accept the Minister's explanation of this amendment and I will not press it.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 5, line 3, to delete "and".
Amendment agreed to.
I move amendment No. 19:
In page 5, line 5, to delete "danger" and substitute "danger; and".
Amendment agreed to.
I move amendment No. 20:
In page 5, between lines 5 and 6, to insert the following:
"(i) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.".
Amendment agreed to.
I move amendment No. 21:
In page 5, between lines 5 and 6, to insert the following:
"(3) (a) Where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier shall not be liable for a breach of the duty imposed by subsection (1) (b) unless a court determines otherwise in the interests of justice.
(b) In paragraph (a) `offence' means an offence against the person or property of the occupier or of a member of the occupier's family who is ordinarily resident on the premises, and includes an attempted offence.".
I know it is not appropriate at this stage but the Minister did not answer the question I asked on this amendment.
The definition of an offence is clearly specified in paragraph (b) and, for the purposes of the Bill, an offence will be as indicated.
Amendment agreed to.
Acting Chairman
We now come to amendment No. 22 in the name of Deputy Woods. Amendment No. 23 is an alternative and amendment No. 24 is related to amendment No. 23. It is proposed therefore to take amendments Nos. 22, 23 and 24 together.
I move amendment No. 22:
In page 5, to delete lines 6 to 10.
This amendment seeks to delete the part of section 4 (3) which states: "Notwithstanding subsection (1), where an occupier of premises provides a structure thereon for use primarily by recreational users, the occupier shall owe a duty towards such users in respect of such a structure to take reasonable care to maintain the structure in a safe condition". While the subsection is limited to structures provided for use primarily by recreational users, it would apply to a wide variety of structures. For instance, if a farmer does not wish a gate to be continually left open and provides a stile beside the gate for recreational users, he will be liable for any injury sustained as a result of the bad condition of that stile. If an occupier provides a park bench on his property for the benefit of recreational users he will be liable for the maintenance of that bench. I am concerned that as a result of this subsection occupiers will be very reluctant to provide such structures for recreational users and they may even remove structures.
Amendment No. 23 in the Minister's name, which proposes to delete "where an occupier of premises provides a structure thereon for use primarily by recreational users" and substitute "where a structure on premises is or has been provided for use primarily by recreational users", would render the section ambiguous. I am proposing that the whole reference to this matter be deleted. In effect the Minister, in amendment No. 23, is extending the duty on the occupier to maintain structures which he may not even know exist because the amendment refers to structures other than those provided by the occupier. For example, the provision may relate to a structure on a remote part of an occupier's land or a bridge over a ditch and the occupier would be liable for its maintenance. From that point of view we are concerned about the Minister's amendment. We prefer our amendment, which proposes to delete certain words.
I would be interested to hear the Minister's view on his amendment No. 23 and amendment No. 24 which effectively follows on from it. Section 4 (3) states "Provided that... his or her duty towards a recreational user thereof in respect of such structure shall not be extended by virtue of this subsection". That relates to an occupier's duty of care towards a recreational user. Amendment No. 24 proposes the deletion of the words "where an occupier of premises provides a stile, gate, footbridge or other similar structure thereon not for use primarily by recreational users....". We are fearful that the Minister is expanding an occupier's duty of care for structures which he or she may not know exist. We consider there is a difficulty in that regard and that our amendment No. 22 is preferable.
I do not have that difficulty. We had considerable discussion on this matter on Committee Stage and I am of the view that if a structure is provided for use by recreational users, it is reasonable to expect it should be sound and maintained by the occupier. On rereading the Bill on Report Stage, I do not have any great difficulty with the provisions proposed by the Minister. I appreciate the purpose of the amendments he tabled and I do not consider that the provision in section 4 (3) should be omitted from the Bill. That would not solve anything. I have only minor points of disagreement with Deputy Woods on the Bill. As a parent, I consider that if structures are provided for use by children, it is reasonable to expect that they should be maintained in a safe condition.
There was a full discussion on this amendment on Committee Stage. At the time I said I was opposed to it in principle and that is still my view. Section 4 (3) proposes that where an occupier provides a structure primarily for use by recreational users the occupier will have a duty to take reasonable care to maintain it in a safe condition and amendment No. 22 proposes to delete that provision. I must emphasise that the duty of care imposed by the subsection applies only to structures provided primarily for recreational users. It does not apply to any other structures on the premises which are for the use of the occupier and his family in the ordinary way. If an occupier has a structure on his or her property that will be used primarily by recreational users, and if that is the primary purpose of providing it, I cannot see why that occupier should not be obliged to maintain it in a safe condition. Otherwise, we would allow people to put up ramshackle structures or to let existing ones become dangerous through lack of maintenance without any remedy unless it could be proved that they had acted with reckless disregard for recreational users, which is a lower standard of liability. Persons who use facilities provided specifically for them are entitled to expect that they will be kept in a safe condition regardless of whether they are in an urban playground or in the open country. This provision is in the interests of the safety of people who are expected to use those facilities. For those reasons I am unable to accept the Deputy's amendment. My own amendments to the subsection and its proviso are aimed at making it clear that these provisions will apply no matter when the structures concerned were provided. As the text stands it appears to apply only to structures provided by the existing occupier. Clearly the need to protect recreational users from unsafe structures put there primarily for their use applies no matter who erected them. The same applies to the proviso which specifically ensures that the occupier's duty is not extended to structures which are not for use primarily by those users.
The Minister has outlined the problem which relates to structures provided primarily for use by recreational users. Such users are not customers and do not fall into the category of visitors, as stated in the section; they are recreational users or trespassers, the Minister is purposely and positively including old structures as well as new ones in the provision. The message in that is that people should ensure that whatever structures are on their farms, which may cover a wide area, are maintained in a safe condition. As was stated on Committee Stage, that is acceptable from the point of view of people, such as those in the public sector, who are providing structures in parks. Following the passage of this Bill they will have to take on a higher duty of care and greater responsibility and provide for that financially. That is one of the issues that arises.
The provision affects all community groups because such groups provide structures and facilities primarily for recreational users and, consequently, they would be bound by this section. That is one of the issues that was the cause of much difficulty in the first instance. People who in all innocence, provided facilities in the spirit of wanting to be community-oriented and to help development suddenly found that, because they could be deemed to be providing such structures for recreational users, they incur liability for their maintenance. It does not appear that their problems, which are great, will be solved by this Bill.
We might ask, why do we have such a serious drugs problem and other major problems in our society? However, when we investigate matters we find that communities who want to provide recreational facilities are discouraged from doing so. Therefore, we are stipulating that any past structure, or any about to be provided, must be raised to the standard of care and maintenance applicable to the providers of public services generally, whether it be the Office of Public Works in regard to parks or whoever.
I am not happy about this section. We may well be worsening the position. No doubt this will be further examined by the Seanad. While our natural inclination would be to vote against this provision and its implications, we will not press it. The Minister in his amendment wants to include any structures, whether located on a farm, premises, within a community or whatever, provided primarily for recreational users. There is a difficulty in defining which facilities are provided primarily for recreational users and which will probably give rise to much future discussion and argument.
The Minister can further examine our expressed concerns. We will not press the issue any further at this point.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 5, lines 6 and 7, to delete "where an occupier of premises provides a structure thereon for use primarily by recreational users" and substitute "where a structure on premises is or has been provided for use primarily by recreational users".
Amendment agreed to.
I move amendment No. 24:
In page 5, lines 11 to 13, to delete "where an occupier of premises provides a stile, gate, footbridge or other similar structure thereon not for use primarily by recreational users, his or her duty" and substitute "where a stile, gate, footbridge or other similar structure on premises is or has been provided not for use primarily for recreational users, the occupier's duty".
Amendment agreed to.
I move amendment No. 25:
In page 5, to delete lines 21 to 27.
In regard to the Minister's next amendment, No. 26, I expressed concern about the reasonable steps an occupier should be expected to take to bring a notice to the attention of any visitor on his or her lands or property. Section 5 (2) (b) (ii) reads:
in case the occupier purports by notice to so restrict, modify or exclude that duty, the occupier has taken reasonable steps to bring the notice to the attention of the visitor.
I was particularly concerned about that provision, which takes us back to what the Minister would consider to be reasonable. The Minister's amendment reads:
In page 5, between lines 27 and 28, to insert the following:
"(c) For the purposes of paragraph (b) (ii) an occupier shall be presumed, unless the contrary is shown, to have taken reasonable steps to bring a notice to the attention of a visitor if it is prominently displayed at the normal means of access to the premises.".
That is perfectly reasonable, the onus being placed on the occupier not being too great. I find that perfectly acceptable and I am withdrawing my amendment No. 25.
Amendment, by leave, withdrawn.
Bill recommitted in respect of amendment No. 26.
I move amendment No. 26:
In page 5, between lines 27 and 28, to insert the following:
"(c) For the purposes of paragraph (b) (ii) an occupier shall be presumed, unless the contrary is shown, to have taken reasonable steps to bring a notice to the attention of a visitor if it is prominently displayed at the normal means of access to the premises.".
Section 5 (2) provides that an occupier may by express agreement or notice restrict, modify or exclude his or her duty towards visitors, that is the common duty of care. Such a modification will not bind a visitor unless it is reasonable and is by notice unless the occupier has taken reasonable steps to bring the notice to the attention of the relevant visitor.
It has been represented to me that some guidance should be included on what would constitute reasonable steps, that, if a notice is prominently displayed at the normal means of access to a premises, that should constitute prima facie evidence that reasonable steps have been taken to bring it to the attention of the visitor. That is a fair point to which I am giving effect in this amendment.
I thank the Minister for having dealt with that point.
An occupier can restrict his duty to visitors only, not to recreational users or trespassers. This amendment stipulates that, when he does so by way of notice, unless the contrary is shown, he shall be deemed to have effectively done so by a normal notice displayed at the entrance to the property or premises. This is a good, reasonable amendment. Nevertheless, such notice could become covered by the leaves of a tree which would invoke an argument about its necessity to be prominently displayed.
The Minister's amendment is reasonable. I thank him for having taken this point on board.
Amendment agreed to.
Amendment reported.
Acting Chairman
Amendment No. 27 in the name of Deputy Keogh. I observe that amendments Nos. 28 and 29 are alternatives. Therefore, I suggest that amendments Nos. 27, 28 and 29 be discussed together by agreement.
I move amendment No. 27:
In page 6, lines 13 to 19, to delete all words from and including "if the occupier" in line 13 down to and including "otherwise" in line 19.
The Minister might very well get a reputation for having been very reasonable, having taken on board various of our earlier amendments. There was considerable debate about occupiers' liability for the negligence of independent contractors. Our concern had been that far too much onus was being placed on an occupier to ensure that work had been properly carried out. I was concerned that an occupier would have to examine every nail and bolt and that was going too far. The Minister may not have gone as far as I might have but as his amendment is reasonable I can withdraw my proposal.
We also welcome the Minister having taken our views on board. Indeed Deputy Keogh's amendment is similar to amendment No. 29 which proposes the deletion of the words "and that the work had been properly done". In his amendment No. 28 the Minister proposes deleting lines 17 to 19 and substituting "the work concerned) unless the occupier has or ought to have had knowledge of the fact that the work was not properly done". That is closer to our proposal while it is not as water-tight or succinct. I wonder why he omitted the words "unless the contract... expressly provides otherwise". What would happen if both parties did not want the occupier to be liable? The Bill provides that the occupier cannot contract out of his duty. If the Minister accepts our proposal and there is agreement between the two parties, the occupier could be indemnified or opt out of his or her duty. The Minister's amendment does not cover circumstances in which both parties agree.
We accept the Minister's amendment. It goes a long way towards meeting what we propose and improves the position with one question mark about why the Minister proposes to delete the term "unless the contract expressly provides otherwise".
If an independent contractor and an occupier wish to do a deal making the contractor liable, I assume it would stand. Now that the Minister has excised the term "unless the contract expressly provides otherwise", a contractor can be dragged into court even though an independent contractor may have agreed to accept liability. This is ludicrous and I see no reason for deleting a provision which provides, statutorily, that a contract can be drawn up between an occupier and an independent contractor stating that the occupier cannot be sued on foot of work carried out by the contractor.
I thank the Minister for accepting the thrust of the case we made on Committee Stage. While his amendment goes a long way towards meeting our proposal it is reasonable to expect that an independent contractor should not escape liability if he or she carries out shoddy work which makes property unsafe and the occupier is fully aware of this. I am less happy with the provision in the Minister's amendment which states that unless the occupier has, or ought to have had, knowledge of the fact that the work was not properly done, he cannot escape liability. The Minister is introducing a note of uncertainty here which I am sure will give rise to litigation. I would prefer the position to be more definite whereby if the occupier has knowledge of the fact that the work was not properly carried out, he or she may escape liability. Will the Minister explain why the provision about the right of a person to contract with an independent contractor in respect of liability was deleted from the legislation?
I presumed the answer was obvious. Deputies Woods and O'Dea are concentrating on the relationship between the occupier and independent contractor, but we are talking about the position of an injured third party. While it would be acceptable for the occupier and the independent contractor to have internal contractual arrangements inter se, the rights of a third party would be a separate matter and would arise by statute, independent of the contract they draw up.
I thank the Deputies for their reasonable response to the position.
Surely they could draw up a contract on who should be sued.
They could draw up a contract between themselves and while that would be valid, it would not affect the position of a claim by a third party who would not have a connection with it.
In the select committee I agreed to consider amendments put forward by Deputies Keogh and Woods, which they have now retabled.
Section 7 deals with the circumstances in which an occupier may, exceptionally, be liable for injuries caused by the negligence of an independent contractor who has left the occupier's premises in a dangerous state and an entrant is injured as a result.
It provides that the occupier will not be liable if the occupier has taken all reasonable care in the circumstances. What is "reasonable care" is spelled out as including such steps as the occupier ought reasonably to have taken to satisfy himself or herself that the contractor was competent to do the work in question. I think we are all agreed up to this point.
The section goes on to include steps that the occupier should reasonably have taken to ensure that the work had been properly done. It was on this aspect the debate concentrated.
I took the view that the provision was reasonable in that it allowed a measure of flexibility depending on the nature and extent of the work performed by the contractor. If, say, a substantial extension was being built on a house, most people would ensure that the work was supervised by a qualified person or at least checked by such a person when it was completed. For very minor works that would not be expected. I may also add that such a provision was recommended in the Law Reform Commission's report.
The case was made, however, that this requirement would entail a constant cycle of checking and rechecking before an occupier could be sure that the contractor was not negligent, and that when an occupier was satisfied that the contractor was competent there should be no liability as occupier arising out of the contractor's negligence. That goes too far. What if the occupier is aware that the contractor has been negligent, that as a result the premises are in a dangerous state and a person is injured? An occupier should not escape liability by pleading that he or she knew there was a danger on the premises but that it was not up to occupier to do anything about it as it was the contractor's fault for not having done the work properly.
In this Bill we are trying to strike a balance between, on the one hand, the rights of occupiers against unreasonable claims by entrants and, on the other, the rights of entrants to premises not to be exposed to dangers of which the occupiers are aware. In this case the balance would swing too far against entrants if we were simply to delete, as proposed, the words "and that the work had been properly done" or to go even further, as Deputy Keogh suggests.
What I am putting forward in my amendment as a solution is to delete these words, but to make the occupier liable if he or she had knowledge, or ought to have had knowledge, of the fact that the work was not properly done. In other words, liability will arise only if the occupier knows, or should know, that the work has not been properly done and constitutes a danger to an entrant. That will be a question of fact in each case. This is a reasonable proposition and I am grateful to my colleagues for accepting that.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 6, to delete lines 17 to 19 and substitute "the work concerned) unless the occupier has or ought to have had knowledge of the fact that the work was not properly done".
Amendment agreed to.
Amendments Nos. 29 and 30 not moved.
Bill reported, with amendments, and received for final consideration.
Question proposed: "That the Bill do now pass."
I am pleased this difficult and complex legal Bill has reached completion in Dáil Éireann. It is a good Bill. I have been engaged in listening exercises inside and outside the House in respect of the many and varied representations made to me and my Department in connection with it. The intention at all times was to strike a fair balance between the rights and needs of occupiers and those of entrants to lands as visitors, recreational users and, occasionally, trespassers.
I believe we have achieved a fair, reasonable and just balance. I express my appreciation to Deputies on all sides of the House for their balanced and reasonable contributions. They have all benefited the Bill. I also express my thanks to the various farming and other organisations that had an input to the evolution of the Bill. Last, but not least, I express my thanks and appreciation to the staff in my Department who worked long and hard in producing the end result.
I join the Minister in welcoming the Bill as amended in the House. We are happy to see the passing of this legislation which has been in incubation for some years now, when one considers the reports of the Law Reform Commission and the various proposals. I thank the Law Reform Commission for the work it put into this which was of great value to everybody concerned on both sides of the House. Members on both sides of the House found it particularly helpful to have the views and considerations of the Law Reform Commission available to them. As a result, many of the technicalities were at least elucidated for us and we could consider them in the knowledge that they dealt with technical matters and real and important issues. It is valuable to recognise the work of the Law Reform Commission in this regard and the work subsequently carried out by the Minister's officials on this particularly complex legislation. This is difficult legislation to deal with both from a Government and Opposition point of view and it caused great concern throughout the country. We listened to those concerns and put them to the Minister.
The Bill is far better now than when it was initiated, as a result of various representations, the consideration given to it by the select committee and on Second Stage. I thank the IFA and the ICMSA for the clear expression of their views in relation to the Bill. Many groups involved in sporting and recreational activities were concerned that the farming community in particular, and landowners generally, were required to restrict people entering their lands because of the existing laws. As a result of this Bill, their duty of care and responsibility will be more clearly defined and their position will be safer in that regard. In that respect, the House has done a very good job in finding the necessary balance.
On Committee Stage we highlighted difficulties with the Bill but the Minister was particularly forthcoming and generous in regard to those. While he stood his ground on Committee Stage and gave us the standard replies, nevertheless he considered the points of view and came back with sensible and reasonable amendments on Report Stage. Of course, that is the way the House should work and in that respect the Minister provided a good example of how to meet the needs of Members in regard to important legislation.
I will endeavour to emulate the Minister.
I look forward to that with bated breath.
It would be interesting to work on the Bill with the Minister of State Deputy Rabbitte.
The Bill has been dealt with thoroughly by the Minister, the committee and the House. As I was saying before I was interrupted by the Minister of State——
We have been emulating each other now for years.
——there are other issues about which we are concerned and I hope the Minister takes the opportunity in the Seanad to reflect on them. Time for reflection is always useful in these matters. I congratulate the Minister on what he has done and we have pleasure in supporting the Bill.
I am pleased with the passage of this Bill which will alleviate the concerns of landowners and householders. The Minister has tried to maintain a balance in the Bill. I have not agreed with him on every aspect of it but he went a long way to address the issues of minors and criminal intent.
The Bill is now much improved from that which was originally initiated. The Minister deserves credit for being open and reasonable in responding to the arguments on Second and Committee Stages — unfortunately, that is not always the case with legislation. Perhaps it is also due to the efforts of the many groups and organisations who lobbied intensely and who put forward clear and considered arguments about the various issues. That is important because we must listen to what people say. We, in turn, must put the best possible arguments to the Minister.
It was also useful to have the report of the Law Reform Commission. I too join in thanking the Minister's officials for their briefings. Obviously they listened to us very carefully also. I do not believe there are any major outstanding issues in the Bill but I am sure there will be a good debate on those in the Seanad. I hope the Minister will be equally reasonable there.
As the mover of a Private Members' Bill in this area over a year ago, I am delighted that this Bill will be passed. I congratulate the Minister for succeeding in steering this complex legislation through the House so professionally and for being flexible and reasonable in his approach. I believe he has gone as far as he could in the circumstances to satisfy the demands of the various farming organisations and other groups. He has endeavoured to strike a fair balance between the rights of occupiers and the rights of entrants to land for various reasons. He has included in the Bill all the principles I tried to enshrine in the Private Members' Bill I introduced here.
I hope the passing of this Bill will now remove the terror in respect of this whole issue and that it will ensure the continued use of land for recreational purposes. I hope it will mean that the country side will be accessible to everyone, including urban dwellers, recreational users and tourists because land is crucial to the future of our tourism industry. The Bill will go a long way towards ensuring that occupiers will have confidence in allowing people on their property. Equally, entrants will feel confident that they can enter lands knowing exactly where they stand as regards the law. They will no longer be reluctant to enter people's property. I contratulte the Minister on the succesful passage of this very complex legislation.
I had the opportunity to have exchanges with the Minister on Committee Stage and I am delighted to contribute at the conclusion of this Bill. When one considers the confusion and anxiety that prevailed prior to the introduction of this Bill one realises the difficulty in introducing a Bill of this kind. It was a difficult task, a challenge that had to be taken up because the people felt they were not being treated fairly and the Minister had to ensure that a fair and reasonable balance was struck between the rights of the occupier and those who for one reason or another had occasion to use their property.
Deputy Woods tabled a number of amendments on Committee Stage which clearly articulated our concern about what we saw as a lack of balance. On Committee Stage we argued our case trenchantly on a number of issues relating to minors and those who would trespass with criminal intent. We were unanimous that people trespassing with criminal intent should not have a right to claim against the occupier. The Minister has come some considerable way in addressing that and his response is reasonable. I compliment him on that.
Another area causing concern on Committee Stage was where an occupier provided a facility for recreational users. We all argued strongly that the balance of advantage and right should rest with the occupier who had gone to the expense, trouble and inconvenience of providing recreational facilities. The Minister elaborated on the implications of his amendment and this goes a considerable way to addressing our concerns.
I join with other speakers in complimenting the Minister on the successful passage of this Bill and no doubt it will be further enriched by its passage through the Seanad.
Question put and agreed to.
Sitting suspended at 1.05 p.m. and resumed at 1.10 p.m.