I move:
That Seanad Éireann condemns the Government for the failure to amend the law in relation to the liability of farmers and other property and land owners for all accidents occurring on their property even where the injured party is trespassing.
I am amazed the Government did not take the opportunity to amend legislation in this area during the lifetime of the last Dáil and the current Seanad. It has been a high priority with all the farming organisations, and with individual farmers, who are extremely concerned about their liability for people coming on to their farms.
Currently, farmers are liable for all accidents occurring on their lands even if the person who has the accident, and is making a claim, is uninvited or is trespassing. This is totally unacceptable and should be changed. We are amazed that nothing has been done about this problem and we are asking this House to condemn the Government for their failure to introduce such legislation. Farmers and property holders should not be asked to take the legal and financial risks involved. The situation should be regularised.
We have a long history of allowing sporting and recreational events to take place on farms — hunting, walking, etc. It would be a pity if these activities were curtailed, but we are facing the curtailment of opportunities for sporting activities on the land of Ireland due to the failure of the Government to deal with the problem.
Many farmers have expressed their concern at the present ludicrous situation. There is a high level of goodwill, traditionally, between the farming community and the various sporting organisations. It is a tradition going back centuries that our lands are open for anybody to enjoy for recreational or sporting activity. It is a pity this is now being put under threat; it is a pity the Government did not head-off this situation and introduce legislation to rectify it.
We are undergoing the biggest crisis in unemployment in the life of the State and we are trying to promote tourism as one way of creating jobs. We are also asking the farmers to develop agri-tourism and we are inviting the tourists to our beautiful land to enjoy the scenery, to climb our mountains, see our rivers etc. This will be put in jeopardy if the farmers decide — and they must do eventually — that they can no longer tolerate people coming onto their lands because of the situation prevailing in regard to liability.
We on this side of the House accept that the occupier owes it to a person invited on to a property to take reasonable care to protect that person. There should be proper insurance to cover that. However, we do not accept that they should have responsibility for people who come on their land uninvited or who trespass. I am amazed the law on this matter has not been changed.
Access to farmland is unrestricted. It will be very hard to control the situation even if the farming organisations, as they have already suggested, advise farmers to stop people from coming onto their land. It would be very difficult to implement such a policy and it would have a marginal effect on the problem. It is necessary for the Government to tackle this and change the law to accommodate the situation. Farmers are owed this by the Government; it is a pity it was not done during the lifetime of this Government.
There has been a dramatic increase in the level of personal injury claims and we are developing a mentality which is almost making an industry of litigation. Some local authorities are all too well aware of the burden the level of claims for personal injuries places on them. It is generally accepted that many of these are fraudulent to some extent but that is hard to prove. The farming community is afraid this approach will spread to people who go on land and that people will specifically go on farms and fake injuries in order to make claims. We accept there should be adequate checks and balances in the insurance system to look into these claims but the insurers tell us of the difficulties they experience in trying to ensure that all claims paid are genuine.
The law in this area is still governed by common law precedent, as established by judicial decisions handed down in court cases. In the UK and Northern Ireland the situation has been updated. They have taken care of the problem and regularised the situation by statute law, namely, The Occupiers' Liability Acts of 1957 and 1984. It is 35 years since they first tackled this problem. A farmer in England, Wales or Northern Ireland has available to him a clear legal statement of his rights, obligations and potential liability towards authorised visitors and, to a lesser extent, towards trespassers.
The UK legislation apportions a common duty of care on a property owner, or on a farmer, towards all visitors on the land. This is a duty to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe while on the property for the purposes for which he is invited or permitted to be on the farm or other property.
There is a much more limited duty of care which UK landowners owe to trespassers. It only arises in respect of a risk which is known to the landowner, who also has reasonable grounds to believe trespassers stray into that area. He must also know the risk is one against which he may be reasonably expected to offer the trespasser some protection. The law is very tight in the UK with regard to this. The limited obligation towards trespassers will be generally satisfied if sufficient warning signs are used to discourage such persons from incurring the risk in question. In Ireland a sign indicating a hazard may lessen liability but it does not remove it.
In the absence of modern statute law on landowners' liability in the Republic of Ireland, the old common law categories still apply. Like any employer, farmers are required to take reasonable care to provide for the safety of their employees. In the case of invitees, that is, people who are on the farm with the permission or consent of the farmer or who visit a farmer, it is the duty of the farmer to protect them from unusual dangers which they would not expect to find. With regard to people a farmer allows onto land such as for hunting, shooting, fishing and so on, since they are getting free access to land, they must take the land as they find it. The only duty a farmer has is to prevent injuries from hidden dangers on the land.
Trespassers present the principal problem areas in which the law requires updating, and it is to this area our motion refers. The position regarding trespassers at present is quite unclear but there have been cases decided against property owners especially where the injured trespassers were children. The cases were mainly in the area of public utilities and there have been some claims against the ESB in this respect. It is accepted that the same legal requirement and the same legal approach applies to the farmers as it does to other property owners.
Another category exists under common law, that of people holding rights to a farmer's land. Although they do not own the land, other persons may own certain rights over land, not through licence given by the farmer but because such rights were retained by them when the land was originally sold. This often causes difficulties. I would like the Minister to comment on the responsibilities of people who have rights-of-way over land, and on the liability of the farmer for accidents occurring where people have a right-of-way over his land. The Minister will appreciate the concern farmers have in this area, because it is a feature of Irish farming that people have rights to pass over property. We see that every day in rural Ireland.
I want to express my concern and disappointment that although this issue has been raised by the farming organisations for several years, it has not been tackled by the Government. I ask the House to agree with our motion and condemn the Government for their failure to amend the law in this area.