Amendments Nos. 2 and 10 are related to amendment No. 1 and all may be taken together. Is that agreed? Agreed.
SECTION 1.
I move amendment No 1:
In page 2, subsection (1), line 19, before "disease" to insert "serious".
In general amendments should be made available sooner before Committee Stage of a Bill. That is not a comment on the working of this committee; it is a general principle. I am grateful for the briefing we have received this evening but once we have put forward our amendments it is not as beneficial as it might be before the debate on Second Stage of a Bill. Perhaps the Minister might consider that.
My amendments are to introduce the concept of seriousness in both cases. They may seem small adjustments but they seek to underline how far we have deteriorated to the compensation culture. This Bill should avoid facilitating that attitude. We see trivial claims in the courts and these amendments seek to raise the threshold of seriousness in relation to the aspects of disease and impairment. It is intended as a signal to people and an aid to the Judiciary as we see hard cases making bad law.
It would be a useful sign for the rest of the Bill if the Minister was to accept these amendments, which are similar to Deputy Woods's amendment. I was glad the Minister was true to his word with regard to another section of the Bill where we have an identical amendment.
Amendment No. 10 reads:
In page 4, between lines 17 and 18, to insert the following subsection:
"(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.".
The purpose of my amendment is to provide that the occupier would not be liable to a trespasser in respect of anything other than permanent injury to property or person, or anything causing or contributing to permanent injury. The benefit of this amendment is that, while it would protect people suffering serious injury, it would rule out the vast majority of claims against occupiers which usually fall in the category of something less than permanent injury. It would exclude liability for scrapes and bruises and for sprains and would relieve the occupiers of the vast bulk of claims made against them. It leaves open the opportunity to seek damages where a person suffered injury which was likely to be of a permanent nature.
It relates only to the duty of occupiers to trespassers and it reflects a point made by Deputy Browne about how onerous the duties of occupiers should be to trespassers. The result would be that the trespasser will not be able to claim for minor injuries. That is the intention of the amendment. These injuries cause many of the vexatious and ill founded claims. It would be preferable to distinguish between such minor injuries and the more serious ones.
Deputy Keogh's and Deputy Woods's amendments seek to exempt occupiers from liability unless the injuries caused by their want of care or, as the case may be, reckless disregard, are of a serious or permanent nature. Deputy Keogh's amendment would cover injuries to entrants of all kinds whether visitors, recreational users or trespassers and would require the injuries to have resulted in a serious disease or to constitute a serious impairment or physical or mental condition. Deputy Woods's amendment relates to only trespassers and would require the injury to be of a permanent nature or to cause or contribute to any permanent ailment, disability or deformity before an occupier would be liable. The occupier would in no case be liable for damage to the property of a trespasser.
I appreciate the concern of the Deputies that claims can be made under the present civil liability law for minor injuries caused by someone's negligence, but it would be a radical change to insist that only people who had suffered a serious or permanent injury should be entitled to redress. Moreover, I do not believe we can have a rule for the liability of occupiers separate and distinct from the general law governing the liability of all persons for injuries they caused to others by their want of care. The definition of injury in the Bill is taken word for word from the Civil Liability Act, 1961, which sets out the general law in this respect. The implications of having a separate rule go far beyond the scope of the Bill.
As regards the merits of the proposals, I do not see why we should not impose liability on occupiers who do not take reasonable care to see that their premises are kept in such a state that visitors to them do not come to any harm, whether the visitors are customers in a supermarket, patrons in a cinema or the neighbouring farmer's children who have come to play, even if the injury, such as a broken leg, cannot be classified as involving a serious or permanent physical or mental impairment. Nor do I see that an occupier who injures a recreational user or trespasser intentionally or behaves towards them with reckless disregard so far as the state of the premises is concerned should have no liability unless the injury is serious or permanent.
The liability of occupiers under this Bill for injuries to recreational users and trespassers is well below that under present law and, indeed, under the law of our neighbouring jurisdictions. In my view it would be wrong in principle to go further and exempt occupiers altogether from liability for their want of care or reckless disregard. Indeed, any such exemption could easily lead to a slackening in their attitudes towards the safety of those using their premises. For these reasons I regret I cannot accept these amendments.
I support Deputy Woods's amendment. He is trying to eliminate a plethora of mischievous claims by individuals who would seek to exploit an opportunity to tap in on the "dial a witness" or "hire a witness" scene, which is prevalent in Dublin at present. If the type of control which Deputy Woods seeks to insert in the Bill is not there, what is to stop an individual on the way home from a disco coming into my garden, spraining his ankle and going to his solicitor the following morning and taking me to court? It would appear that there is potential for a plethora of claims from individuals who would be mischievous enough to claim.
That claim culture is prevalent at present and is growing. The Minister will probably retort by saying that the occupier should take due care and there should be no evidence of reckless. However, it boils down to the legal interpretation of the formula of words in the Bill and what particular interpretation a judge might take. We must extremely careful in how we proceed. Even bearing in mind what the Minister said and his reservations about Deputy Woods's amendment, it merits serious consideration.
I do not agree with the amendments and I agree with what the Minister said. In my opinion this Bill is about the duties of property owners; it is about defining the circumstances in which property owners are negligent or are considered to be negligent. The thrust of the Bill is to reduce the duty of care and a case has reasonably been made for reducing that duty. If we accept this and a number of other amendments, we would reduce it far below the threshold of what would be acceptable.
As regard the amendments which refer to serious and not so serious damage, etc., we are getting away from the central principle, which is that we are trying to determine the circumstances in which occupiers are negligent. It is the nature of the act of negligence which we are debating, not the results of it. In my view, if we decide that an occupier is negligent, then he or she should be responsible for all the consequences of it, whether they are serious or not so serious.
I take the Minister's point about somebody who is intentionally injured. I agree that it would be incorrect to restrict damages or to grade the injury in such a case. However, I agree with the general thrust of both amendments. To put it bluntly, people look for potholes, lampposts, etc. in order to injure themselves and claim compensation. As Deputy Woods rightly said, the effect of his amendment would be that a majority of claims would be excluded. We would be saved the spectacle of people going around wearing corsets, dog collars——
Helmets.
——and other aids which are ritually employed to magnify the nature of injury so as to claim the maximum compensation from the unfortunate defendant or insurance company.
Deputy Fitzgerald spoke about people who voluntarily allow themselves to be injured, whom we have all come across. There are also people who trespass with criminal intention. If they suffer a slight injury, are they entitled to bring a claim against an occupier under this legislation? The net effect of the legislation as it stands is that they are entitled to. I do not know how any right thinking person could agree with that proposition, but that will be the law if this legislation is passed. There is an extraordinary situation in this country whereby if somebody with criminal intent enters a premises or another place that is occupied and injuries their big toe, they have a case and can get thousands of pounds in damages. If a person is beaten half to death as a result of a pub brawl or being set upon, they can only get medical and out of pocket expenses. It is a peculiar scale of values, to say the least.
The amendments in the names of Deputy Woods and Deputy Keogh make a reasonable attempt — perhaps somewhat crudely — to redress the balance somewhat. I am not being partisan when I say I prefer the amendment in the name of Deputy Woods. If Deputy Keogh will excuse me for saying so, there is a technical difficulty with her amendment. She put the qualification in the definition section, which does not achieve her objective. I believe she meant to put it in the substantive section, section 5 (5). If it is inserted into the definition section, it would not change the legislation as it stands. I strongly support the amendment in the name of Deputy Woods.
This debate has gone on for some time. The Law Reform Commission deliberated at length and the matter was discussed in academic or other circles long before it dealt with it. We have had its report for more than a year and the legislation is now before the House. We cannot let the old system continue. We must take a stand in relation to the compensation culture which has overtaken this country to the detriment of local authorities, businesses, jobs, etc. This is as good a place as any to take a stand and Deputy Woods's amendment would be a good start.
I suffer from the impediment, if one could call it such, that I am not a solicitor, although I am a landowner.
That is not an impediment.
Some would say that. From my reading of the Bill, in which I have taken a great deal of interest as has everybody else, it has made the position of the trespasser much worse, and rightly so in my view. The Bill tilts the duty of care which is expected to be extended by a landowner to a trespasser in the right way. That is generally accepted across the board. The degree to which that happens is another story.
When I first read the amendments in the names of Deputy Keogh and Deputy Woods I thought that they made good sense. However, I have to agree with the Minister that it is very difficult to define minor and serious injuries. I am not sure if that can be done through legislation.
Many people in rural Ireland, including myself, find it very difficult to understand why a landowner should be held responsible to any degree for a trespasser who, by definition, is univited. Deputy Kemmy asked earlier why the mountaineering association was on the same level as the IFA or the ICMSA. The obvious reason for that is that if people want to use a facility, it is very important that there is good will between the people who own the property and those who use it for recreational purposes. If there is a major gulf between them, it is to nobody's benefit. That is why so many of those involved in leisure pursuits have a vital interest in this Bill. I take my cap off to the Minister for going as far as he did.
The less we make of trespassers' rights, the better. Deputy McDowell mentioned that it was only right and fitting that the owners of property and land should have a substantial responsibility. We cannot go around with a JCB digging bear traps all over our land, enticing people in and making sure they fall into the hole and break their necks — that is an extreme viewpoint. Of course, we as land users want to take care for our own safety. It was mentioned on Second Stage that it is important for people to be protected from themselves. However, I find it extremely difficult to stomach that if somebody stumbles onto my land uninvited, they can have recourse in law to compensation from me. However, I have to acknowledge what the Minister is doing — as we all must — and the need to have a fine balance in the legislation. This Bill is closer to my way of thinking than the previous legislation.
There was a great deal of sense in the Minister's response. However, it is very important that we set out in the interpretation section of this Bill the spirit of the law as well as its letter. The main point which I made was that everybody is agreed that we are besieged by trivial claims at the moment; I know that the Minister also agrees with that. Whether my amendments are in the right place or properly drafted, I think that people would agree with the spirit of what I am saying.
We have seen unscrupulous people make the most of the law as it now stands. A speaker mentioned people stubbling their toes; when I was a child if I tripped over something on the road my parents would ask me why I did not look where I was going. People make vexatious claims and I do not believe that anybody requires compensation, beyond a band aid for a scratch. My amendments refer to serious disease and impairment, because we have been subject to vexatious claims and large amounts of money have been gained by unscrupulous people and unscrupulous lawyers — ambulance chasers. I want to see that eradicated.
I support the amendment tabled by Deputy Woods. As most speakers said, up to now the cards have been stacked totally in favour of the trespasser to the detriment of the landowners or the occupier of a premises; that is something which we must get away from. We must take cognisance of what has been said by recreational users of land. I am sure that we have all received literature from these organisations, who are quite happy with what is being included in this piece of legislation. They enter onto land for the right reasons and they are prepared to take their own chances if they injure themselves.
A compensation culture has built up. A person from my county, whom I will call Jones, is well known in the area as "compo Jones" because he has had so many claims. This man slipped on supermarket floors, tripped over the kerb in a person's garden, fell off a ladder and fell into a pothole. He is a most unfortunate individual. He keeps getting away with bringing these claims.
The amendment tabled by Deputy Woods might go too far in some ways and might prevent some genuine cases being brought, but I suggest that they are few and far between. Such an amendment would do away with a huge amount of spurious claims and would be in the common good. People are almost afraid to do anything because of what could happen to them. We all know the problems with county roads. People are prepared to fill in the potholes themselves, but they are afraid to because if something happens they are liable for compensation. This amendment would help us to change that.
I am sure that it is difficult to keep up with the compo Joneses in many constituencies.
There is a certain amount of confusion, because it was decided by whoever decides these matters for the committee that amendments Nos. 1, 2 and 10 would be taken together, that we take two amendments regarding the interpretation section and one amendment from section 4. This has led to some confusion in the discussions which have taken place, because the amendment I put down only relates to section 4 and deals solely with trespassers. The Minister mentioned customers, but in this respect customers would be visitors not trespassers, so the argument made by the Minister would not refer to section 4, but to section 1. Again, one is back to procedure, as the problem of discussing these two amendments together is causing confusion.
I do not understand why it was not decided to discuss amendments Nos. 10 and 11 together, both in my name. Amendment No. 11 reads:
(2) 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.
I must restrict the Deputy from discussing amendment No. 11 in the context of amendments Nos. 1, 2 and 10.
I am discussing amendment No. 10.
The Deputy has quoted from amendment No. 11.
I have done this for a good reason, and if the Chair will be patient I will explain why.
It is not a question of being patient. The committee agreed to discuss amendments Nos. 1, 2 and 10 together on the basis that they were related.
In discussing them, we can discuss anything that is relevant to them. In discussing amendment No. 10, the issue of criminal intent is highly relevant. Section 1 states that "trespasser" means an entrant whose presence on the premises is unlawful, other than an entrant mentioned in paragraph (b) of the definition of "visitor". Alterations to this definition have been proposed. This definition is intended to simplify the definition of trespasser, which has gradually become blurred in recent years as the common law rules have been developed by judges. The definition has become more difficult to interpret in practice in the law. The Minister's proposal is a welcome simplification. It makes the law more direct and easier to understand and it means, in effect, and as stated in section 1, ".... an entrant whose presence on the premises is unlawful....".
I am aware the Minister has proposed further amendments to this, and this illustrates that there are many minor claims arising from injury brought against landowners by trespassers. Amendment No. 10 refers to the trespasser issue, and amendment No. 11 relates to this, because it deals with situations where people enter premises without permission with criminal intent. The issue, therefore, is one of trespass, and Deputy Keogh's amendment relates perhaps to it also, but it is in respect of section 1, which refers it to the entire Bill.
With regard to amendment No. 10 and section 4 does the Minister have any quantifiable information on the volume of cases which are of a minor and of a serious and long term nature?
I have no specific quantification, but I suspect that most cases would not fall within the category of major, permanent or serious injury. It must be understood that the basis of the Bill is to set the parameters of liability for occupiers of land. This is the categorisation which is taking place here and we are altering the level of responsibility. That alteration affects people who are injured in any way, for example, if people get a moderate injury they will have a claim only if the circumstances of their injury arise within the definitions and parameters set in the Bill. The same criterion applies to those who sustain a very serious injury. People who receive a very serious, permanent disablement arising from an accident will have no claim unless they satisfy the liability requirements in the Bill.
The issue of spurious claims is a separate matter. Spurious claims are untenable, whether they arise against an occupier, against a car driver or in any circumstances such as a factory accident. They are unacceptable and it will be noticed from perusing the papers in recent times that the courts are being increasingly cautious in examining claims to ensure that they are not spurious.
The obligation of plaintiffs is to prove their case to the reasonable satisfaction of the court. They must establish their bona fides, their case and the base of it to the satisfaction of the court. If they do not do so, they will fail in their claim. However, where a person has a claim, be it under the visitor category or the trespasser category, which requires a very high degree of liability or of fault on the part of the landowner the liability will arise. "Reckless disregard" is a major, serious business; it invokes a fault a good deal greater than that of normal negligence.
Under the Constitution, the State is obliged to defend and vindicate the person of each citizen. This obligation of the State to vindicate the person of each citizen is not confined to major and permanent injuries. Appreciable injuries which are not permanent and much suffering can be caused to people over a long period from accidents and this factor must be taken into account.
Deputy O'Dea raised the question of insurance costs and matters of that nature. The Bill is not concerned with insurance. It is concerned with apportioning responsibility for accidents as between visitors, occupiers, trespassers and recreational users. The question of insurance costs is being considered by the Department of Enterprise and Employment. It is undertaking a major exercise aimed at considering all aspects of the insurance industry and insurance costs in connection with accident claims. We must await the outcome of this, but if anything arises it would cover the broad spectrum of claims arising — not only the static type claim arising under the terms of the Bill, but claims arising in the driving of motor cars, accidents in factories and all other actions which arise under the law of tort.
The purpose of the Bill is to improve the situation for occupiers. It does this substantially and I am pleased to note that Deputy Connaughton accepts this. It represents a major improvement in the present legal position. However, in the cases where, in Deputy Keogh's view, an occupier has failed to exercise the common duty of care vis-�-vis a visitor, they are liable for a small or large injury. On the other hand, if an accident happens under circumstances which do not come within the common duty of care, regardless of how serious or permanent the injury may be, there will be no claim. The same applies to the trespasser- recreational user’s liability.
I do not want to labour the point and perhaps we can look at it again on Report Stage. I accept the Minister's point, but it is ridiculous that someone can claim for trivial accidents. For example, if someone scratches their arm, which can be treated with antiseptic cream and a sticking plaster, it will be blown out of proportion because there are no guidelines as to how serious the accident must be. I am not saying someone should be at death's door, but guidelines should be established. Is it possible to include that in the Bill? It is easier to make vexatious claims because trivial matters will be accepted for compensation. This is not confined to trespassers; it is a general principle.
Deputy Keogh tabled amendments which I support, although other Deputies have problems with their inclusion. I was interested in the Minister's response, particularly when he said that the Bill was tilting in favour of the rights of the occupier or the landowner. He pointed out that whatever claim was brought, the criteria which the Bill seeks to set down would have to be proven by the applicant, the injured party. He felt the balance was adequate in that context. In his response he mentioned "moderate" and "serious", but he did not mention "minor". Deputy Keogh and other Members referred to that in their contributions. We are concerned that minor claims are growing, not only in Dublin city but throughout the country. Is there any significance in that?
The Minister mentioned spurious claims, but that is not the only issue. In many cases, if a potential plaintiff consults a properly instructed solicitor, he will tell them that their chances of success are minuscule. The Minister and other Members of the committee know this. I will not discuss the reasons, but many solicitors will take on those cases, issue proceedings and go to trial. If an insurance company is involved, it will settle for £2,000 nuisance value rather than fighting the case in court, although the plaintiff's chances of success are negligible. Many of those cases deal with relatively trivial injuries, but the settlements are driving up insurance costs to the detriment of the economy.
I accept the Minister's point that a committee or someone in the Department of Enterprise and Employment will look at insurance. I was three years in Government and we also looked at it, as did many people in the past. The Minister will be aware — and he will forgive me if I am pessimistic in this regard — that powerful vested interests are opposed to any change in the present system relating to insurance claims. I hope I am proved wrong, but as regards changing the present system, the Minister will find that politicians' indecision on this matter will be final. I do not envisage any change in that regard. It is time to do something about this culture and to reduce the number and cost of those claims.
To a judge on the Bench, the signal we are sending through this legislation is that trespassers are walking on thin ice. It is important that people have the opportunity and the right to bring a claim to court. The signal we are sending today is a positive one because the trespasser will have a harder time than he or she had in the past. That is good law which I hope will work.
I am worried about the insurance claim culture about which we have spoken. We know of cases where one person fell into the same crack in the pavement five or six times and successfully made claims. Some local authorities have appointed people to check out various claims and I understand they are getting a good return for their money. There is an insurance claim culture in this country. If a trespasser is injured in a place where he or she should not be, under this law the court may not find in their favour, although it may have done so prior to this legislation.
I agree in the main with Deputy Connaughton, but someone must make the case for those from the city who occasionally go for a walk in the country. My wife is from Lisdoon-varna, beside the Burren in County Clare. A large portion of it is a public national park, while part of it is private. As someone from Dublin who visits the area once every couple of months, I do not know which part is public or private. There are country walks, laneways and green roads throughout the Burren, some of which go through both private and public land. If I am on private land at a particular time I do not believe the owner is entitled to set out deliberately or recklessly to injure me. It is right that he should not be responsible if I happen to stub my toe against a rock. However, if he deliberately sets out to cause me injury he should be responsible. That is the other side of the coin and we should be aware of it. A number of people from the cities enjoy wandering in the countryside and many farmers welcome them there. However, we should not give a blank cheque by saying that there should be no duty of care towards those people in any circumstances.
A few words about the compensation culture might be appropriate at this stage. Perhaps it would be as well to get that general discussion out of the way at the start, although I see the chairman's impatience with the progress of the debate. Some general comments regarding the first amendments might be appropriate. There is, unquestionably, a problem with fraudulent claims. However, we must be careful not to throw out the baby with the bathwater. It is similar to saying that we should abolish social welfare because it is abused. We should tackle fraudulent claims because they are dishonest, because people stitch up claims, because they are willing to perjure themselves in court, because they are willing to ask false witnesses to do the same and because they are willing to tell lies to doctors or engineers in order to secure false medical or engineering reports. These people deserve no sympathy and should be prosecuted for their actions.
Deputy Connaughton said earlier that local authorities recently have taken a different attitude towards costs. That is having a reasonable effect. If there are other measures in law which we can take we should take them. Frankly, however, I am not clear that this is a problem with statute law. The problem is that there are dishonest people who are willing to commit fraud. We must do everything possible to stamp that out.
Frivolous claims, where somebody is genuinely injured but only in a minor way, are another matter. If one is injured as a result of the negligence of somebody else one is entitled to be compensated since it was not the injured person's fault in the first place and the court has decided that it was somebody else's fault. The measure of compensation is a matter for the courts.
When Deputy Keogh proposed the amendments I thought she had a valid case. This is an era of trying to make money the easy way. Sometimes insurance companies settle claims in order to avoid going to court. It is happening throughout the country. As it is easier to pay a person £5,000 than to go to court, minor claims lead to much money being spent by insurance companies who in turn pass on the charges to innocent people.
There are arguments for and against the responsibilities of property owners and Deputy McDowell offered an example. I put it to him, however, that if I enter his house uninvited while he is carrying out repairs and I trip over something and damage my hand or neck, should I be free to sue him? This is not only relevant to farmers although it relates in particular to farmers because their land is abused sometimes by people who enter it. However, it concerns any property which trespassers enter. I cannot see the logic of a person who enters my private property — the few square metres I have — holding me responsible for the damage he has done to himself. If a property owner is in the middle of carring out work or repairs on his property and leaves the work for a while I cannot see why the law defends a person who enters that property when he has no right to do so.
Deputy Connaughton said the spirit of our argument is that people should not be easily compensated. I do not know if that is enough because we have judges who at times have such sympathy for people that one would wonder if the law really counts. One must have sympathy for people who are injured when they are legitimately on the property. However, recently we heard about a young man who received £20,000 compensations for falling through the glass roof of a building when he was attempting to burgle it. Is there not something strange about a society that allows this to happen? Should he not have been obliged to pay for repairs to the glass and for any damage he caused? Instead, he was able to sue. That is not good law. While the Minister has explained about serious injury and other matters, we should ensure that we discourage people from making exaggerated claims or claims that should not be made because people should not have been on the property in the first place.
Deputy McDowell seemed to imply — perhaps I misinterpreted him — that people on this side of the House who are articulating reservations about the Bill are in some way promoting the view that trespassers should have no rights and that occupiers could deliberately contrive situations to injure them. I certainly did not imply that. I do not recall anybody who has articulated reservations to the Minister putting forward that point of view. That is not what is intended in the amendments proposed by Deputy Woods and Deputy Keogh.
Deputy McDowell also discussed minor injuries and said that it was up to the courts to decide on these. Perhaps I am over-simplifying his case. However, my impression is that if the matter goes to court the judge will decide. That is fine except that occupiers-and I am referring to the urban occupier rather than the rural occupier — can be taken to court on a frequent basis for minor or frivolous claims. The fact that a judge might be extremely well versed in the law does not necessarily tilt the balance of fairness in favour of the occupier if he or she is going to be subject to the hassle, inconvenience, annoyance, intimidation and the cost of such cases. We should bear that in mind also.
People cannot be denied access to the courts. It is the right of citizens under the Constitution to have access to the courts.
Judges, by and large, do an excellent job and there are appeal procedures. Their job is to assess if there is a claim. It is only when they decide that there is a claim that the question of assessing damages arises. The question of the severity of an injury and the damages for that injury is a matter for the courts to decide. They are experienced in assessing witnesses, plaintives and what damages are appropriate. If a claim is so small that it is frivolous judges might, and in some cases do, throw it out if is insignificant under the de minimis rule. They will award no damages and dismiss it with costs as something that should not have been brought before them in the first place. On the other hand, if the claim was properly brought and was not spurious but the injury was slight, the appropriate damages would be slight also.
It is not the case that when a person goes on land — be it as visitor, a recreational user or as a trespasser — and sustains an injury on that land ipso factor they have a claim. They do not. More is required than going on the land and having an accident there to entitle a person to a claim. The person must prove to the court that the criteria set out in the Bill for the occupier have not been met and that there has been a serious failure on the part of the occupier to meet those requirements. The person must be believed by the judge who will look critically at and cross examine anybody in that position. That is what the administration of justice in a democratic system requires. The provisions in this Bill and the changes in the liability parameters which it sets are fair and try to strike a reasonable balance between people who go on land and people who are in control of that land.
On the insurance question I am not quite as pessimistic as Deputy O'Dea that nothing will come of it. I am aware he was in Government for three years and nothing happened but my information now is that consultants engaged by the Department of Enterprise and Employment are to report on this subject within six months. That is not to say I can guarantee what the report may say or what its outcome may be but I have been given that information.
Insurance companies examine claims against them. They are in the business of making profits. I have never heard of a case where a company paid up to £5,000 for a trival, insignificant claim. They examine claims carefully and have investigations and procedures for doing so.
Nothing in this Bill facilitates spurious claims, quite the reverse. No spurious claim, be it for a trivial or spurious injury, should stand. The only claim which can stand is where a person is genuinely wronged by a default on the part of an occupier under the Bill. If that is a genuine claim it must be met in any civilised system and the courts are appointed under the Constitution to deal with that. They do so impartially and fairly based on the evidence adduced before them.
I asked the Minister what proportion of claims is of a minor or non-serious nature but that information is apparently not available. It must be obtainable somewhere in the system and it is relevant to the discussion because it will quantify how serious the claims are in practice. I am informed by practitioners in the field that sprains, minor breaks, abrasions and non-serious whiplash injuries cover between 80 and 90 per cent of actions by trespassers. It is necessary to know what one is talking about in quantitative terms, which is why it is disappointing the Minister has none of this information.
My amendment No. 10 relates to trespassers. Because it is in the definition section Members have referred to situations other than trespassing; for instance Deputy McDowell mentioned himself and his wife touring in the countryside and having a look around. We all do that from time to time; the classic example is picking blackberries.
That is theft as well as trespassing.
The Deputy and his wife would be recreational users under the definition. Such a person may enter with or without the occupier's permission.
This returns us to distinguishing cases of trespassing from entering with criminal intent, as in my amendment No. 11. In these situations, whether the occupier is a landowner, a farmer or a householder with a small back garden, as Deputy Browne mentioned, the fact the occupier is liable for injury to a trespasser——
He would not be liable, although he might if he was digging a hole.
It should be made clear the occupier is not liable. The purpose of the Bill is to replace the common law rules — that underlies everything we are talking about. The Minister has given a dissertation on the State's duty to vindicate the rights of the citizen; if he really wants to do so he should leave the common law rules alone, so the matter would be dealt with in accordance with the Constitution and the interpretation of the courts.
We are trying to define and simplify and to remove occasions for these vexatious claims by distinguishing in the definition section between recreational users, trespassers and visitors. If the Minister feels the State must vindicate the citizen, whether that is citizens who trespass or enter with criminal intent, perhaps it should. Here we are discussing the occupier, whether the householder, farmer or landowner. The State can vindicate someone's rights in a variety of ways, if it feels it necessary.
In practice 80 to 90 per cent of these claims are of a minor and less serious nature. This is the issue people are concerned about and has led to comments from Members. People do not want to see the system abused and it is not sufficient for us to allow the Department of Enterprise and Employment to tackle insurance matters. This Bill changes the common law rules and in doing so we should try to tackle situations we meet in practice, which is why I have put down the amendment.
We agreed at the outset we would adjourn at 4.15 p.m.
I think we have completed discussion on those three amendments.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
It is proposed we adjourn until 5.15 p.m. I have a meeting at that time so I may be absent for 20 minutes. Will the committee appoint a temporary chairman on resumption?
I propose Deputy Browne.
Is that agreed? Agreed.
Sitting suspended at 4.15 p.m. and resumed at 5.15 p.m.
Carlow-Kilkenny): We will deal with amendment No. 3 in the name of Deputy Woods.
I move amendment No. 3:
In page 2, subsection (1), lines 24 to 29, to delete all the words from and including "and, where" down to and including "trespasser".
The provision we are proposing to delete is intended to meet the situation where there is more than one occupier. It is intended in the Bill that where there is more than one occupier, the extent of the duty of each depends on the degree of control that each one of them has and provides that one may owe a different level of care to a person on the premises from another person on the same premises. It is to deal with a situation where a number of people are on the same premises. In short, in relation to one occupier, a person might be a trespasser, but not in relation to the other occupier.
Where a number of people were occupying a premises, which is not an uncommon situation, a confusion could be caused where the duty of one part occupier to a person might be only that owed to a trespasser, for whatever reason, while to another it might be that owed to a visitor. This might well arise in the circumstances of premises occupied by a number of different traders, for example, each one having liability for his particular take. It seems an unnecessarily confused extension of a definition that is in itself more than adequate if it went only as far as the word "thereon" in line 24.
If this amendment is accepted, the position will be very much clearer, both for the occupier and for the people who come onto the land. It would state, then, that an:
"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 are proposing to delete the following balance of that section on page 2: "and, where there is more than one occupier of the same premises, the extent and 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". We feel it is sufficient to go down as far as the word "thereon". It is quite clear then and there is no need for the balance of that section which only serves to confuse the situation. That is essentially the point.
The definition of "occupier" in the text follows the recommendation of the Law Reform Commission which specifically envisaged the possibility of there being more than one occupier for the purposes of this legislation. It is based on the idea that any liability should rest with the individual who exercises control over the state of the premises. The occupier may be the owner, a tenant or licensee, so long as he or she has the requisite degree of control. In its consultation paper, the Law Reform Commission pointed out that any person who has the right to possession of the premises together with the right to invite or permit another to enter them, may have sufficient control to warrant being characterised as occupier. The definition also refers to the fact that there may be more than one occupier for the purpose of the same premises. This would often arise where, under a tenancy agreement, possession and occupation of the dwelling is vested in the tenant but the landlord may retain control of, say, the common stairway. In such a case it would be the landlord who would be liable if the tenant or a guest was injured because of the dangerous condition of the stairway. Or the landlord may be under an obligation to keep the whole premises in repair and could be responsible in those cases also. What we have in the definition is a reasonable yardstick by which to attribute liability that may arise under the Bill in cases where more than one person has the necessary control over the state of premises and of people entering on it.
As it stands, how is this going in practice? For example, take a common area in a block of flats, and somebody comes in and is injured in the common area. Let us assume that the common area is not retained within the control of the landlord. Do they look for 50 per cent of the damages from the person who has the flat nearest the common area, 30 per cent from the person who is next nearest and 20 per cent from somebody downstairs? I just do not understand how it is going to work in practice.
The crucial factor would be the person or people in whose control it is. They would be the occupiers. If more than one person had control of it, the court would then decide who was appropriate to pay damages for any faulty condition for which an occupier or occupiers were liable.
But if it is joint control, assuming that the landlord does not retain control?
If it was under the joint control of a number of tenants then, all other things being equal, they would be equally liable. If there were three of them they would be jointly liable. But you could have a situation where one would have more liability perhaps. There could be different types of situation. The criterion would be the degree of control.
It seems very unwieldy.
It is the only way you could do it. I think it is quite fair and I do not see that it is unwieldy really. The people who will carry the responsibility will be those who have the power to do something about it. In other words, if a fault is to develop there for which an occupier is liable, who carries the responsibility for that position? — the people who are in control. Who else could it possibly be?
But the court would then decide who was in control of the different parts.
Of course. That would be a matter of evidence.
The discussion that has taken place between Deputy O'Dea and the Minister illustrates my point. It is not necessary to have the second half and it can be confusing because, as the Minister has clearly said in the first part of this definition, "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....
The Minister said it is the person exercising control. One way or another after that you have to decide whether people were jointly in control or whether they could separate the control from one another. That seems to be the issue that the court would decide, so does the second part really add anything to it? Although initially it was probably intended to spell it out in more detail, it is causing more confusion rather than simplifying or clarifying the situation.
It is certainly not causing more confusion, and far from not being necessary, I would regard it as essential. The parliamentary draftsman also regards it as quite essential because it is the second part that refers to the degree of control each of them has over the state of the premises. It also confirms the fact that there can be more than one occupier of the premises and that, when it comes to assessing liability, it is the degree of control that each occupier has that is the guideline for the court in assessing who pays what. That is also determined by whether the entrant is a visitor or a trespasser. The provision is quite essential.
Can the Minister tease it out a bit further? Is it possible that a different duty of care could exist as between the entrant and some of the occupiers? In the example I gave earlier, one of the flat dwellers might have invited the entrant in, in which case they would owe duty of care appropriate to a visitor. What duty of care would be owed in respect of the others?
That would obviously depend on their relationship. I would think that if there was a common area in a block of flats, it is an agreed thing that any tenant may invite a person in and that person would be a visitor vis-�-viswhoever was the occupier or occupiers of that area because that would be part of the arrangement on which such a block of flats would operate. I think it is essential.
If the Minister would consider that issue on Report Stage, I would withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 3, subsection (1), lines 1 and 2, to delete "historical, national or scientific" and substitute "historical, architectural, traditional, artistic, archaeological or scientific".
This is purely a drafting amendment. The wording now being proposed is more in keeping with the definition of a national monument from the National Monuments Act, 1930.
Is the actual wording exactly the same as that?
My note is that the words being proposed are more in keeping with the definition of a national monument contained in the National Monuments Act, 1930.
I was just wondering what "traditional" meant.
Something that is handed on, I understand, is the usual meaning.
Amendment agreed to.
Amendments Nos. 5, 6, 7 and 8 are related and may by discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 5:
In page 3, subsection (1), line 4, after "permission" to insert "or at the occupier's implied invitation".
These amendments propose drafting changes in the definition of "recreational user", "trespasser" and "visitor" to meet views expressed by Deputies and the farming organisations that the existing definitions are not sufficiently precise and that the extent of the duty owed by an occupier to a particualr entrant would not be clearly ascertainable. Under the Bill, visitors are owed, what section 3 calls, the common duty of care, that is, the duty to take reasonable care to ensure that a visitor does not suffer injury or damage by reason of any danger existing on premises. The duty owed to recreational users or trespassers on the other hand is far lower. It is not to injure them intentionally or to behave with reckless disregard towards them.
The defination of "visitor" is intended to cover three of the categories of entrant that are recognised under the present law. These are: persons who enter in pursuance of a contract between the occupier and themselves; invitees, such as customers in a shop, who enter with the owner's consent in the circumstances but confer a material benefit on the occupier; and licensees, for example, a visitor to a public park who is permitted by the occupier to be there but whose visit does not materially benefit the occupier. The definition also includes entrants as of right such as inspectors acting under statutory authority.
The existing definition of visitor covers invitees and licensees by referring to entrants whose presence on premises is lawful. The definition of "trespasser" refers to entrants to premises whose presence is unlawful. The use of those terms has been criticised as importing an unnecessary degree of uncertainty. The revised definition of "visitor" which I am now proposing will remove as far as possible any uncertainty about the dividing line between a visitor and either a recreational user or a trespasser. To qualify for visitor status, the entrant must not be a recreational user and must have been invited to the premises by the occupier or permitted by him or her to be there. That clearly covers the present categories of invitees and licensees. Contractual entrants and entrants as of right are included as before. The definition also dovetails precisely with the definition of recreational user by including, as visitors, those entrants who use premises for recreational purposes but are specifically excluded from that definition. These are: a member of the occupier's family living on the premises; an entrant who is there at the express invitation of the occupier or such a member; or a person who enters for social reasons connected with the occupier or a member of the occupier's family.
As part of the tightening up, the "recreational user" definition has also been amended. As it stands, an entrant who has an occupier's permission to engage in recreational activity is a recreational user unless he is there at the invitation of the occupier or a family member or is to be permitted to be there for social reasons connected with the family in which case the entrant is treated as a visitor. Because there may sometimes be difficulty in deciding whether an entrant is invited or merely permitted, the "recreational user" definition is being amended to provide for an entrant who enters at the implied invitation of the occupier in addition to a person who enters with permission.
It is also being provided that for an entrant to be excluded from the definition, and so enjoy the higher status of visitor, the invitation to the entrant from the occupier or family member must be an express invitation. This is in response to representations made concerning the confusion which might result if a recreational user were to claim that he or she was present on premises by virtue of an implied invitation and therefore would be entitled to visitor status. Finally, the definition of visitor now makes it clear that an entrant will enjoy visitor status only as long as the entrant is present for the purpose for which he or she enjoyed that status in the first place. If a customer in a shop wanders into the storage area after making a purchase and gets injured there, the occupier will owe only the duty appropriate to entrants who are trespassers, that is, not to behave towards them with reckless disregard.
I appreciate that these provisions are highly technical but they are necessarily so if ambiguities are to be avoided. In my view the amendments succeed in doing this but, of course, the circumstances in which people enter on premises and the relationship between them and occupiers can vary so much that it is just not possible to provide for them all in legislation. The amendments will however achieve, in a far more precise fashion, the aim of this Bill which is to reduce substantially the liabilty of occupiers under the present law, as it has been interpreted, to recreational users and trespassers.
The Minister is proposing a number of amendments, one of which deals with an implied invitation on the part of an occupier. A recreational user is an entrant who, with or without the occupier's permission, or at the occupier's implied invitation, is present on premises without a charge but does not include a member of the occupier's family who is ordinarily resident on the premises or an entrant present at the express invitation of the occupier or a family member. On the question of an express invitation, what would be the position of people who asked a farmer if they could pick blackberries or mushrooms or visit an historical site if his reply is: "Yes, you are welcome. Go ahead." How would they be classed then?
They would be recreational users.
Would it not convert them into visitors?
No, it would not. They would be recreational users.
If they went on in the first instance for that purpose, I presume they would be recreational users.
Yes, that is correct.
I am just trying to tease out the situation. Let us take a situation where the farmer is there and happens to see them and, being nice and kind, says: "You are welcome. Pick the blackberries". Does that act of friendliness or kindness change them into visitors or do they remain recreational users? One also has the question of decent people who come along and do not really want to enter on the premises but the farmer's 15 or 16 years old son or daughter might say it is okay to pick blackberries. The Minister mentioned members of the family and entrants present at the express invitation of the occupier or a member of the occupier's family. What is the situation in the circumstances I have outlined? Is that a case where their status will be changed? Will they become visitors by being, in that sense, invited on?
The only way they would becme a visitor is if they are present at the express invitation of the occupier. It requires the express invitation; permission is not sufficient and implied permission is not sufficient. An implied invitation is not sufficient. It has to be a very special position before they achieve visitor status in this category. We were at pains to confine this as much as possible in response to comments made on Second Stage and representations we received. Qualifying for visitor status requires an express invitation and nothing short of an express invitation will do. Anyone who falls short of that will, depending on the circumstances, be a recreational user or a trespasser.
What is an express invitation? Is being told: "Come ahead; you are welcome" expressing an invitation?
Expressing an invitation would be: "Come around to my house on Sunday afternoon for tea, Dr. Woods". That would be an express invitation.
I understand that one all right.
Do you like being invited for tea?
What happens if a person is asked to come and pick blackberries?
If I own land and say: "Come around to my land on Sunday and you can pick blackberries", that is an express invitation. On the other hand, if I see you casually walking down the road and you ask if you can pick blackberries and I say that you may, you are a recreational user.
If you do not say: "You may" but say "You are very welcome. Come ahead and pick the blackberries", is that not expressing an invitation? That is my concern.
The distinction is between a permission and an express invitation.
Would a farmer or land-owner need to be careful about what he or she would say in those circumstances? That is the issue that would arise.
I do not deny there can be grey areas here. The Bill as originally drafted would have meant that an invitation, express or implied, would have been sufficient to promote the entrant to the position of visitor. We are restricting that. We are saying that an implied invitation will not do to qualify for visitor status. It must be an express invitation.
I will come back to this issue.
I appreciate the Minister is trying to be more precise with these amendments as vagueness creates difficulties. I understand Deputy Woods's point to some extent. It is like the difference between saying: "You must come to dinner some time" and giving a precise date.
Looking at amendment No. 8, would it be logical, when defining "visitor", to have it read: "(a) an entrant, other than a recreational user, who is present on premises at the express invitation, or with the permission, of the occupier," and so on. Would not the Minister's argument imply that that should be more precise also? Does the Minister see the point?
We are including there: "an entrant specified in paragraph (a), (b) or (c) of the defination of ‘recreational user'", and the express invitation category is now put into paragraph (b) of the "recreational user" definition, so it is well and precisely covered.
I see what the Minister is getting at. I do not always look for "belt and braces" in these matters. The Minister said the highest duty is due to the visitor, so the Minister is defining it there.
We are restricting and defining very clearly who is to be a "visitor" and it requires an express invitation.
I wonder if, in that subsection because the Minister wishes to be precise it would be useful to include the word "express"?
It is well covered.
Amendment No. 8 states that a visitor is "an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier". If the farmer meets somebody outside his gate who asks to take a short cut across the farmer's land and the farmer consents, would that person fall into the category of "visitor"?
No, he would not because he is a person going with the permission, not at the invitation, of the occupier.
According to the definition in amendment No. 8:
"‘visitor means'—
(a) an entrant, other than a recreational user, who is present on premises at the invitation, or with the permission, of the occupier,——"
"Visitor" means an entrant other than a recreational user. That person is a recreational user.
No, he is not. If somebody tells the farmer that he has to take a short cut across his land, asks for permission and the farmer gives it——
He comes within the definition of "recreational user".
Why? He might be going home. He might not be doing anything recreational, as defined in the Bill.
While the blackberry picker might be doing something recreational, this person might be taking a short cut on his way to work or whatever.
Using it as a right of way, you mean? I will have a look at that point.
Will the Minister look at that whole issue? There is some fear that granting permission changes the entrant's status. What exactly is an express invitation? What is a permission and how far does it go? Perhaps the Minister might look at that for Report Stage, tease the issue out and give us his final view on it then. We all appreciate the difficulties and the complexity of this area. If a farmer virtually invites a person on to his land with the words "you are welcome" is that person still a recreational user? There is also Deputy O'Dea's point as to the purpose for entering.
I have examined it very carefully and all categories are covered. On reflection, taking Deputy O'Dea's point and looking at the definitions now, the person invited to use a short cut would be a visitor and would be intended to be a visitor and not a recreational user.
Usually, in a situation like that, somebody is not expressly invited to use a short cut: he looks for permission and the farmer gives it.
In effect, would he then be a visitor?
A person taking a short cut with a permission would be a visitor, if there is no recreational use element. Without permission he would be a trespasser.
If he does something while going across by which he could be defined as a recreational user, there is a totally different duty of care.
If his purpose changed from using a short cut to recreational use, that would change his status. If he is taking a short cut as the Deputy says, he is either a visitor or a trespasser, depending on whether he has permission?
Amendment agreed to.
I move amendment No. 6:
In page 3, subsection (1), line 12, before "invitation" to insert "express".
Amendment agreed to.
I move amendment No. 7:
In page 3, subsection (1), lines 18 to 20, to delete "whose presence on premises is unlawful, other than an entrant mentioned in paragraph (b) of the definition of ‘visitor'" and substitute "other than a recreational user or visitor".
Amendment agreed to.
I move amendment No. 8:
In page 3, subsection (1), to delete lines 21 to 29 and substitute the following:
"‘visitor' means—
(a) 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',
(b) an entrant so present by virtue of an express or implied term in a contract, and
(c) an entrant as of right,
while he or she is so present, as the case may be, for the purpose for which he or she is invited or permitted to be there, for the purpose of the performance of the contract or for the purpose of the exercise of the right, and includes any such entrant whose presence on premises has become unlawful after entry thereon and who is taking reasonable steps to leave.".
Amendment agreed to.
Section 1, as amended, agreed to.