Amendments Nos. 9, 19 and the proposal to delete section 9 form a composite proposal and amendment No. 18 is consequential on amendment No. 19. All may be discussed together. Is that agreed? Agreed.
SECTION 3.
I move amendment No. 9:
In page 4, lines 5 to 8, to delete subsection (2) and substitute the following:
"(2) In this section ‘the common duty of care' means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.".
During Second Stage debate, many Deputies expressed the view that not enough emphasis was placed on the responsibility of entrants, with regard to their own safety, while on the premises of others. Section 9 of the Bill was intended to cover this point but on reflection I have taken the view that a clearer statement of this fundamental principle would be appropriate. I therefore propose to amend sections 3 and 4 of the Bill to give greater emphasis to the legitimate expectation of occupiers that entrants on to their premises will take reasonable care for their own safety. There is no longer any need for section 9 and I propose that it be deleted.
I should stress, however, that the contributory negligence provisions contained in the Civil Liability Act, 1961 will be applicable where an entrant suffers injury or damage which is partly the fault of the entrant and partly that of the occupier. I should also point out that, in relation to section 4, the conduct of a recreational user or trespasser while on the premises will be an additional factor when the court is deciding whether or not an occupier has acted with reckless disregard. If the conduct is criminal in nature the courts will be able to draw the appropriate conclusions and I am confident that they will do so. However, in view of the amendments specifically relating to criminal conduct which have been proposed by Deputies Keogh and Woods we might postpone discussion on this aspect of the amendment for the moment.
Amendment No. 9 is substituting a new subsection. Could the Minister include a provision that the occupier should be entitled to have regard to the level of supervision which might be reasonably expected of the person responsible for the visitor? If, for instance, a group enter a premises under the supervision of a person, to what extent should the occupier be entitled to rely on that supervision?
On Second Stage I referred to the fact that the duty on the occupier to take reasonable care was vague and ill-defined. I would accept that the Minister is attempting to deal with that point in this amendment.
I believe this has been dealt with reasonably well. My view is that the duty would be placed on an occupier in cases where he had visitors on his premises. It reminds us that there are now many farming families who have to make extra money from on-farm activities such as tourism. A number of farmers open their farms to the public — a good example is seen on the television programme "Glenroe"— for busloads of schoolchildren and other interested groups to come and visit. It would be inappropriate if the law put too much emphasis on the duty of the owner of the land, even though he invited those people in or they applied for admission. It is important that the level of care in those circumstances should be reasonable. A reasonable balance would have to be assured even though the people who came in are classified as visitors. This is an important point for many farming families who engage in different types of farming activity. It is all related to the area of tourism and something people involved in that area would be quite worried about. Most of the people who contacted me believe that the Minister's legislation is much better than that which we had before. Would he give some indication of what might be expected of the landowner or occupier of land in cases where, for instance, a busload of children arrive at a farm? Obviously they will be reasonably well controlled by a teacher or member of the parents' committee but where does their responsibility start or finish? Where does the responsibility of the farmer start and finish?
As I see it, the difference between the new duty of care and the duty of care in the Bill as initiated relates to the part which states "having regard to the care which a visitor may be reasonably expected to take for his or her own safety". I welcome that. We must have regard to the fact that people have an obligation to look after themselves and not allow themselves to be injured if they can prevent it. I understand Deputy Woods's point about supervision. In section 4 there is provision for a situation where a person, a minor or a person with a mental handicap, would be accompanied by someone of superior intellect or whatever. The degree of supervision is referred to as one of the conditions to be taken into account but my understanding is that the Minister is deleting that section. Where will this be covered in the Bill because it is clearly desirable that if somebody is accompanied, the responsibility of the person accompanying the plaintiff if the plaintiff is a minor or a person with a mental handicap must also come into the reckoning?
In reply to Deputy Woods and Deputy Connaughton in particular, it is difficult to set out specific examples because the range of activities here is so wide. The circumstances of what might happen and how they would be organised is so wide that it covers a vast spectrum of possible situations. That is why the definition has to be in general terms but there is one key word in the definition, the word "reasonable", and the notion of reasonableness is what is to be applied by the courts in a down to earth, practical way. There are two reasonable positions to be taken into account. First, the reasonable responsibility of the occupier and, second, the reasonable requirements of entrants to take necessary safety precautions that could reasonably be expected of them in all the circumstances.
As Deputy O'Dea says, we are dropping section 4 (3) but the question of supervision could, in some circumstances if it was appropriate, be imported into the reasonableness that would be required by an entrant. It is all encompassing. It "..... means a duty to take care as is reasonable in all the circumstances ....." so all the surrounding circumstances would be relevant to a court in determining whether "the common duty of care" had been complied with.
In welcoming the amendment, I suggest the Minister might consider including a provision that the occupier should be entitled to have regard to the level of supervision he is reasonably entitled to expect of persons in whose care the visitor is. For instance, in amendment No. 19, which we are discussing in conjunction with these, the Minister is making specific provision under,
(g) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises;.....
That is what one can reasonably expect of a person in relation to himself. The question that remains outstanding is what can one reasonably be expected to do in relation to supervision where there is a group, for instance a scout group. Is there a reasonable expectation of care by the supervisor in that case? A group on a duty would usually have a leader and, presumably, the farmer or landowner can reasonably expect a group of scouts who are recreational users to have somebody of authority in charge in situations where they break up into smaller groups.
In effect, the Minister has made provision for a person being expected to take responsibility for his or her own safety while on the premises but the question, also addressed in amendment No. 21 of . . . " 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" . . . or entering the danger or whatever it was is addressed here and I am quite happy with the amendment. That is possibly the one outstanding issue in relation to the section.
I support Deputy Woods's view. What the Minister said about what "reasonable" implies would equally apply to what he is writing in there. One could say it is reasonable that a visitor should be expected to take reasonable precautions for his or her own safety. Why was it necessary to write it in if it is not necessary to include the somebody accompanying the person coming on to premises?
The criterion of "the common duty of care" is to take such care as is reasonable in all the circumstances. It follows, inevitably, that if by arrangement and knowledge young children come accompanied by a supervisor, the occupier knows that and it is a factor in the equation. Consequently, in applying the test of whether what the occupier does or does not do on this occasion was reasonable whether these children came supervised or unsupervised would be taken into account. Clearly, that is and must be a factor in determining the reasonableness of what the occupier did.
One must consider for example, the response of the occupier to a group of young children coming by invitation on to his land unsupervised and to a similar group of children coming supervised. That one group is supervised may mean what he did was reasonable in those circumstances, whereas it might be unreasonable for an unsupervised group. That is a factor in the reasonableness of the response of the occupier. Quite clearly, the supervision aspect is covered within the terms of the definition.
It is all very well to say he will know whether the party of schoolchildren is to be accompanied. He will also know about a visitor, somebody whom he invites on to his own land, so what applies to one, applies to the other. Even if what the Minister says is correct, it would do no violence at all to the legislation to write it in specifically so as to put it beyond any doubt.
I do not mind looking at that but I can see a difficulty because that would be only one factor in determining what was reasonable and there could be many other factors. There are implications in nominating one criterion as a factor. One could, conjure up quite a number of other situations worthy of a specific mention. It is covered by the definition as it stands, taking the word "reasonable" into account. However, having said that, and the point having been made forcefully by Deputies Woods and O'Dea, I will look at it.
If a farmer or occupier found out a group was unsupervised it would be unlikely to be allowed access under those conditions and, if it was, it would be in a different category — more trespassers than visitors. Nobody in their right mind would allow 50 unsupervised children to run loose around a busy farm. I would be surprised if the law did not deal with the question of reasonable approach, etc., as the Minister has outlined, based entirely on the understanding or contract the farmer would have with the visitors.
It would have to be made clear to any occupier of land that they should go to extreme lengths to find out who is in charge of the group and the nature of their responsibility for the group. I do not see a great problem with it. The occupier would be most unlikely to allow a group on their land unless they were absolutely certain it was supervised. How could one supervise 50 children running wild around a farmyard?
Amendment agreed to.
Section 3, as amended, agreed to.