Amendment No. 40 is an alternative to amendment No. 11 and they can be taken together by agreement. Is that agreed? Agreed.
SECTION 4.
Amendment No. 10 not moved.
I move amendment No. 11:
In page 4, between lines 17 and 18, to insert the following subsection:
"(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.".
The purpose of this amendment is self-evident. It is to ensure there will be no possibility that a person who comes on to a premises with any criminal intent can sue in respect of injuries sustained by them while on the premises. As matters stand the possibility remains open that an occupier of premises, including a householder, may be liable for injury to a person acting in the course of criminal activity. While it may be unlikely that such a situation will arise the possibility is intolerable and unacceptable.
While we are making these amendments to this Bill and specifying the elements about which we are most concerned, we should take the opportunity to put this issue beyond doubt and ensure that no person with criminal intent can sue in respect of injuries sustained. Deputies earlier mentioned the case of someone sawing through a roof and falling while in the course of breaking and entering with criminal intent and suing for £20,000. This is a serious issue that can apply to the ordinary householder as well as to the farmer or landowner. It is a matter on which we should take definite action.
The intent of my amendment No. 40 is the same: The amendment states:
In page 6, between lines 38 and 39, to insert the following subsection:
"(2) Nothing in this Act 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.".
We should make it clear that occupiers have no liability to people who trespass on their property with the intention of committing any criminal act. This should be included in the legislation because nobody wants any criminal to have recourse to the law in circumstances where they are embarking upon a criminal act. It is a reasonable amendment.
This is a bone of contention for many people. There have been circumstances when property owners and householders have taken steps to protect their property in cases where there was armed robbery, for example, and the courts have found that the force used by the occupier was too great in the circumstances. As a result the perpetrator was found not to be as guilty as they might otherwise be.
I find it hard to understand that. I hope it never happens to me but if somebody broke into my small abode in the early hours of the morning I would not mind using whatever force I could lay my hands on to make sure they did not injure my property or my person. Most people would agree with that. There was a celebrated case in the UK recently when somebody managed to bring a case for damages against a householder in such circumstances. The law would be going soft if I was found to be wrong in defending myself if somebody broke into my house. Any action I would take to defend myself would be justified. Given these circumstances, most people would protect themselves. Sometimes one may be lucky enough not to be in such a position.
I welcome Deputy Connaughton's remarks and we look forward to him voting with us on this issue. I strongly support these amendments. It is unthinkable that a person who comes on to another person's property with the intent of robbery, violence, rape or whatever, attempts to commit the crime and sometimes does so, can take an action for damages against the occupier under occupier's liability legislation. It is an abomination and a slur on the law. The amendment as drafted refers to a person with criminal intent, and I suspect that the Minister may raise some technical difficulties with this, but it also goes on to refer to people who have committed crime or attempted to commit crime on another person's property, and, presumably, entered the property for that reason.
If we enact this legislation in its present form, a person in the kind of situation I have outlined can have a cause of action. This will bring the law into disrepute. It is often said that the law is an ass, but this will make a laughing hyena out of the law unless we stitch in this amendment and send a signal that we are serious law makers and that we are not about the business of giving criminals and those who enter property with intent to murder, rob, rape or plunder a cause of action against the innocent occupier who would be the victim of the crime they intend to commit, or commit.
This is an abomination and is totally unacceptable. We now have the opportunity to send out a signal about how we feel about these people by stitching this amendment into the legislation. Whatever about the question of criminal intent, we should send a message to the public that anything we can do to discourage those who commit crime or attempt to commit crime — as the Minister is aware, attempt to commit a crime is itself a crime — including denying them the right to bring an action for damages for personal injuries will be done. The only way to achieve this is for the Minister to accept the amendment.
I support the amendment in the name of Deputy Woods. In addition I have no great difficulty with the amendment in the name of Deputy Keogh. Deputy O'Dea said that it would be an abomination if we did not include this measure in the legislation. As legislators, we would be criminally negligent if we did not seek to give in legislation dealing with occupier's liability the clearest possible signal to criminals and prospective criminals that any action on their part to commit a crime on private property — whether it is in my front or back garden or house, the Deputy's farm, a commercial property or any property which the criminal does not have access to as of right — will disallow any cause to invoke any action for damages as a result of injuries sustained.
I endorse the sentiments expressed by Deputy Connaughton. If any criminal sought to encroach upon my premises and I was fortunate or misfortunate enough to be on the premises, depending on the size or the ability of the criminal involved, I would also seek to defend my property and I would strongly resent any right in legislation by any criminal to seek damages in consequence of what would happen. I can conceive of no situation, not even in the case of negligence by the occupier of a premises, whether it be a farmer, a private householder or the owner of a commercial premises, where the right of a criminal, because he or she sustained injury in the course of committing a criminal act, should take precedence over the carelessness of the occupier. We must, therefore, consider seriously the inclusion of a provision of this kind in the Bill.
I sympathise with the premises which informs the amendments in the names of Deputies Woods and Keogh. It was because I shared their concern on this point that I proposed amendment No. 19, which allows for the conduct of a recreational user or trespasser while on premises to be taken into account by a court when assessing whether or not an occupier has acted with reckless disregard. In circumstances where the conduct was criminal in nature, this would allow a court to come to the appropriate decision and it can be safely assumed that in those circumstances, the courts will come to the appropriate decision.
As some of the Deputies on the Opposition benches correctly anticipated, there are problems in defining what might constitute a criminal offence for the purpose of this legislation. That is why I am reluctant to accept the texts which the Deputies are proposing. In addition, section 8 allows an occupier to avail of the standard self defence provisions if a person or property is being threatened. The section states:
Nothing in this Act shall be construed as affecting any enactment or any rule of law relating to —
(a) self-defence, the defence of others or the defence of property,. . .
However, I would not like to write in a provision which, by implication, would allow an occupier to intentionally injure a trespasser where a criminal act might be comparatively trivial in nature. It is sufficient to make the provision which I have made, and which ensures that the conduct of the trespasser will always be open to scrutiny if he or she seeks to bring an action for damages against an occupier. There are difficulties with provisions of a sweeping nature which claim to remove the right of action from individual litigants, no matter how underserving we may feel those litigants to be.
In his reply, the Minister expressed considerable sympathy with the amendments and the points made by Members but he would appear to have a difficulty in finding a solution and would prefer to maintain the status quo,believing it to be adequate. There is a view on the law at present that a person entering a premises with criminal intent, not necessarily in respect of the premises, could have grounds for action were he to be injured. This could arise even where he was an invitee, with the permission and in the interests of the occupier, but unknown to the occupier was committing a criminal offence of some kind.
This kind of situation is not acceptable and everybody recognises this. The Minister advises that he has difficulty with the wording of the two amendments proposed. I ask the Minister to consider a satisfactory wording which will address this issue for Report Stage. We will also look at the wording of the amendment for Report Stage and will withdraw it now on that basis.
Amendment No. 40 in my name was taken with this amendment, and I wish to comment on the Minister's response. I agree with the remarks of Deputy Woods and I accept that the Minister believes that section 8 covers the principle we are attempting to write into the Bill. Everybody is of the view that it is abhorrent that a person who enters a premises with criminal intent should be able to sue an occupier for damages. Such a person does not deserve and should not receive any legal protection. The law should presume that trespassers have accepted all the risks they may encounter. I am willing to withdraw the amendment but perhaps the Minister might consider it further.
Amendment, by leave, withdrawn.
It is proposed that amendments Nos. 12 to 16, inclusive, be discussed together. Is that agreed? Agreed.
I move amendment No. 12:
In page 4, subsection (2) (a), lines 21 and 22, to delete "or had reasonable grounds for believing".
These amendments are related. Section 4 provides that the duty to recreational users is not to injure them intentionally or to act with reckless disregard for their safety. However, there is a host of restrictions and modifications attached. That is why I have proposed these amendments.
The provision regarding whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises really invalidates what the Minister is trying to achieve in the first part of section 4. We must decide whether the occupier acted with reckless disregard. My interpretation of the phrase "whether the occupier knew or had reasonable grounds for believing that a danger existed" on his or her land is that the occupier need not have actual knowledge of the danger and that an occupier may also be found liable if the court forms a view that he ought to have known of the danger. These amendments seek the deletion of such phrases. I made these points on Second Stage and I await the Minister's response to them.
The Deputy's amendments relate to paragraphs (a) to (c) of section 4 (2). These paragraphs set out some of the considerations that are to be applied in determining whether an occupier acted with reckless disregard towards a recreational user or trespasser. Together with the remaining paragraphs of the subsection they are aimed at clarifying the scope of the occupier's duty towards such entrants and providing a firm statutory basis for it.
The three paragraphs in question deal with the occupier's state of knowledge of the existence of a danger on the premises and of the presence or likely presence of a person or his or her property in the vicinity of the danger. They are carefully structured. They are in the nature of conditions precedent to any liability arising.
With regard to paragraph (a), Deputy Keogh's amendment would exempt occupiers from liability unless they actually knew that there was a danger on the premises. They would not be liable even if they had reasonable grounds for believing that there was such a danger. Such a proposition, which places a premium on ignorance, could not be justified. The aim of the Bill is to strike a fair balance between the rights of occupiers and people using premises. An occupier should not escape liability where he or she has reasonable grounds for believing that a danger exists and takes no action on foot of that belief. However, if the danger is not one against which the occupier can reasonably be expected to provide protection, that is another matter.
The same would apply with regard to knowledge of the entrant being on the premises and in the vicinity of the danger. Reasonable grounds for belief as regards these matters should rank equally with actual knowledge to satisfy the requirements of paragraphs (b) and (c). The amendments also seek to reduce the liability of an occupier, even of an occupier who had acted with reckless disregard, by deleting the references in paragraphs (b) and (c) to the occupier having knowledge that the entrant was likely to be in the vicinity of the danger. Surely if an occupier has knowledge that a person is likely to be in the vicinity of a danger, that is a relevant criterion to be taken into account in deciding whether the occupier acted with reckless disregard.
I should emphasise that an occupier will not be liable if the criteria in these paragraphs are not satisfied. However, even if the occupier had the requisite knowledge of the danger and of the presence of the entrant in its vicinity the occupier will not necessarily be liable under the section for an injury suffered by the entrant. Regard must also be had to the remaining provisions of the subsection before the liability, if any, can be determined. One of these criteria is the burden on the occupier of eliminating the danger or of protecting the person from the danger, taking into account the difficulty, expense or impracticability of so doing having regard to the degree of the danger. There are others which also recognise the difficulties an occupier may encounter in relation to recreational users and trespassers.
I regret I am unable to accept the amendments.
The Minister's provision is the more usual one. The danger in deleting the words as proposed by the amendments is that the occupier need only say that he or she did not know. The provision as it stands is probably preferable.
This provision contains an invitation to continue negligence-based rulings. I will withdraw the amendments. I accept the Minister's response but I wish to consider it again.
Amendment, by leave, withdrawn.
Amendments Nos. 13 to 16, inclusive, not moved.
I move amendment No. 17:
In page 4, subsection (2), lines 31 to 34, to delete paragraph (d) 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 looking at this matter from the point of view of the occupier and I am trying to emphasise that this is gross negligence. The Minister will probably use the same arguments that he used with regard to the previous amendments. However, I await his comments.
Paragraph (d) in subsection (2) offers considerable protection to an occupier in that it emphasises that a duty to a recreational user or trespasser will only ever arise if the danger is one against which, in all the circumstances, the occupier might reasonably be expected to offer protection.
We have already discussed, in the context of other amendments to section 4, the fact that the concept of reasonableness is integral to the civil law. Indeed, I note that the Deputy's amendment makes use of the term. In principle, there is little difference between the basic thrust of the Deputy's amendment and that of the existing paragraph (d). In one case, consideration would have to given as to whether failure to provide protection would reasonably be considered to be an act of gross negligence. In the other, consideration would be given as to whether it was reasonable in all the circumstances to expect the occupier to provide protection in the first place. In practice I am not convinced that the Deputy's amendment would improve the existing provision. I am not disposed, therefore, to accept it.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 5, subsection (2) (f), line 3, to delete "and".
Amendment agreed to.
I move amendment No. 19:
In page 5, subsection (2), between lines 3 and 4, to insert the following:
"(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; and".
Amendment agreed to.
Amendment No. 33 is consequential upon amendment No. 20; amendment No. 21 is an alternative to amendment No. 20; and amendment No. 22 is consequential on amendment No. 21. I suggest amendments Nos. 20, 21, 22 and 33 be taken together. Is that agreed? Agreed.
I move amendment No. 20:
In page 5, lines 6 to 15, to delete subsections (3) and (4).
The effect of this amendment is to remove the specific provisions on persons who are minors and persons with a mental handicap in section 4. That section deals with the duty owed to recreational users and trespassers. The provisions in these subsections have been among the most controversial in the Bill and were the subject of heated debate in the Dáil and other fora. In the light of the reaction these provisions have generated I have, as promised, re-examined the issues in a considered and critical way, taking into account views expressed during Second Stage debate and representations received from a wide range of interested parties.
A key factor influencing my decision has been the misunderstandings and misconceptions at the heart of the debate on the minors provision. The provisions have been misinterpreted by those who saw them as imposing a duty in relation to minors that was considerably more onerous than that owed to persons of full age. It was never intended that the provision be interpreted in this light but attempts to communicate its true import have been met with some disbelief and incomprehension.
I have looked carefully at section 4 in its entirety and am now satisfied it is possible to delete these provisions without losing any of the character fundamental to their inclusion in the Bill in the first place. In saying this I draw the attention of Deputies to the fact that as the majority view of the Law Reform Commission clearly indicates, a court can never be entirely prevented from taking the capacity of a child plaintiff into account in its findings. Factors such as the age of the particular child plaintiff and his or her ability to appreciate danger will therefore continue to be material to any case coming before the courts notwithstanding the removal of these express provisions from the body of the text.
However, I hope the removal of these provisions will allay the fears of those who saw in them the imposition of a special duty of care towards children who are either recreational users or trespassers. There never was any such duty of care in the Bill and so far as the removal of these provisions makes this clear, I hope the proposed amendment will meet the approval of Deputies on all sides of the House. With the proposed deletion of subsections 3 and 4, I believe the amendment proposed by Deputy Woods may no longer be necessary.
As the Minister said there was widespread concern and grave misgivings about the Bill, whether that was necessary or unnecessary. It is a coincidence that I proposed an amendment which is exactly the same as the Minister's. This is a response to the natural concerns people had and I am glad that, as he promised on Second Stage, the Minister agreed to review this section. There was no basis for the subsections suspending the lower standard when the person injured was a child. It meant that farmers and other landowners were left none the wiser about changes they needed to make to their work and safety practices. I thank the Minister for proposing the amendment.
I thank the Minister for the deletion of these subsections. The biggest single problem I, as a rural Deputy, encountered with this Bill since it was introduced was this provision; I said so at great length on Second Stage. The Minister has met the problems which were raised at many fora across the country in a reasonable way.
As Deputy Keogh said, perception is sometimes worse than reality. Perhaps this was not as bad as it appeared to be from the rural viewpoint but that is little use to people who felt huge anxiety. Several communities will praise the Minister for doing this. At every hall and community centre the provision relating to minors was raised.
Many farmers have land adjoining a town or city. On a lovely April day like today, the most natural thing for a child to do is to jump across a ditch, uninvited, as a trespasser, as we all did when young. As the law stood, the owners of such land believed that if one of those children had an accident — which is the last thing any farmer would wish to see — there were certain conditions under which the court would find in favour of the child.
Our case was, in the first instance, that the parents or guardians of that child should be responsible. It would be a quantum leap to believe the landowner could be more responsible than the parents in the circumstances I outlined, given that the child was not invited and was a trespasser. The matter is as fundamental as that.
When this matter is explained and reported in the days to come, particularly in the agricultural press, so that it is clear the legislation will not contain section 5 (3) and (4), it will be seen that the Minister set out to do what he could in the circumstances. Having met with many groupings from all walks of life he has seen fit to make this change in the best interests of everyone involved — it is as important as that. Without overstating the case, it will be much easier to go back to Galway East and tell those I represent they can sleep easier about the relationship of occupiers of land to minors who enter the land as trespassers.
This is a crucial amendment to the legislation and I seek clarification from the Minister of the effect of this amendment on what was known as an allurement. For example, a farmer may have a lake on his land which he knows is used by children for swimming after school, in the summer or on a Saturday morning. There may be a big tractor tyre which is being used as a swing or trampoline, again with an element of knowledge on the part of the farmer that it constituted an allurement for children. What would the status of this amendment be in those circumstances in relation to the concept of allurement? We all agree that this is a crucial amendment to the legislation bringing about a significant change from the original draft. Committee members, particularly Deputy Connaughton, might like some clarification on that.
My comments will be extremely brief because this is not something on which I need to elaborate at this stage. I welcome the Minister's decision to delete these subsections. I spoke on this aspect of the Bill at great length on Second Stage in the Dáil and gave many examples to illustrate the absurdity of the proposal and the need to address it. This section of the Bill probably excited most comment in the Dáil. The contributions of various Members homed in on this area. We should not forget that it did not only have implications for farmers — although they were probably more affected than anyone else because of the amount of land they own — but also for fishermen, community groups and many rural and urban dwellers. I am delighted with what the Minister has done. He has responded positively to what was said in the Dáil and I think he will get great credit for that.
I also welcome the amendment. I expected that the Minister would take this action. There is no question that, from the Minister's point of view, it was a worthy approach to this area but in practice this section would have been unworkable. It covers both trespassers and recreational users. I mentioned earlier the question of scouts' visits and supervision.
The second part of this amendment relates to persons with a mental handicap. As Deputy Kenneally said, this amendment will give much relief and is welcome. We are discussing it in conjunction with amendment No. 21. Earlier we had some discussion on amendment No. 19 in the name of the Minister. We spoke about 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. Amendment No. 21, in my name, states:
. . . . 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.
In other words, it provides that there should be some degree of supervision when an adult brings a group on to the premises. This issue has still to be addressed. I will withdraw that amendment but I ask the Minister to consider the issue separately on Report Stage.
The chairman raised the famous ESB case dealing with allurement. He is aware of the precedents in the area and mentioned the duties to a trespasser. In the famous case McNamara v. ESB in 1975, that duty was said to be to do no act so as to intentionally or recklessly injure the trespasser whose presence was known or ought to have been known. That is very relevant to the issue we are discussing here because the duty to a trespasser, while the subject of some extension in relation to minors, as provided in the McNamara v. ESB, is to do no act to intentionally or recklessly injure the trespasser. The problem of allurement is an issue that needs to be addressed.
When we were discussing amendment No. 19 — I said at the time that it would have been better to discuss it with amendment No. 21 — I mentioned scouts breaking up into groups. Somebody has overall responsibility for them and when they break into subgroups, somebody is responsible for the subgroups. Can the farmer or landowner rely on the fact that the supervision is expected to extend? The same would apply to people with a mental handicap. Having said that, I will withdraw amendment No. 21 and give the Minister an opportunity to consider it on Report Stage as an issue in itself. We are happy to support the Minister's proposal.
I also thank the Minister for making this change. As everyone said, this section caused the most worries. The involvement of minors creates a danger that judges would automatically support their claim. Nobody wants to see young people injured but we should not decide that they are entitled to go on to private property and, if they get into difficulty, sue. If subsections (3) and (4) were not deleted, judges would interpret them sympathetically and it would be a nightmare for property owners, particularly farmers who are very generous with their land if people behave themselves. However, the danger nowadays is that many young people go on to land for wrong purposes. While they have our sympathy if they injure themselves, it is absurd that anybody should have to pay them compensation because they should never have been there in the first place.
I welcome what the Minister is doing. I did not get an opportunity to speak on Second Stage. I appreciate fully his response to the concerns articulated. A voluntary contribution from group leaders also involves responsibility. If the legislation as originally drafted was passed — I welcome the fact that the Minister is not doing this — it would have taken a certain degree of onus and responsibility away from group leaders, involved with scouts or youth, and from parents and guardians who equally have responsibility. There would seem to have been a diminution of that responsibility so I heartily welcome the Minister's amendment.
I think the Deputies for their kind remarks which I appreciate. I will re-examine Deputy Woods's point about amendment No. 21. In reply to your own query, Sir, the common law rules are being repealed and replaced with a new regime, the criteria of which are set out in great detail in section 4 (2) paragraphs (a) to (g).
While I am happy to delete the provision regarding children it will still be a factor a court will be entitled to take into account in looking at all the circumstances of a case. Obviously, each case will, as always, depend on the special circumstances applicable to it. At the very least, perception is an important factor, particularly in rural areas, and I am glad we have met that to the satisfaction of Deputies on all sides of the House.
Amendment agreed to.
Amendments Nos. 21 and 22 not moved.
Members will recall that on the first occasion we met, we looked towards 2 p.m. on a Thursday as being the normal time for our committee meetings. There has being a request from the Government Whip, in light of all committees meeting at different times, that we might consider moving to 2.30 p.m. on a Tuesday afternoon, when we would have a better chance of having a room to ourselves. I ask Members to consider that.
I have no problem with that.
What are the reasons again?
Three legislative committees have a slot for Thursday afternoon, with none meeting on a Tuesday afternoon. That slot is vacant. It would be our preferential slot for discussing legislation and conducting our business from hereon in. We would have preference for venue and that would be our time. Is that agreed? Agreed.
The Select Committee adjourned at 7 p.m. until 4 p.m. on Wednesday, 5 April 1995.