I move amendment No. 35:
In page 6, line 17, after "by" to insert "reason of a danger existing on the premises due to".
This is a technical amendment.
SECTION 7.
Amendment agreed to.
Amendment No. 37 is an alternative to amendment No. 36 and both may be discussed together.
I move amendment No. 36:
In page 6, lines 19 to 24, to delete all words from and including "if the occupier" down to and including "otherwise".
I am concerned that this subsection overburdens the occupier in regard to the checking procedures he or she must undertake as regards the work carried out by a contractor. Perhaps the Minister could allay my fears in this regard. The subsection suggests that the occupier must check all the work carried out by a contractor. It is not reasonable to put such an onus on the occupier, if that is the case. Perhaps the Minister could clarify this point. It has been suggested to me that the occupier would have to scrutinise every piece of work carried out by a contractor.
Section 7 states:
An occupier of premises shall not be liable to an entrant for injury or damage caused to the entrant or property of the entrant by reason of a danger existing on the premises due to the negligence of an independent contractor employed by the occupier if the occupier has taken all reasonable care in the circumstances (including such steps as the occupier ought reasonably to have taken to satisfy himself or herself that the independent contractor was competent to do the work concerned and that the work had been properly done) unless the contract between the occupier and the independent contractor expressly provides otherwise.
My amendment, No. 37, proposes that "in page 6, lines 22 and 23, to delete ‘and that the work had been properly done'". The provision as it stands means that the occupier would have to ensure that the work had been properly done in order to avail of the immunity provided by section 7. This could mean that the occupier of a premises might have to engage another contractor to inspect the work to see that it was properly done. This is nonsense. If the work causes an injury, it would be an open and shut case that the work had been properly done. It does not seem logical then that an occupier should have to check the work if is is being done by a competent independent contractor. The immunity would not arise if such contractor was not used by the occupier. Surely it is only sensible then that when he has ensured that an independent contractor is competent to do the work, he is entitled to rely on the work done by that contractor? That is the purpose of my amendment.
Both these amendments have a common theme in that they seek to broaden the application of section 7, which deals with the liability of occupiers for the negligence of independent contractors. Deputy Keogh's amendment is the more sweeping of the two in that it would provide a complete exemption for the occupier even where that occupier might have good reason to suspect that he or she was not necessarily employing someone competent to do the job for which they were contracted. By contrast, Deputy Woods's amendment would remove the onus on the occupier to take reasonable steps to see that the work contracted for had been properly done.
I understand why the Deputies may fear that the section is imposing too much of a burden on occupiers, but that fear is based on a misconception. The steps which an occupier must take are those which he or she ought reasonably to take. These steps will vary enormously with the circumstances. For example, if an extension is being built to a house, most prudent occupiers would be anxious to ensure that the work was supervised by a properly qualified professional, or at least checked by such a person on its completion. For more domestic tasks, it would be unreasonable to engage in a constant cycle of checking and rechecking. A line must be drawn at some point on the work regarded as finished.
I am happy that the provision as it stands is a sensible one and I am not disposed to making the changes suggested by the Deputies.
Is the Minister seriously suggesting that if I built an extension to my house and I employ a competent and well known contractor, I am also expected to employ an expert to look at the work done by the contractor? This is ridiculous. Many people employ reputable contractors — there are cowboys in every profession and trade — to do work and accept in good faith that because they have a good reputation the quality of the work will be, in the Minister's words, "of such a standard as to be safe and good". I could give many other examples, but I will not take up the committee's time. That thought struck me when I was listening to the Minister's reply. I know nothing about building construction, but the Minister seems to suggest that if I employ a reputable contractor and pay him the going rate, there is an onus on me to take reasonable care to ensure that the job is done properly. If I accept he is a reputable contractor in the first place, I accept he will do the job properly. It is unreasonable to ask me to employ another expert to check the work. Perhaps I am misinterpreting what the Minister said.
The obligation under the section is that an occupier would take all reasonable care in the circumstances. I do not understand how one can find fault with that provision. Deputy Fitzgerald is a prudent person and I am sure that if he employed a reputable contractor to do a major extension on his house costing £10,000 or £15,000 — it depends on the circumstances and nature of the job — he would also secure the services of an architect to check out the job because the contractor's responsibility is only one aspect of it. If I, or Deputy O'Dea, were acting as his legal advisers we would advise him that if he was employing a contractor to do a major job, he would need the professional qualification of an architect to oversee it. Architectural and safety consideration come into play in this regard. That might not be necessary if it is a minor matter; it depends on the particular circumstances.
One must remember that, at the end of the day, when that extension or that building work has been finished at Deputy Fitzgerald's house, it is still the Deputy's house, and people who go to his house will hold themselves as visitors to him; they will expect that he will be responsible for their safety and that his duty of care will be complied with. It is still his house, even though an independent contractor may have undertaken a major job on it. Let us assume that it was a competent contractor or a person who had the repute of a competent contractor, but he did something incompetent on this occasion — even the most competent of people by and large will do something incompetent or one of their employees may do something incompetent, because ultimately one is dealing not with one person, but perhaps a major group of people, including some who may have been taken on for this job and had not worked for the contractor previously. There are, therefore, all kinds of complications and situation which can arise. Where some accident results Deputy Fitzgerald can say to his visitor:
Well, don't come to me. I know you came as a visitor into my house and I invited you here and I am sorry you fell through the floor boards and broke your leg. Go and talk to X and Company Limited, who did this job for me nine years ago, because they were independent contractors and they had the reputation of being A 1 at the time and I relied on them.
It is a complex area and the position of an independent contractor is special, but to enable the Deputy to totally escape liability and heap it all onto the independent contractor, a number of reasonable preconditions are necessary — reasonable having regard to the particular circumstances of the case. One of these would be that the person whom the Deputy took on to do the job was certainly competent by repute and that it was not some cheap-scape knock down job that the Deputy was getting done. Another would be that the Deputy carried out the necessary supervision and that he did not just close his eyes to what had happened on the basis that he was an independent contractor, entitling the Deputy to ignore all that follows from this. If the Deputy, therefore, takes steps to ensure that the contractors are competent and that he will ensure that the job will be finished, which any prudent person would do, he will then escape liability, not not otherwise.
I do not understand the Minister's remarks about heaping all the liability onto the independent contractor. The independent contractor is either negligent or he is not. If he is negligent he is liable and I do not see where the occupier should come into it. The Minister has said that if somebody takes on an independent contractor to undertake a major extension to his house to the value of £10,000 to £15,000, he should employ an architect to ensure that the job is completed properly. This is reasonable and acceptable. However, if somebody employs an independent contractor to undertake a repair to the roof costing £500, is the occupier required to have the job checked out? Where is the cut off point? Would it be at £1,000 or £2,000?
It is an unreasonable requirement. If there is no independent contractor involved, then the liability is loaded off to the occupier. If an independent contractor undertakes the work and he is negligent, then he is negligent and I do not see why liability should in some way be transferred to the occupier and why the negligent person should not be totally liable. Why have liability loaded onto somebody else? Where is the cut off point? If a farmer gets an independent contractor to hang a gate what steps does he have to take to ensure that the gate is properly hung before he finds himself liable to somebody because it was wrongly hung in the first place by an independent contractor who is, admittedly, negligent? I do not see why the occupier should be brought into this.
I accept Deputy O'Dea's remarks with regard to this matter. If I, in all good faith, employ somebody to effect a repair to my roof I am not going to get up on a ladder to check out the roof. I would expect that the independent contractor would be liable with regard to it.
The Deputy could employ an architect to do it and she would be very foolish to pay out her money for the job if she did not do so.
That is unreasonable, because if there are small repairs one must be realistic about it. If, as a householder, I had repairs to be done to the guttering or whatever and I employed an independent contractor to undertake those repairs and if the contractor turned out to be negligent, despite my good faith in him, I would not expect to engage an independent source to examine the repairs and it is unreasonable to expect any householder to do so.
The same point was raised by Deputy Keogh and Deputy Woods as to where the line is drawn. It is drawn, as it is written into the section, which states: ". . . the occupier has taken all reasonable care in the circumstances. . .". It would, therefore, depend on the type of the contract. A job worth £50 would be one position; a major job worth £15,000 to £20,000 would be another. It is standard practise, when major structural undertakings are done and appreciable contracts are placed, that they are supervised by an architect and any person who does not avail of those services would be very foolish. However, in practise they do have the services of an architect, who checks it out and ensures that it is being done properly. At the end of the day, casual people are doing the job — it may be the most fancy of contractors, but work people come and go and there may be somebody new on the job or whatever. Nevertheless, I appreciate the points made by the Deputies with regard to these two amendments and if they are withdrawn I agree to consider them further for Report Stage.
Deputy Keogh, are you satisfied with this?
Yes.
The section is good, and it does something which is very beneficial, so from that viewpoint the provision is laudable. However, given the provision, once there is an independent contractor who is competent and the person concerned has satisfied themselves that the contractor is competent, this should be sufficient. Otherwise much work and expense would be made for everybody. I was going to propose that the Minister should consider this issue for Report Stage and I am happy to withdraw my amendment on those grounds.
When the Minister is considering this matter, will he do so in the context of the size of the contract, because in any of his contributions he has spoken about big contracts. However, the real problems arise with small contracts of £500, £1,000 or whatever and will the Minister, therefore, consider the matter in that, rather than the larger context?
I took the meaning from this that it was when work was ongoing that something may happen, but now it appears that it is when the work has been completed. Why make a distinction at this stage? Why, when repair work has been undertaken, is it not simply a house, and why introduce these other factors?
If we did not introduce the section, the question of putting off any liability that would arise from the occupier to the contractor would not arise.
It is beneficial to the occupier, and in that sense it is a good provision. However, the benefit could be lost unless the following words of the section are deleted: "...and that the work had been properly done)...". This refers to the issue of a competent person, and the person engaging the contractor has to be assured that the contractor is competent. All would support the Minister in this respect, but perhaps he will consider the matter further for Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 37 not moved.
Section 7, as amended, agreed to.