Amendments Nos. 38 and 39 will be discussed together.
SECTION 8.
I move amendment No. 38:
In page 6, paragraph (a), line 28, to delete "or".
Section 8 provides that nothing in the Bill will affect any statutory or common law liability of an occupier as a member of a particular class and which has been imposed under a separate code. The occupier, for example, might be the owner of a hotel, a railway or bus company and it is necessary to make it clear that he will continue to be subject to the particular regulations governing these occupations as well as the duties set out in the Bill.
A further type of liability needs to be provided for in this section and this is the purpose of the amendment. It arises in certain cases where an independent contractor is employed to carry out work and does it negligently causing injury or damage. The general rule is that any person who engages an independent contractor is not vicariously liable for the consequences of the contractor's negligence. However, a person, whether an occupier or not, can always be liable if, for example, he or she has been negligent in not ascertaining that the contractor was competent to do the work. That is the case dealt with in section 7.
Over and above that type of case, the person employing an independent contractor will be personally liable under the present law if the risk created by the activity is inherently dangerous. This liability is imposed in the interests of the protection of the general public. The duties are of such a nature that in the public interest they cannot be delegated in the sense that the employer of the independent contractor cannot escape liability by leaving their performance to the contractor. The amendment, accordingly, preserves this existing liability in so far as an occupier is concerned for injury or damage caused by the fault of another person with a duty imposed of such a nature that it may not be delegated. The cases covered by the amendment may be rare but it is important to preserve the general principle it enshrines. I commend it to the committee.
The amendment is agreed. There will be concern about some of its implications because it deals with liabilities that cannot be delegated. At this stage, I would like to examine the Minister's comments further and perhaps discuss it on Report Stage.
I move amendment No. 39:
In page 6, paragraph (b) (iii), line 38, after "employees" to insert the following:
", or
(c) any liability imposed on an occupier for a tort committed by another person in circumstances where the duty imposed on the occupier is of such a nature that its performance may not be delegated to another person".
Amendment agreed to.
Amendment No. 40 not moved.
Question proposed: "That section 8, as amended, stand part of the Bill."
It is an interesting section. For Deputy Browne's information — he referred to this point earlier — it provides that occupiers may continue to defend both themselves, others and their property, notwithstanding anything in this Act.
I hope I will never be forced to do so.
Question put and agreed to.