Occupiers' Liability Bill, 1994: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mrs. T. Ahearn

I am concerned about the section dealing with minors. I am glad the Minister stated he is prepared to listen to the views of Deputies and is open to consultation with various interest groups. I am hopeful that the section will be improved on Committee Stage.

The Bill is welcomed by the main farming organisations which have rightly wanted such legislation for many years. Their impatience has been aggravated by the climate in which we live. It is to our shame that we live in a climate where to sue at all costs is now an acceptable standard of behaviour. As a nation we have become almost obsessed with litigation which generally leads to a handsome reward. As a result, farmers and local authorities have to cope with excessive insurance costs. Such costs are becoming a major burden on the finances of local authorities. In my local authority of South Tipperary, we had to make a decision last year to remove playground equipment from some of our parks because of the number of claims made against the local authority. This is a regrettable trend. Unfortunately, some people avail of every opportunity to get a few pounds in their pockets by such means. In the long term, however, the general community suffers.

In providing housing, it is the intention of local authorities, encouraged by the Department of the Environment, to also provide adequate leisure and playing facilities. Indeed, we have made tremendous progress in providing proper and safe playgrounds for children— and this is why I am so concerned about the section which does not exempt farmers from being liable for injuries to children on their land — they are liable to have an accident. Children do not concentrate, they do not see the pitfalls and, as a result of that, my local authority was forced to remove playground equipment from many parks and playing areas within our housing estates. I have no doubt that we are not exceptional in this regard. In addition to having to cope with major expenses for insurance costs, we no longer have the necessary facilities. Therefore, nobody wins.

The same applies to any of the organisations whether it be Macra na Feirme or a horse riding club; the cost of getting insurance for any public event is now almost prohibitive. In rural areas, many leisure events have had to be cancelled because of the difficulty not only in paying for the insurance costs but in getting an insurance company to take on the responsibility. Unfortunately, that is the case all over the country. Until there is an end to the awarding of massive sums of money in compensation there will be huge costs for insurance. There is an incentive to sue if, even though one may not be 100 per cent right, there is money to be had. As we speak, occupiers are open to being sued for something for which they have no responsibility and over which they have no control. As a person who resides in a rural community, I find it difficult to explain adequately the concern of farmers because of lack of protection in this area. We have seen emergency legislation passed in this House so this can be done when there is a will, when a matter is given priority. I regret that this legislation has never been given that priority. We welcome the Bill today but it should have come before this House long ago. The people who are suffering because of the lack of this legislation just want justice and fairness and are prepared to take responsibility if they are the cause of an accident. They rightly say that they should not be held responsible for something over which they have no control.

I am happy with the Bill, with the exception of the section dealing with minors. I am happy that action is being taken to protect the interests of occupiers and end the nightmare that could devastate their lives. I congratulate the Minister on bringing this legislation before the House. I look forward to the Committee Stage. I hope when this Bill is passed it will result in protection for occupiers and reasonable care by them. We have to correct some parts of the Bill about which there is concern. I look forward to the Bill passing all Stages in this House.

Mr. Kenneally

I welcome the opportunity to contribute on this Bill. There are concerns about the Bill on the other side of the House, as there are on this side. Farmers, because of the nature of their business, owner occupy the vast bulk of the land of Ireland. They have always, in their traditional sense of tolerance and hospitality, permitted various organisations to come on to their land for a variety of activities. These range from the age old fishing, shooting and hunting to the more modern pursuits of cross-country athletics, orienteering, bird and nature watching, and walking and picnicking. The have allowed the gathering of firewood, unused vegetable crop and have put few restrictions on people generally.

Over time a mutual trust and respect grew between the farmer and the visitor and that was always sufficient to ensure that no liability and resultant loss would fall on the farmer in the event of an injury being suffered by a member of these organisations or indeed of the public at large. Times have changed. Today there is an emerging development where, like the rest of the population, farmers who have contact as property owners with the public may have to face substantial claims made against them by reason of injuries suffered by those crossing their lands. A liability by farmers to those enjoying the use of their lands must not be established, except in certain clearly defined cases. From discussions I have had with farmers and those who wish to follow these sports and pursuits, it seems certain that the solution to this issue is the introduction of legislation which provides that liability does not attach to the landowner or occupier in the case of personal injury by either a trespasser or a recreational user. That is where people have or have not a farmer's permission. This would obviously exclude the other category, which is where people have been invited on to land or property in furtherance of a commercial activity, for instance, farmhouse holidays, pony trekking etc. where farmers would still be required to discharge their duty of care as required by law.

These are the issues which this Bill should be addressing but signally fails to do. I am disappointed that in bringing forward this long awaited and much demanded legislation an opportunity has been lost to address these legitimate concerns. Worse, if the Bill is passed in its present form, it will make bad law and the last state may be worse than the first. I hope the situation can be improved on Committee Stage.

Just as the Safety, Health and Welfare at Work Act, 1989 places a duty of care on employees to take all reasonable steps to ensure their own safety and welfare, I think it wholly reasonable that people who enter lands whether as a trespasser or as a legitimate sports enthusiast should be responsible for their own safety, unless, of course, they have been injured by some intentional act of the occupier. It would be quite easy for proper consideration and arrangements to be made for special cases, such as access to historic monuments, churches, graveyards, rights of way etc. which could not deviate from the main thrust of the objective I have just outlined. It is essential that we do that, as presently some very interesting places, buildings and features have been withdrawn from the use and enjoyment of the public. I could quote examples of that in my own constituency.

Farmers are, rightly, losing their patience on this issue; equally, are followers of country sports and the wider public when they are affected. Taken together, these people amount to a significant majority and their rightful wishes are being ignored. Equitable and properly framed legislation would have the support of all farmers' organisations and of all the country sports organisations, but these proposals do not find favour.

I realise that there is a certain body of opinion that present law is adequate to deal with the problem. Some people even suggest that this legislation is being introduced because of the various interest groups that have lobbied us as legislators to do something about the issue. To counter that argument I quote paragraph 4.9 of the consultation paper presented by the Law Reform Commission:

Perceptions of their legal position by would be defendants have a social importance which does not depend on their accuracy. If self occupiers believe that the present law imposes too high a burden on them relative to trespassers, they will be disposed to act in ways that have significant social consequences, some of which are likely to be detrimental. Occupiers may actively seek to prevent a range of persons from coming on to their property, where formerly what may have been technical trespassers were tolerated. One thinks here of the minor, generally harmless, incursions of walkers and picnickers in rural areas. If farmers are to turn their fields into fortresses and to treat as enemies all entrants who have not been invited on to their property, the community, and especially those coming from urban areas, will greatly suffer. To argue that this suffering is ultimately needless because it is based on an inflated apprehension of legal liability is beside the point.

Whether we like it or not there is a perception among rural occupiers and their insurers as to their potential liability, and this has led them to take steps in reducing access to their properties. Farmers cannot turn their fields into fortresses, and they should not have to. Neither should they be asked to shoulder the consequent burden of liability.

Up to now I have been speaking about the occupiers of land and the problems they face in relation to this Bill. We must look at it from the other side as well and think about the person who is using the land, whether it be as a trespasser or for recreation. There are so many areas of recreational activity such as camping, fishing, hiking, hill walking as well as the country sports. Generally speaking these are engaged in by people who are not necessarily looking for the protection which it is being suggested they need. The welfare of these people should be their own personal responsibility, and the only exception should be where there is a deliberate intent on the part of the occupier to injure the person using his land. Take the case of the farmer who allows a scout troop to camp on his land. There is no way he can foresee or cater for the huge number of possible accidents which could occur in such instances, perhaps involving trees, streams, cliff faces, rabbit holes, culverts, etc. The list is endless. The troop know the hazards and will and must take care of their own liability and indemnify the landowner against loss, but where a landowner deliberately exposes those people to risk or is grossly and obviously negligent we cannot be expected to absolve him of that.

I note there were submissions from many organisations such as the Mountaineering Council of Ireland, National Coarse Fishing Federation of Ireland, Irish Ramblers Club and many more who use the countryside. By and large they would be quite happy to be responsible for their own safety.

There are great concerns about the liability of occupiers of land arising from this Bill, particularly in its application to minors. In this regard I would be severely critical of the Minister for reversing the recommendation of the Law Reform Commission which said there should be no special duty of care on farmers towards minors who come uninvited onto their lands.

Primarily responsibility for the safety and behaviour of minors should rest with their parents or guardians or others acting in loco parentis. Too often we allow parents or guardians to shirk their responsibilities for the health, safety, welfare and behaviour of their children outside the home and I would not like to see that irresponsibility further extended by this Bill. If, as in other circumstances, parents or guardians fail to discharge their responsibilities properly, they should be made amenable to the law as with their other responsibilities. If, for instance a child wanders on to a property and injures himself on a sharp tool or a defect on the property which would be dangerous only to a minor, then, it appears under this Bill, the occupier will be liable. That is just not acceptable. If, for instance children go into a farmer's haybarn, play with matches and burn down the barn killing or seriously injuring themselves in the process will the law load that farmer with the guilt of the children's fate on top of the loss of his property and the consequential inconvenience?

There does not necessarily have to be an apportionment of blame, for if the suggestion now is that the parent or other minder was not responsible for that child's safety then the occupier, who had no previous knowledge of the existence or approach of the child, should not be liable either. Just because an accident happens on a property, should not mean automatic liability for the occupier as seems to be suggested by the Bill. We cannot make the whole population babysitters and childminders for negligent parents and ask them to pay for the privilege too.

The most obvious and common example is the traditional practice in autumn of children collecting horsechestnuts or conkers. There is a genuine fear, given the claim-conscious climate, that if a child falls from a tree while picking chestnuts, he would be successful in a claim against the farmer. What is the farmer to do? Fence off the tree? Cut it down? Go to the expense of printing and putting up warning notices? It is ridiculous that a farmer should be held liable under such circumstances and this Bill should be very clear in relieving him of that burden.

The only responsibility a farmer or other occupier should have in regard to trespass is where an unreasonable hazard is deliberately placed to deter such trespass. This would be well beyond the bounds of barbed wire, broken glass on walls or guard dogs for which adequate warning signs have been erected.

Take the case of the farmer who is spraying weeds in a field three hundred yards from the public road. At lunchtime, for the half-hour he will be back at home, is he expected to invest another half an hour wrapping up and putting away dangerous chemicals and signposting the sprayed area just because some unaccompanied child may wander on to his property, interfere with things which do not belong to him and may be injured in the process? That would be a difficult scenario of which to convince farming people. We must place responsibility where it should properly be, and not burden occupiers unnecessarily.

The courts have previously ruled on cases of liability which in any objective view were not fair to the occupier. We are told that such is not the case in farming yet, but it has happened in urban areas. We must never allow a situation where a burglar can successfully claim for injury against the property owner or occupier, just because he received an electric shock, cut his hand on broken glass or fell foul of a properly handled guard dog. That would not be the fault of the courts, they apply the law as they find it. The responsibility is ours, the remedy is in our hands and it would be a tragedy, given the opportunity we have, not to place liability for injury which takes place on another's property, where it really belongs, on the trespasser.

Another instance which comes to mind and on which representations have been made to me on several occasions is the situation in regard to community halls and the liability of their committees and trustees in regard to personal injury. We can all remember the famous court case in the midlands 20 years ago, where grave hardship and worry was imposed on the committee of an uninsured community hall as a result of a claim. That worry is still in the minds of all voluntary administrators of parish and community halls since, and it is fair to say that some of the best and most dedicated people will not be involved in their administration while there is a greater than necessary risk involved.

We must address their fears and reservations head-on and while we do not want to take away anyone's rights, we must protect those who voluntarily give their time and energy on behalf of the community from the spurious and excessive claims of people who feel that an injuries claim is a chance of free money.

When discussing this Bill, we are mostly thinking about it in a rural context, but I can think of one urban situation which can cause grave problems for house owners due to trespass in their gardens. The situation I am referring to is one which is quite prevalent in one particular area of my constituency in Waterford city and it is also a fact of life in many suburban estates, largely in the bigger urban centres throughout the country. Indeed I have even raised the subject on a previous occasion on an Adjournment debate. I am referring to cases where householders are plagued by roaming horses usually, but not always, owned by members of the travelling community. The problems normally arise in areas close to their encampments. I have seen small children gallop up and down the roads on these animals putting themselves and other road users at risk. Quite often they wander in and out of the gardens. If these gardens are not privately owned, they are owned by the local authority, which could become liable for extremely large sums in compensation under this legislation.

We have developed a compensation culture and the "easiest mark" traditionally is the public authority. Schoolyards, public parks, town footpaths, manhole covers and telephone poles are seen as a means of making easy money and it has been proved that some people were making a career of it. There is hardly a public playground left in the country and the end losers are the children who are used cynically to make money. While in some recent cases judges told claimants that they had responsibilities to discharge and refused their plea, we remain a claim conscious society. We now have an ideal opportunity to send a clear and unequivocal message to the public at large and to con-artists in particular that this is the beginning of the end of free money from either the public purse or over burdened property-owners or occupiers. Therefore, I am extremely worried about what they might be left open to in the future, through the passage of this legislation.

We do not have adequate legislation to deal with the ongoing problem of wandering horses, no matter what anyone would like to say to the contrary. I realise that the primary responsibility to impound wandering animals rests with the local authorities which are supposed to maintain pounds for that purpose. Naturally enough, the Garda is also authorised to impound and to asist the local authority responsible. However, most local authorities do not have the necessary pounds, do not have the resources to operate them and in practice it would not work anyway. The reason is quite clear — there would not be adequate affordable security at a pound operated by a local authority. As I said on several occasions before, the only way to adequately deal with the problem of straying or otherwise improperly controlled animals is through the operation of regional pounds by a national authority. Legislation is badly needed in this area and it is something I hope to see come before this House at an early date. Equally urgent is the necessity to deal with unauthorised camping for long periods by large numbers of travelling traders to the grave annoyance and discomfort of nearby residents who sometimes are made to feel like prisoners in their own homes. That is another day's work.

We do not have adequate legislation and must make do with what is on the Statute Book. The problem of unsupervised children is exacerbated under the Bill. I referred to the problem a local authority may face. Every local authority tenant is not a model one. In many cases, they are likely to leave the surrounds of their houses in poor condition, often with overgrown gardens. One does not know what well hidden dangers lurk inside. Are we to assume that the occupier is responsible if a young child wanders into the garden with an animal and the child, animal or both are injured? Such cases will end up at the door of the local authority. Is that what we want to achieve? It is neither fair nor reasonable. From my reading of the Bill they are open to such claims. This issue must be addressed.

Many people have acquired their own homes through various tenant purchase schemes or through their own hard won resources. Children on horseback can wander into their gardens. There might have been a romantic attitude adopted to this practice in the recent film "Into the West" but it can lead to danger and an unnecessary liability on public funds or on the limited resources of householders. Alternatively the liability is that of the occupier which is not fair or equitable. The Bill has many flaws and must be amended. I will deal with the amendments to it in more depth on Committee Stage.

Dr. Upton

I welcome the Bill and the Minister's attitude towards it. He said he had an open mind on many aspects of it and would listen carefully to concerns expressed. From a political point of view the Bill is non-contentious.

Farming organisations were concerned that farmers might be exposed to liability arising from legal actions taken against them by trespassers or others who enter their lands. The matter was considered by the Law Reform Commission which published a report on it two years ago. The experts in the commission did not all agree and the Minister did not accept everything contained in the report.

Some contributors spoke about the urgency of the Bill but I disagree. It is better that we would spend time getting the technical aspect of the law correct rather than rush the Bill through the Dáil. Although farmers and property owners are exposed to some risk, I am not aware of farmers suffering excessive hardship as a result of law suits taken against them by trespassers. It would be interesting to know how many such cases have been taken over the years. However, there is real concern among farmers and property owners. The risk should be removed and farmers should be free to allow the public access to their lands in order to enjoy fishing, camping, hill walking, visiting places of historical and environmental interest and so on. It would be a pity if farmers prevented people from entering their lands because of the risks.

I understand why farmers adopt that cautious approach. It is unfair to expect them to take risks without any benefit accruing to them. The small farmer, or those who do not take appropriate precautions to ensure they are protected, are more likely to be at risk in that they would not have access to good legal advice, insurance cover and so on. Some farming organisations advocate that farmers refuse the public access to their lands. It is desirable that as many people as possible enjoy the countryside. That is an important part of our tradition and of the tourism industry.

Concerns have been expressed about the definitions contained in the Bill. Some farming organisations say that "visitor" can include anyone. I am not a lawyer and do not know if that is correct. The possibility that a trespasser could be regarded as a visitor if he took reasonable steps to leave the property on which he was trespassing also gives rise to concern. Perhaps the Minister might have another look at the definitions section.

I understand that "minors" have not been defined in the Bill and there is concern about that. If people enter land or property I do not understand why the risk attached to so doing does not rest with the person concerned. Responsibility for children should rest with their parents or guardians and not with the landowner.

I might refer briefly to the overall matter of the compensation culture which has become a very important aspect of life in society. There is no doubt that some people who sue for compensation are entitled to it but there are many recorded cases of people simply engaging in this practice, devoting themselves to becoming involved in accidents, then claiming compensation. Every effort should be made to achieve its abolition as it is a matter of grave concern to local authorities and the wider public service. For example, I understand there are approximately 3,500 compensatory cases pending against the State — involving an enormous amount of litigation — with a potential value of £1 billion. I am not in a position to ascertain how many of those claims are valid or legitimate — ultimately, our courts and legal processes will determine that — but we have become very litigation conscious.

The matters being considered under the provisions of this Bill are of considerable concern to many of our people, a clear indication of the extent to which society has changed. The old law had obtained for, perhaps 100 years or longer, yet nobody had been particularly bothered about it until the past ten to 15 years. The risks were always there but the way people behaved then meant that they did not avail of every opportunity to sue others. It is questionable whether it is desirable that lawyers should specialise in making a livelihood from this type of work. Certainly, the emphasis on such specialisation, on almost touting for business is a recent phenomenon and I understand it is the subject of considerable debate within the legal profession. There was a time when lawyers were prevented, by the ethics of their profession, from advertising for business, which is no longer the case. I am not sure that all the changes are desirable. For example, I am not sure it is desirable that people should become involved in law cases on the basis of "no foal, no fee" which encourages litigation, for which, at the end of the day, the general public pick up the tab.

Perhaps I am beginning to travel the road recently travelled by Dr. Martin Mansergh who spoke about lawyers having excessive influence in this country, a role about which Deputy McCreevy also had some adverse remarks to make recently. Nonetheless, there is an element of truth in what they said.

Mr. N. Treacy

I am glad to have the opportunity of contributing to this debate and wish the Minister well in his renewed appointment. I hope longevity will be the order of the day for him. However, we will wait and see how things progress.

The provisions of this Bill constitute an improvement on the previous position but contain considerable vagueness, leading to much concern on the part of the farming community and property holders generally. I hope to highlight some problems warranting clarification before the provisions of the Bill are enacted.

We all recognise that farmers, particularly those who own land, and other property owners, have always been accommodating and generous to visitors, friends, spectators and participants at sports and other people who used their properties over many years. It must be recognised that there is a tradition in the country of people being generous by nature and making their properties available for the enjoyment of others, on the understanding that it is purely for their enjoyment and not at the expense of the people good enough to provide a facility, albeit on a voluntary basis, on many occasions, without becoming victims of their generosity.

While there are those who believe that tradition is something to be terminated or changed in all aspects of life — for example, revisionists believe that history should be rewritten and that practices that have withstood the test of time should be changed to give a different view of the past — it is important, in passing any laws, to respect the traditions and generosity that have obtained for so long. It is incumbent on us to ensure that laws are equitable, fair and transparent, and do not impose impediments or extra responsibility on those with absolute rights under our Constitution, as property owners, or individuals who have personal rights under that same Constitution. It is important that legislators do not interfere or transgress the constitutional rights of each individual. Obviously, people who enter lands or properties also have personal rights, of which they themselves must be aware, knowing they must take care of themselves and responsibility should not be transferred to somebody else who might be an innocent victim in any given circumstance.

The tradition of hunting nationwide has created employment and has the full support of the farming community generally. Indeed, there are people within and without this House, even beyond this country, who believe they should come here and effect a change in that tradition. However, we must take account of the fact that tradition is very important, remembering that people, by tradition, in many cases cross other people's properties, particularly farms on the basis they know they are welcome. In considering the provisions of this Bill we must ascertain whether we will infringe the rights of people whose properties are traversed by others engaging in hunting. As I perceive it, there is ambiguity or uncertainty in this respect.

We should also examine the position with regard to fishing activities. We have beautiful small and large rivers which have been fished traditionally. Many people from small towns fish in small rivers, perhaps in the evening, in summer or at other appropriate or convenient times for them. They enter lands or property traditionally, particularly in the case of families with a long history of fishing whose children accompany them and who, when they become adults, maintain that tradition. People owning property along the banks of such rivers rarely have encountered any problem with such people who use a natural amenity for their private enjoyment. We must ensure that that tradition and individual right is not transferred, by way of impediment, resulting from the provisions of this Bill, to farmers and property owners who own the lands through which such rivers flow. The same applies to people owning property adjoining lakes. Many townspeople spend much of their weekend fishing large rivers and lakes with a very fine fishing tradition. If there are animals on lands adjoining these natural amenities, although constituting moveable assets, in contrast to fixed assets — which is the land people traverse — we must ensure that the provisions of this Bill do not transfer any legal responsibility from the person pursuing an ordinary, relaxed, leisure activity, to those whose property may adjoin such locations.

Some people believe that the traditional sport of shooting, like that of hunting, should not be pursued here. People inside and outside this House, and outside this country, do not believe people should pursue traditional sports. I fired a shot on one occasion, but it did not give me any pleasure and I have not fired another. Similarly, I hunted on one occasion, but it did not give me any joy and I have not hunted since. However, I respect the right of people to pursue those traditional sports and leisure activities. Nobody should deny their right to do so. No Act of parliament should impede the rights of those who are good enough to voluntarily allow traditional leisure pursuits — whether hunting, fishing, shooting, walking, running or cycling — on their property.

Responsibility or liability for injury suffered on their property should not lie with the owner. Having considered the Bill I am not sure if that is the position. The Minister is a legal expert. However, no matter how well qualified a Minister may be or what we say in the House, Ministers and legislators give commitments on the basis of the way they interpret the provisions. No matter what we say here, at the end of the day it will be a matter for lawyers and, ultimately, the courts to decide, define and interpret this Bill when passed. That is why I am concerned about the lack of absolute clarity in respect of its provisions. Clarification is vital.

I mentioned tradition and I now wish to refer to the dangers and perils to which people who pursue any type of activity are exposed. One could say living is a risk. It depends on how one lives one's life as to whether the risk to which one is exposed becomes more pronounced. People pursuing particular activities may increase the risk to which they may be exposed. The activities pursued by people on their properties in terms of farming methods may also increase the risk to which they and others who cross their property may be exposed, but such risk exposure is not the fault of a farmer or property owner. Consequently, we should not allow a situation develop in which we would compound the responsibility or liability of property owners in respect of injuries suffered on their property. We must be ever mindful of that.

Rights-of-way through properties have been established traditionally and others have been established legally. Notional or traditional rights-of-way exist which have not been established by law. Ordnance Survey maps, old Land Commission maps and other old maps show various walking routes, paths and Mass paths, but there is not a legally defined document which states they exist. However, they can be seen on a map. In the past when people walked or used a pony and cart to get to their destinations they used those rights-of-way. Some of those paths have been improved and are used as walk ways or as a means of access to amenities, such as monuments, holy wells, scenic woods and areas of scientific value. Even though people may not have a legal right to use such rights-of-way, they have traditionally used such routes in their daily lives and to enjoy leisure activities. Regarding right-of-way established traditionally, albeit not legally, that crosses over a farmer's property and is used by many people for various reasons, perhaps to gain access to an area at a particular time of the year, we must ensure that we do not legalise a responsibility or a liability on such a property owner in respect of injury suffered on that property. Absolute immunity from liability must be given to the landowner. The primary of a Parliament is vital at all times. We, as legislators, must ensure we represent and protect the rights of the people and do not make cumbersome and vague laws that create opportunities for lawyers, in particular, and litigant conscious people to make farmers or property owners victims of laws passed in this Parliament.

Debate adjourned.

Dáil Éireann díospóireacht - Thursday, 2 Feb 1995