Deputy Batt O'Keeffe was in possession.
Occupiers' Liability Bill, 1994: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I had been talking about the necessity for enacting legislation allowing public access to parks, lands, community schools, sports halls, swimming pools and so on, rendering them more amenable to the public so that the process of litigation which has been part and parcel of our life in recent years would be alleviated.
This Bill is welcome. Nonetheless, I should refer to a number of difficulties and anomalies I perceive within it as drafted. While the reason for the inclusion of "recreational user" is clear, it introduces a difficult concept into law, the definition of "recreational activity" being broad although limited to open air activities. Even temporarily, persons may find themselves falling within that definition by taking a recreational stroll.
It is difficult to understand why a distinction has been drawn between the types of persons who enter premises with the permission of the occupier, each person having different motives, or the distinction being drawn between those with a "recreational activity" motive and those with any other motive. A further distinction has been drawn between an ordinary "recreational user", meaning one invited by the occupier, an ordinarily resident, family member, or one with the permission of such persons for social reasons. A milkman going about his ordinary duty might for some reason go away from the normal course of his morning rounds.
On the enactment of this Bill these distinctions may appear unfair because a person entering lands with the permission of the occupier subsequently may be placed in a different position, due to the possible changed motive of the visit, or even on the basis of the initial permission he or she had received from the owner. In addition, it would appear that a person can be deemed to have a different status dependent on the joint occupiers against whom this action may rest.
Given that the entrants status depends on the lawfulness of his presence, his motive for entry and the permission he receives it is difficult to understand how that status can vary, but according to the Bill it can. If he has permission to enter land from any one occupier and his motive is not that of recreational activity, he may be a trespasser in the opinion of one of the occupiers. Where a farm is in joint ownership, a husband may invite a person onto that land, but such permission may not be granted by another joint owner. If a case were taken, this introduces a degree of uncertainty into the legal position of the entrant, which is difficult to equate with the desired aim of the Bill to rationalise the law.
Regarding the duty of care owed to trespassers and recreational users, in respect of any danger existing on premises an occupier must not injure the person or damage the property of such a person either intentionally or by acting with reckless disregard. That provision is a major change because the Law Reform Commission suggested a higher standard of gross negligence rather than reckless disregard.
The definition of danger in section 1 is that caused by the state of a premises. That is an extremely broad definition and I ask the Minister to clarify if that includes only the static condition of the premises, the state of disrepair in which the person finds the premises or if it pertains also to the use to which the premises is put. Despite the stated standard of care owed to trespassers and recreational users, the criteria given in the Bill to assist a court in determining whether there has been reckless disregard appear to incorporate a higher standard than that of reasonableness, and the Minister should consider that. A further standard of care exists with regard to any structure for use primarily by recreational users provided by an occupier who must take reasonable care to maintain it in safe condition. That is a different and probably a higher standard than owed to visitors under section 3. An occupier must ensure only that a visitor does not suffer injury or damage by reason of any danger existing in respect of premises provided for recreational users.
On open access to premises, among the circumstances a court must take into account in determining the reckless disregard of an occupier's duty towards trespassers and recreational users is the character of the premises, including the desirability of maintaining any tradition of open access to such premises. That is a general policy decision that will be extremely difficult for a court to evaluate in the circumstances of a case. Any plaintiff will find it difficult to argue against such a vargue concept and the provision may have to fall into disuse or serve to defeat a plaintiff, perhaps unfairly, on occasions.
On supervisors of minors, special provision is made for trespassers and recreational users who are minors or have a mental handicap. One circumstance to which the court shall have regard is whether a minor was accompanied by another person and the extent of that person's control and supervision. That provision may have the effect of implying a duty of care to a person on whom the liability and negligence can be fixed if that person should have had greater control or supervision of a minor or a person with a mental handicap.
One section deals with the appointment of blame and contributory negligence on the part of an entrant to premises. That section does not allow an entrant to be found wholly to blame, even where a court finds the person to be 100 per cent at fault. Will the Minister have regard to the Civil Liability Act, 1961 which sets out the difference between blame and fault? Under that Act a person can be held to be 100 per cent to blame and there does not appear to be a proper marriage between that Act and what is proposed in the Bill.
I wholeheartedly welcome the Bill as this area has remained undefined in law for a long time. That unfortunate position gave rise in recent years to many occupiers and landowners restricting access to their lands because of fear of civil liability claims arising from accidents that might occur on their premises, whether on lands or buildings. It is particularly unfortunate that many historical and archaeological sites have been inaccessible to visitors in recent years because of the understandable actions of landowners. Once the Bill is enacted we will have a firm statute and will no longer have to rely on common law provisions. I welcome the general thrust of the Bill which is exactly right in that it defines categories of people who enter property and the duty of care that devolves upon landowners and the person who enters a property, but there is a certain amount of vagueness.
I come from a constituency in which there is a great number of archaeological sites; the part of the constituency in which I live is a vast archaeological landscape. On such a landscape there are dozens of landowners and occupiers who have custody of sites of archaeological and historic interest of high significance. Naturally those sites attract many visitors. I am a farmer and I fortunately have a 7th-century high cross, a designated national monument, on my land to which there is a right of way. It attracts approximately 200 visitors annually.
I am aware the Bill goes a long way towards defining clearly the law on my, or anybody else's, responsibility who has a national monument on their land. Nevertheless, there is a certain amount of vagueness in the Bill which I would like clarified. The category of recreational visitor is the one that is most relevant in this regard. The duty of care is most diminished in terms of an occupier in this case. People like myself would consider that, having regard to the number of people who enter their land to visit an archaeological site, occupiers should not carry any liability. The State designated such sites as national or historic monuments and that devolves a certain amount of responsibility and care upon the State and, in doing so, it attracts people to them. An earthworks that may seem uninteresting will naturally attract greater interest and visitors if defined as a national monument.
While I accept the occupier should ensure that access to such monuments is free of hazards no other liability should devolve on him. Visitors may not necessarily remain within the precincts of the building, site, earthworks, etc.; they may wander around in the hope of discovering something else and may be injured by agricultural equipment left in a field. That is the usual run of things on farms. Pieces of agricultural equipment are often left lying around, not with the intention of injuring anybody, but this is often a necessary part of farming practice. It could be argued in court that it was negligence to leave such an implement or object in place and that the person was injured intentionally as a result. It is important to deal with such points on Committee Stage to ensure that all ambiguity is removed. I appeal to the Minister to take these issues on board.
I am interested in some of the proposals which the ICMSA sent to Deputies in relation to this Bill. Much of what they have said is common sense. They state that the definition of "entrant" on to land should be tightened up, instead of "visitors for recreational purposes" it should be confined to invited and uninvited entrants. Currently we have visitors, trespassers and recreational users. They argue, rightly, that interpretation of these terms can be too broad. Terms such as "invited" and "uninvited" can be more easily defined. In other words, if you invite a person on to your premises naturally you may take greater care to ensure they are not injured intentionally or by accident and that every reasonable step is taken to ensure their safety. In natural justice you have a duty to look after such people. There are also uninvited people — I do not wish to use the term "uninvited" in an unfriendly way — who want access to the countryside. People should have access to the countryside and should be able to walk over fields and gain access to rivers and lakes, for fishing or swimming purposes, or to sites of interest but they should take responsibility. In other words, the citizen ought to know that on private property or land, there may be objects which one can easily trip over. In the nature of things land must have drainage and so on and one needs to be careful and to travel on such lands under good lighing conditions. If a person is walking on long grass or undergrowth there may be hidden hazards but the person is doing this in the knowledge that these hazards may exist. The law should be definitive in stating that.
As a farmer I represent everybody who is concerned about this matter. Suddenly people may be subpoenaed or informed of an action being taken against them because somebody en route to a river, which happened to flow through their land, tripped or fell into a natural depression in the land. The Bill provides that people must take care of themselves and these matters can be argued in court if there is any doubt about it. It can be argued in court that the duty of care on the occupier was not properly discharged because a person who encountered a natural feature on the land, such as a tree stump, was injured. I hope the Bill, when enacted, will be clear about this matter.
I commenced by referring to the uncertainty which existed under the common law provisions. If the matter is not finally cleared up by this Bill the restrictions which farming organisations have advised will continue and access to areas of recreation will continue to be prohibited. At the end of the day there is not much the law can do if a farmer says: "You must not trespass here" or, "You must not enter this field". There are provisions for warnings in this Bill. If an occupier warns everybody not to step on property, regardless of whether there is a hazard, that will restrict access. For that reason we must get these matters right.
In relation to minors there is an increased responsibility and duty of care on the occupier. Children are not as responsible for their actions as adults. Nevertheless, the duty of parents or guardians towards their children must be recognised. It would be a pity if, as a result of a prank on private property, a child was injured and the occupier found liable. Some would argue that a greater liability devolved on the parent or guardian to ensure the children are warned and that reasonable steps are taken to ensure they are not allowed wander on to properties where there may be hazards. From my reading of the Bill I am not satisfied that that is clearly defined. The Bill needs to be examined closely and I shall return to this issue on Committee Stage. I ask the Minister to take note of my comments in this respect. It is accepted that children are not as responsible for their general behaviour as adults. There may be cases where the responsibility of parents and guardians can be overlooked. The point has been made that it would be unfortunate if the duty of care devolved on the occupier in the event of a person with a physical or mental handicap, regardless of age, being injured unintentionally on private property.
I welcome the Bill. I come from a constituency where a large number of my voters are owner-occupiers, mostly small farmers, where there is widespread public concern. I am expressing here the concern of my constituents who speak to me about it. There are signs all over my constituency stating: "Visitors not wanted" and "Trespassers will be prosecuted". I have also seen such notices in many areas of the archaeological landscape, which is a major part of my constituency in County Roscommon.
I hope the Minister finds my remarks constructive rather than critical. Hopefully after the enactment of the legislation these signs will be a thing of the past and visitors, trespassers, recreational users, etc., whether invited or uninvited, will be confident that their interests are protected to the maximum extent possible.
Occupiers' liability has been a thorny issue for many years. Shortly after I was elected to my county council ten years ago I raised this issue. If I remember correctly, the relevant Department said that the matter was being examined by the Law Reform Commission and that legislation would be introduced fairly soon. I commend the Minister for introducing this legislation and pursuing the reports which underlined the difficulty in formulating legislation which met the constitutional and other requirements in this regard. I also commend him for being so accessible to Deputies who had queries about the Bill. On occasion I may have pestered him too much.
Occupiers' liability is a major issue in areas which depend on the tourism industry and it is one which needs to be dealt with urgently. I said recently at a meeting that I welcomed the Bill because it addressed some of the major problems in this area and clarified some of the grey areas. It was pointed out to me by some of the people present at the meeting that the Bill would make things worse. I do not think the Bill will have this effect. Rather it will establish a framework within which the problem can be adequately addressed. Nevertheless there is a need for some amendments, and I am sure the Minister will look favourably on these.
It is difficult to legislate on the role of parents and guardians who have responsibility for young people. After 20 years experience as a teacher, I am aware of the conflicts and difficulties which can arise for parents and guardians. Nevertheless the State must put the greatest onus possible on the parent or guardian to look after the young person, even if they are not with them. They should know where the young person is and ensure that they do not get into any trouble. The onus on the parent or guardian should be much greater than the onus on the farmer or landowner who would have no reason to know where the young person was and could not reasonably be expected to know that he or she was on his property.
The Minister said that the main aims of the Bill was to increase the protection for occupiers, which everyone would like to see, and to ensure the use of land for recreational purposes. This is very important as many people depend on access to land for their livelihoods. In this context it is appropriate to pay tribute to farmers, occupiers and landowners for the level of access they gave recreational users to their land at a time when they were open to claims being made against them. This tradition needs to be preserved and protected under the legislation. I would go so far as to say that the legislation will ultimately decide the extent to which that very good tradition survives.
The entrants allowed access to land and the duty of care owed to them is a very vexed question. This basically comes down to legal definitions. While the Minister has a substantial advantage in that he has legal training in this area, many eminent legal people have offered differing opinions on the effects of the legislation. This gives rise to concerns by farmers and landowners and undermines the usefulness of the legislation, particularly in terms of encouraging occupiers to allow the use of their land for recreational purposes. Difficulties may well arise about the interpretation of terms such as "damage", "danger" and "the level of injury".
I am particularly concerned about section 7 which deals with agricultural contractors and agricultural machinery in temporary storage. It seems grossly unreasonable to expect a farmer to make provision for people who may be on his land without his knowledge when putting farm machinery into temporary storage. Hopefully the negative provision which proposes to make hired equipment and hire contractors his responsibility will be amended. The Minister should look favourably on any amendments to this section which places an added onus on an occupier. Contractors should have the primary responsibility for their machinery.
On the duty owed to trespassers, the Bill imposes an undue obligation on the landowner. People to whom I have spoken have said that the only duty owed to the trespasser is to ensure that he is not attacked or intentionally put in danger, that if he gets himself into difficulties it should not be the responsibility of the landowner. It has also been said that claims for minor injuries will place a very substantial financial burden on the farmer or landowner who will have to pay not only the amount awarded but also the legal costs. Some means should be devised as to ensure that these claims are not made.
The ICMSA has written to me regarding its concerns about the Bill which, it states, has created even more confusion and uncertainty for landowners. That was not the Minister's intention and I am sure that will not be the outcome. The association added that under the Bill a landowner has a duty towards two categories of entrant, the visitor and the trespasser, including recreational users — the duty of visitors is a duty of carefulness while the duty to trespassers is not to injure intentionally. It says it has no problem with either of these categories and that the difficulty has to do with the various types of entrants who can claim visitor status under the Bill. Regardless of what the Minister does, it is likely that claims will be made and it will be very difficult to know in advance of a court hearing exactly where people stand under the Bill. It is important that every attempt is made to roll the dice in favour of the occupiers so as to encourage them to let people use their land.
The ICMSA stated that the definition of an entrant whose presence on premises becomes unlawful after entry and who is taking reasonable steps to leave suggests that visitor status, and the accompanying special duty of care, can apply to people who are uninvited. This would create great difficulties for landowners. This ambiguity must be addressed and, if possible, removed.
My area of north Clare was renowned for the way in which people allowed access to their lands. The Burren landscape of clints and grykes, because of its physical nature, and not because of any fault on the part of the occupiers of the lands, presents some risks for visitors. Because people are now inclined to claim damages which would not have been heard of 20 or even ten years ago, there is a great deal of concern among landowners in the area. The Burren is a popular tourist destination and it is important that people have access to it. Unfortunately, because of a difficulty regarding the Burren National Park — where the State owns approximately 3,000 acres on which it is proposed to build a visitors centre — local landowners have decided not to allow access to their property. That is a contentious and separate issue and, regardless of the success of this Bill, is one which must be addressed under a separate heading.
I urge the Minister to carefully consider the amendments which Deputy Woods will put down. I commend the Minister on introducing the Bill and hope the finished article meets the needs and requirements on all sides.
The legislation will require amendment. There are many national monuments in my constituency which attract tourists and visitors during the summer season. We must include a provision in the legislation that will exempt the owners of property on which such artefacts are located from claims for damages from people who enter the property, without invitation, and injure themselves.
The question of duty to owners and occupiers of land and property is not dealt with in the Bill. If anybody has a right to safeguard his or her property, surely it must be the registered owner and occupier. In no circumstances could I support legislation that would not copperfasten a safety clause for such people. We all know it is easy for uninvited guests to gain access to property and injure themselves — perhaps even pretend to injure themselves — and for the property owner to be presented with an exorbitant claim for damages. We are codding ourselves if we do not safeguard property owners and landowners — the backbone of society — against such claims. Have they any right to exemption from claims for damages — in many cases superfluous damages — from uninvited guests who gain access to their property?
If people enter property uninvited they should do so at their own risk and minors should be under the control of parents or guardians. Many of the castles in my constituency are in poor repair with jagged walls and so on and regardless of how careful the owners or occupiers of the lands surrounding such castles are, they cannot guarantee safety to those who enter their lands to visit such sites. This Bill must provide a safety valve for land and property owners so that irresponsible people entering their lands cannot claim damages against them. If people enter property in the middle of the night without invitation and are injured, can they claim damages against the owner? The Minister must address this question before passing the Bill. Entrants to land should be classified as "invited" or "non-invited". The present definition of entrants as visitors, trespassers and recreational users is too broad and could be subject to abuse and confusion. Invited entrants should be classified as those invited by the occupier or a person acting on his or her behalf. All other entrants should be classified as "non-invited". Surely uninvited guests should not be permitted to enter a property unless the owner invites them.
Under this Bill registered owners and occupiers of property should be guaranteed exemption from injuries sustained by people who illegally enter their property or lands. Also, the occupier should be defined as the registered beneficiary exercising control over the property. The Bill states that minors can enter property ad lib and that the owner is responsible for them even though he or she may be miles away on the day they enter the property. For example, there are many national monuments in the Goleen area, such as Dunmanus Castle, the Three Castle Head, Marconi Tower in Crookhaven and the Mizen Head signal station. There are castles and monuments all over the south-western seaboard and the occupiers of the lands surrounding them could be in Cork, approximately 80 miles away, when a person enters the property. Although the landowner does not own the national monument, he will be held responsible if somebody is injured while traversing his land to visit it. This legislation will be fraught with danger for owners and occupiers of property if it does not contain a clause exempting them from responsibility for people who enter their lands in order to visit national monuments.
I accept that persons of an immature age cannot be treated in the same way as mature adults. However, the responsibility for them should rest with their parents or guardians. The same should apply to a person with a mental handicap. If the guardians or parents of children do not keep them under control and know where they are going, surely it should not be the responsibility of an owner or occupier of land to do so. We must cut our cloth according to our measure and insist on fair play for everybody. When an uninvited guest enters a property that guest, no matter what age, should not be the responsibility of the owner or legal occupier of that property.
Under the Bill certain entrants to a property are given visitor status as of right. Such entrants include members of the Garda, certain officers of the Department of Agriculture, Food and Forestry, members of the Defence Forces and, in certain circumstances, officials of the ESB, an Bord Gáis, persons with a right of way etc. All such persons should be regarded as uninvited with the occupier having a duty not to injure them intentionally. However, if they are injured on his property they should be covered by the State's public liability policies.
The Bill seeks to amend and extend the law on the liability of occupiers of premises, including land. The word "extend" should be deleted or defined to avoid the impression of increasing occupiers liability under the law. I hope the Minister will do this on Committee Stage.
Farmers and all land owners are open to be sued for damages resulting from accidents occurring to any person on their property. The legal liabilities of land owners are so great that in 1991 farmers were advised by the farm organisation to suspend public access to their lands in so far as was practicable until satisfactory changes were made to the legislation governing occupiers' liability. The intention is not to have legislation which prevents entry on to farmland but to lessen the liability of land owners. We must insist that the minimum liability apply to land and property owners when uninvited guests enter their property.
A commitment was obtained in January 1992 from the Taoiseach at the time. Mr. Charles Haughey, that the occupiers' liability legislation would be reformed. This commitment was repeated by Deputy Reynolds when he was Taoiseach. However, the present legislation does not meet the needs of the farm organisations. I advise the Minister to take steps to meet the majority of the demands of the farm organisations because they will be held largely responsible following the passing of this Bill. As the owner of a small holding in the constituency of Cork South-West I know too well the dangers of visitors entering property and turning an ankle, breaking a leg, falling over a fence, injuring a hand, etc. and subsequently claiming damages such that the unfortunate farmer has to sell his place in order to pay.
The Minister inherited this legislation from his predecessors. However, I hope he will streamline it to ensure that all sections of the community are safeguarded, particularly land and property owners. The report of the Law Reform Commission is, as far as I can judge, unsatisfactory in that it proposes a very broad definition of visitors — virtually everyone would qualify. The subsequent publication of the Bill on occupiers' liability last November was a further disappointment because it also failed to clearly define the word "visitor". Since its publication, a new Government has been formed and has committed itself to a limited review of the Bill. This is not adequate to safeguard the rights of the people concerned. It would be a major mistake to pass this legislation without significant amendment to guarantee immunity for occupiers of property against claims by irresponsible people who enter their lands without permission.
The issue of occupiers' liability is of great concern not only to farmers but to all who enjoy outdoor life. We must act sensibly and decisively on this sensitive issue by making the necessary modifications to the Bill. Under this Bill a land owner will have a duty to two categories of entrant, the visitor, including a recreational user, and trespasser. The duty to visitors will be one of care and to trespassers not to injure them intentionally. We must give a guarantee that no responsibility will be placed on those who are doing their best to maintain their holdings and property but who will be wide open to claims by intruders who are uninvited guests.
The definitions of "recreational activity" and "recreational user" which include a reference to the National Monuments Act, 1930 establish the right to enter land without the owner's permission to engage in pursuits which may not be condoned by the owner. They also relieve the Government of all responsibility for the upkeep and repair of any property which has been declared a national monument and which may be in a dangerous condition and place it instead on the land owner, who will also be held responsible for any incidents which may occur. It is the duty of the Government to accept responsibility if any visitor is injured while visiting a national monument; farmers and land owners should not be left wide open to claims by uninvited guests.
I hope the Minister will rectify the anomalies in this legislation. I have great faith in him and know that he will do this, if at all possible, and will ensure that nothing drastic is done without first meeting the requirements and the desires of the farming organisations which speak on behalf of landowners.
I appreciate the opportunity to voice an opinion on this Bill, which I welcome. It has many admirable aspects and some not so admirable.
The main purpose of the Bill is to clarify the law on occupiers' liability and facilitate the use of land for recreational activities. I do not intend to engage in repetition as the various categories of entrant have been outlined. It has been mentioned that landowners have a duty of care to entrants. In this respect I am not sure if the definition of a "minor" is in line with the GAA's interpretation, which is a person under 18 years of age, or whether it means a person aged 13 or 14. If a minor is injured responsibility will be placed on the occupier, even though in most cases the minor is not invited onto the property. More responsibility should be placed on the parents or guardians. I fail to understand how, if a minor or anyone else enters land uninvited, the owner should be held responsible for their welfare.
Section 5 states that an occupier may by agreement or notice restrict, modify or exclude his or her duty of care to entrants. It also states that where an occupier gives a warning this may be sufficient to absolve him from liability. This matter needs to be clarified and the Bill should state specifically that the occupier will not be held liable.
Section 5 also states that any restriction, modification or exclusion of an occupier's duty shall not be binding on the entrant unless certain conditions are met. These two provisions show that the Bill is weighted against the occupier.
Section 6 will apply to contracts entered into before the commencement of this Bill as well as to those entered into after such commencement. Which contracts entered into before the commencement of this Bill will be covered? What is the relevant date?
Section 9 states that where an occupier fails, refuses or neglects to carry out a certain duty and an entrant or property of the entrant suffers an injury or damage, that injury or damage will be deemed in the eyes of the law to be attributable to a wrong and the occupier will be held responsible. If, for instance, in the autumn a farmer leaves his combine harvester in the fields at night and entrants, be they minors or otherwise, are seriously injured while interfering with it, under this section the farmer will be held responsible for their welfare. This is most regrettable and unfair.
Similarly, anyone familiar with farms will know that gateways are not always wide enough for the passage of modern machinery. When many gateways were being built, the horse and cart was possibly the widest mode of transport going through those gateways. To widen openings a few inches gates are often removed by farmers and left against a nearby wall or ditch. If children on the way home from school — I am thinking of 12 and 13 years olds — play around a gate left against a wall or ditch and it falls on them causing injuries, by my interpretation of this section of the Bill the occupier would be liable because he or she did not take due care. In normal circumstances, however, the gate would not be resting against a wall or ditch but would be in its rightful position. That is another example of how this Bill appears to be weighted against the occupier.
Under section 9 (2), if an entrant to property or lands fails to take due care and, as a result, is injured, in certain circumstances the responsibility will be jointly shared by the entrant and the occupier. That does not make much sense but perhaps the Minister will clarify that when he concludes the debate. An uninvited entrant to a property should not be covered in regard to liability. The occupier should not have to foot the bill if an uninvited entrant is injured on his or her property, or lands.
On many farms, boundary and other fences are not always impregnable. If a young bull breaks into a field with heifers — we all know that a few strands of barbed wire would not prevent that happening — and gores an entrant, the occupier is responsible, despite the fact that he or she is not even aware of the incident. That is my interpretation of the Bill. In such cases the occupier should be afforded more protection against such claims.
People using lands for recreational purposes are entitled to be on the property whether they are invited or otherwise but they have an obligation to take reasonable care for their own safety. The occupier should not be held responsible for any injury suffered by them. I ask the Minister to take note of some of the points I made. I would like to see certain changes in the Bill which would provide that greater protection.
I thank all Deputies who participated in the debate on this Bill. I had every expectation that the debate would be stimulating and that there would be some robust interventions. In that, at least, I was not disappointed.
The Bill does not run to an enormous number of pages but shortness of length is not always to be equated with simplicity of content. Some of the elements in the Bill are quite complex and this debate, in teasing out some of the implications of its provisions, did justice to that complexity. I welcome the fact that the principle underlying the Bill was generally endorsed by Members on all sides although I appreciate that the endorsement was not unqualified and that various points of difficulty will be raised on Committee Stage.
I do not need to remind Deputies that the Bill had its genesis in the growing perception, particularly among the farming community, that in an increasingly litigious culture, traditional access to land for recreational purposes could not longer be tolerated as heretofore. The uncertainty surrounding legal liability in the event of accidents befalling entrants to land has been, in large part, responsible for much of the fear which this issue generates. I am not aware, however, of any case, in so far as farmers are concerned, where they have been sued successfully by trespassers for injuries received on their lands. Indeed, the fact that Deputy Keogh had to reach back to the case of Purtill in the 1960s and the case of McNamara in the 1970s to provide the appropriate illustration for her point in relation to child trespassers is in itself very telling. This lack of success in so far as trespassers are concerned is under a regime which can be seen as more favourable to this category of entrant than the one which I am now introducing. There is every reason, therefore, to be confident that farmers, and other occupiers, will continue to be safe from vexatious claims.
It must be accepted that the interpretation of the legislation now being discussed will ultimately fall to the courts, and I am happy that the principles it contains will safeguard occupiers against unmeritorious claims. However, at the end of the day, it will be one or two cases, tested before the courts, which will validate that opinion. I strongly urge occupiers to use the legislation as a protection and not to be afraid to rely on its provisions if they find themselves the subject of a claim for which they deny liability. Deputy Treacy and other Deputies appeared to argue that the occupiers of certain facilities should effectively be granted immunity from suit in relation to personal injuries caused to entrants who were making use of those facilities. Deputy Boylan also touched upon this point. However, while it may not be within the scope of any legislation to say that particular actions cannot be brought before the courts, it is within the remit of legislation to provide the safeguards which will protect innocent parties to a dispute and I am satisfied that the Bill contains these safeguards.
I draw the attention of Deputies to the fact that, both in Scotland and in Northern Ireland, which in many ways have community structures similar to our own, legislation is in place which, on the face of it, would appear to be more liberal than what is proposed here in relation to trespassers. In Scotland, occupiers have a duty to take such care as is reasonable in the circumstances of the case to see that entrants do not suffer injury or damage by reason of any dangers. In Northern Ireland, although there are some differences of emphasis, the duty is broadly similar. In the Bill, the emphasis is on not acting with reckless disregard and that is a much more limited duty.
Deputy Woods rightly acknowledged that the Bill is far-reaching in that it has implications not only for landowners but for the community as a whole. Deputy Kirk also emphasised this point. These acknowledgments are useful and timely because, very often, these implications can be lost sight of and the focus tends to be on the very narrow one of access to land. While the considerations which such access raise are important, they are not the whole story and we need to be aware of the wider dimension.
I regret that I cannot satisfy Deputy Woods's request for a clear and simple list of examples where under the old law liability would be imposed on an occupier, but under the new will not. The issue of liability is one for the courts to determine and it might be misleading if I were to attempt to play judge in the way in which Deputy Woods invited me. However under the new regime, occupiers will no longer owe a duty of care, which is based on negligence, to trespassers. The duty they may have had to some recreational users in the past has gone. That is the real improvement which the Bill introduces and one which should attract general support. Deputy Kitt was one of the Deputies who inquired as to the difference this legislation will make in regard to liability and the clear distinction which is drawn in the Bill between trespassers, on the one hand, and visitors on the other is an example of just such a difference from the existing regime.
I am not sure what the Deputy has in mind when he claims that the Bill imposes a level of liability on the Office of Public Works which is more onerous than at present. In many cases, the effect of the Bill will be quite the contrary, and it is only where the entrant is a paying visitor that a duty of care will arise. Otherwise, visitors to national monuments will be classed as recreational users and will be owed the lesser duty appropriate to such entrants. Deputies de Valera and Leonard also adverted to the situation where these monuments are in private ownership. Again, provided no charge is imposed for viewing these monuments, the lesser duty will apply. This is a step in the direction of achieving the necessary balance between the rights of land owners and of the wider public in terms of our national heritage.
In this context, Deputy Ó Cuív and other Deputies, including Deputy Browne, inquired about the position where a national monument on private land is in a state of disrepair. It will be open to the occupier in this instance to discharge the duty not to act with reckless disregard by putting up a warning notice in the appropriate location. Where a building is involved, a sign proximate to that building could be just such a location.
Many Deputies, including Deputies Crawford, Finucane and Penrose alluded to the role which tourism plays in our economy. Deputy Noel Treacy referred to its importance in underpinning the buoyancy of economic growth here. There is no doubt that cultural tourism, in particular, is assuming ever greater importance and the provisions in this Bill, especially those concerning recreational use, will facilitate developments in this area.
I share Deputy Woods's concern about the rising costs of insurance and the impact this has on individuals within the community. However, this is not an insurance Bill and the suggestions put forward for a no-fault based system of compensation, based on a levy to be imposed on insurance companies, are well beyond its scope. Nonetheless, I would hope that by introducing clear principles into the law on occupiers' liability the Bill will have the effect of steadying, if not actually reducing, costs in this area.
The Deputy expressed some anxiety about the utility of the provisions in section 5 relating to warnings and notices. Deputy Connaughton also had a number of queries on this matter. First, not every warning need be in the form of a large sign or hoarding. Verbal warnings by an occupier of a particular danger would be covered by section 5 (5). Similarly, the provisions in section 5 (2) are most likely to be of relevance in a contractual situation. We are talking here about visitors who, for the most part, will enter on premises by recognised routes. In many cases, they will be paying customers and each time we pay for a cinema ticket, an admission fee to a visitor centre or a race-meeting we are entering into a contractual arrangement. The provision, therefore, and the protection which it offers to occupiers is wider than it may first appear.
Deputy Woods expressed puzzlement concerning the reference to the Bill in the Government programme. However, the commitment in that programme is quite straightforward. It states that, in order to ensure public access to land, the Occupiers' Liability Bill will be reviewed in the context of further careful examination of the legal and constitutional position as it relates to minors. I should stress that there is no implication here that this Bill will be amended in any way to increase rights of access to private property without the landowner's permission. The commitment simply recognises the concern to which the provisions in the Bill relating to minors have given rise. I am giving consideration to the matter and the decisions made will take into account, as far as possible, statements made by Deputies in this debate and various representations which I have received from interest groups. They will be carefully considered by me and I fully acknowledge the depth of feeling which they represent. In this context, I note the comments of Deputies de Valera and Connaughton about the genuine concern of many occupiers about child trespassers, particularly where children are on premises in the absence of adult supervision.
Deputy Keogh inquired as to the relationship between section 2 and section 4 and expressed concern that the latter might undermine the former in so far as the protection of occupiers is concerned. The basic purpose of section 2 is to ensure that future actions founded upon occupiers' liability will be dealt with according to the statutory principles provided for in this Bill, not according to the common law principles which now govern this area of the law.
Section 4 makes it plain that occupiers no longer have a duty to trespassers, or indeed to recreational users, which is based on negligence. Their duty can be reduced to two simple propositions; not to injure such individuals intentionally and not to act with reckless disregard for them. Subsection (2) itemises those factors, which are not exhaustive and which a court must take into account if an occupier is to be judged as having acted with reckless disregard. In other words, the various factors specified are intended to provide further protection for the occupier; they are not intended to make it easy for a finding of reckless disregard to be reached. For example, it is clear under the subsection that before any duty can be said to arise, an occupier must know, or have reasonable grounds for believing that a danger exists, and he or she will owe a duty to a trespasser or recreation user in respect of that danger only if the danger is one against which, in all the circumstances, that occupier might reasonably be expected to offer protection.
Paragraphs (e) and (f) will have some bearing in determining this matter. Paragraph (e) aims to balance on the one hand the burden on the occupier of eliminating the danger or protecting the recreational use or trespasser and on the other the degree of the danger. Paragraph (f) introduces a general social criterion into the equation, in that, regard must also be had to the character of the premises and, where the premises are likely to be used for recreational activity, the desirability of maintaining the tradition of open access to those premises for such activities. I am aware from comments made both in this House and outside, that the structure of this subsection may not be as clear as it could be. I will be focusing again on this matter and I would envisage the possibility of some amendment on Committee Stage.
Deputy Keogh also made the comment that the language of section 3, particularly that relating to the imposition of a duty to take reasonable care, was vague and ill-defined. This duty, however, is a well-recognised one in tort law where it is a shorthand that implies a wide range of other connecting concepts. It is a term with which both practitioners and judges are fully conversant and I do not think that it will present any real difficulties of interpretation. Deputy Keogh highlighted a number of areas where she will be tabling amendments on Committee Stage. I do not propose to address those issues now but some of the points she raised are certainly ones which I shall be looking at with close attention.
Deputy O'Dea was somewhat unhappy with a few of the definitions contained in the Bill, notably that of visitor and trespasser. Deputy Penrose, and others, also alluded to certain possibilities for re-definition in this area. I will look again at this matter and it may be possible to make the relevant definitions a little more precise. Deputy O'Dea was also one of the first to stress that responsibility for the welfare of minors should rest with parents. Other Deputies also raised this matter subsequently, among them Deputies Connaughton, Ó Cuív and Browne. It is true that parents have a primary duty to oversee the welfare of their children. It is for this reason that the law allows liability to a child who is injured to be shared between an occupier and a parent. However, occupiers cannot be wholly absolved from responsibility in this area and, where they are at fault, it would be unjust to exempt them from liability.
Deputy Dukes was sceptical about the utility of the recreational user definition in the Bill and seemed to think that the Law Reform Commission's recommendations were somehow being subverted by it. The point about the definition is that many people who enter land to engage in recreational pursuits do so with the permission of the occupier, in other words, they are permitted entrants. Unless these entrants are to be accorded visitor status — I do not think Deputy Dukes had that in mind — some specific provision had to be made in the Bill to address this matter. The Bill as introduced takes the right approach and provides the appropriate certainty for occupiers and entrants alike.
Throughout the debate, there has been much talk of a "compensation culture" and the problems which this poses for occupiers and landowners. Deputy Ferris was one of the very few Deputies who acknowledged that the ownership of property carries with it responsibility to take reasonable precautions for the safety of those who enter that property. While we rightly criticise those who manipulate the system to acquire compensation to which they are not entitled, we should not lose sight of the fact that acts or omissions by occupiers can give rise to serious injury and that the individual men, women and children who suffer such injury can be fully justified in seeking compensation. Furthermore, it is not the State which should be liable to pay such compensation, as some Deputies on the Opposition benches seemed to want but the person responsible for the injury. Some Deputies, who, said people have to take responsibility for their own safety — and I have no difficulty in accepting that proposition — also suggested that occupiers should be able to transfer their burden of responsibility to the State if, by their acts, they cause injury to another, I am not sure this position is very logical.
Many Deputies also seemed to ignore the Safety, Health and Welfare at Work Act, 1989, which requires every employer and self-employed person, including farmers, to prepare a safety statement which is effectively a programme for managing safety and health in the workplace, which includes the farm. Indeed, farming has been identified as a high risk occupation and, for that reason, it has been the focus of specific attention by the Health and Safety Authority which makes available a very useful information pack designed to help reduce accidents on the farm. Particular guidance is offered on preventing accidents to children on farms.
The contributions of many Deputies might be interpreted as giving a rather dangerous message, to those who have a responsibility for maintaining a safe working environment. This House cannot, and should not, be seen to condone working practices which are negligent and slipshod and a source of danger, not just to those who happen to be on premises — in whatever capacity — but also to occupiers and to their families. People responsible for any working environment have a duty, to themselves and to others, to take whatever steps are practicable to maintain it in a safe condition. If they take such steps, not only is it likely that fewer accidents will result but, even if accidents occur, occupiers will be in a strong position to argue that no liability attaches to them.
On introducing this Bill, I indicated that one of its purposes was to strike a balance between a wide range of competing interests. I regret that the ensuing debate did not attempt to address the balance the Bill seeks to create. The law exists to protect both the occupier and the entrant and provides a framework within which disputes between the two can be resolved. However, we do not advance our reputation as legislators if we pretend that individuals can be ring-fenced so that the law does not apply to their action or inaction.
I am quite happy with the balance in the Bill between the interests of occupiers, on the one hand, and entrants on the other. However, I am not blind to the fact that the Bill may need improvement in certain areas and I look forward to discussing the matter in more detail with Deputies on Committee Stage. As Deputy Upton said, it is important that the technical aspects of the Bill are right and I am confident that, following our deliberations, Deputies on all sides of the House will have reason to be pleased with the Bill in its final shape.
Question put and agreed to.