Seanad Éireann díospóireacht -
Wednesday, 4 Nov 1992

Vol. 134 No. 9

Land Owners' Liability: Motion.

Mr. Neville

I move:

That Seanad Éireann condemns the Government for the failure to amend the law in relation to the liability of farmers and other property and land owners for all accidents occurring on their property even where the injured party is trespassing.

I am amazed the Government did not take the opportunity to amend legislation in this area during the lifetime of the last Dáil and the current Seanad. It has been a high priority with all the farming organisations, and with individual farmers, who are extremely concerned about their liability for people coming on to their farms.

Currently, farmers are liable for all accidents occurring on their lands even if the person who has the accident, and is making a claim, is uninvited or is trespassing. This is totally unacceptable and should be changed. We are amazed that nothing has been done about this problem and we are asking this House to condemn the Government for their failure to introduce such legislation. Farmers and property holders should not be asked to take the legal and financial risks involved. The situation should be regularised.

We have a long history of allowing sporting and recreational events to take place on farms — hunting, walking, etc. It would be a pity if these activities were curtailed, but we are facing the curtailment of opportunities for sporting activities on the land of Ireland due to the failure of the Government to deal with the problem.

Many farmers have expressed their concern at the present ludicrous situation. There is a high level of goodwill, traditionally, between the farming community and the various sporting organisations. It is a tradition going back centuries that our lands are open for anybody to enjoy for recreational or sporting activity. It is a pity this is now being put under threat; it is a pity the Government did not head-off this situation and introduce legislation to rectify it.

We are undergoing the biggest crisis in unemployment in the life of the State and we are trying to promote tourism as one way of creating jobs. We are also asking the farmers to develop agri-tourism and we are inviting the tourists to our beautiful land to enjoy the scenery, to climb our mountains, see our rivers etc. This will be put in jeopardy if the farmers decide — and they must do eventually — that they can no longer tolerate people coming onto their lands because of the situation prevailing in regard to liability.

We on this side of the House accept that the occupier owes it to a person invited on to a property to take reasonable care to protect that person. There should be proper insurance to cover that. However, we do not accept that they should have responsibility for people who come on their land uninvited or who trespass. I am amazed the law on this matter has not been changed.

Access to farmland is unrestricted. It will be very hard to control the situation even if the farming organisations, as they have already suggested, advise farmers to stop people from coming onto their land. It would be very difficult to implement such a policy and it would have a marginal effect on the problem. It is necessary for the Government to tackle this and change the law to accommodate the situation. Farmers are owed this by the Government; it is a pity it was not done during the lifetime of this Government.

There has been a dramatic increase in the level of personal injury claims and we are developing a mentality which is almost making an industry of litigation. Some local authorities are all too well aware of the burden the level of claims for personal injuries places on them. It is generally accepted that many of these are fraudulent to some extent but that is hard to prove. The farming community is afraid this approach will spread to people who go on land and that people will specifically go on farms and fake injuries in order to make claims. We accept there should be adequate checks and balances in the insurance system to look into these claims but the insurers tell us of the difficulties they experience in trying to ensure that all claims paid are genuine.

The law in this area is still governed by common law precedent, as established by judicial decisions handed down in court cases. In the UK and Northern Ireland the situation has been updated. They have taken care of the problem and regularised the situation by statute law, namely, The Occupiers' Liability Acts of 1957 and 1984. It is 35 years since they first tackled this problem. A farmer in England, Wales or Northern Ireland has available to him a clear legal statement of his rights, obligations and potential liability towards authorised visitors and, to a lesser extent, towards trespassers.

The UK legislation apportions a common duty of care on a property owner, or on a farmer, towards all visitors on the land. This is a duty to take such care as in all the circumstances of the case is reasonable, to see that the visitor will be reasonably safe while on the property for the purposes for which he is invited or permitted to be on the farm or other property.

There is a much more limited duty of care which UK landowners owe to trespassers. It only arises in respect of a risk which is known to the landowner, who also has reasonable grounds to believe trespassers stray into that area. He must also know the risk is one against which he may be reasonably expected to offer the trespasser some protection. The law is very tight in the UK with regard to this. The limited obligation towards trespassers will be generally satisfied if sufficient warning signs are used to discourage such persons from incurring the risk in question. In Ireland a sign indicating a hazard may lessen liability but it does not remove it.

In the absence of modern statute law on landowners' liability in the Republic of Ireland, the old common law categories still apply. Like any employer, farmers are required to take reasonable care to provide for the safety of their employees. In the case of invitees, that is, people who are on the farm with the permission or consent of the farmer or who visit a farmer, it is the duty of the farmer to protect them from unusual dangers which they would not expect to find. With regard to people a farmer allows onto land such as for hunting, shooting, fishing and so on, since they are getting free access to land, they must take the land as they find it. The only duty a farmer has is to prevent injuries from hidden dangers on the land.

Trespassers present the principal problem areas in which the law requires updating, and it is to this area our motion refers. The position regarding trespassers at present is quite unclear but there have been cases decided against property owners especially where the injured trespassers were children. The cases were mainly in the area of public utilities and there have been some claims against the ESB in this respect. It is accepted that the same legal requirement and the same legal approach applies to the farmers as it does to other property owners.

Another category exists under common law, that of people holding rights to a farmer's land. Although they do not own the land, other persons may own certain rights over land, not through licence given by the farmer but because such rights were retained by them when the land was originally sold. This often causes difficulties. I would like the Minister to comment on the responsibilities of people who have rights-of-way over land, and on the liability of the farmer for accidents occurring where people have a right-of-way over his land. The Minister will appreciate the concern farmers have in this area, because it is a feature of Irish farming that people have rights to pass over property. We see that every day in rural Ireland.

I want to express my concern and disappointment that although this issue has been raised by the farming organisations for several years, it has not been tackled by the Government. I ask the House to agree with our motion and condemn the Government for their failure to amend the law in this area.

Mrs. Doyle

I have pleasure in seconding the motion.

In relation to the amendment that will, no doubt, shortly be proposed from the Government side, that the matter has been referred to the Law Reform Commission, at the outset, I would remind the House that on 22 January last the Taoiseach — as he is for a little while at any rate — undertook that: "during the life of the present Government, legislation would be introduced to reform the law relating to liability for personal injury claims against farmers". Those were the words of Deputy Albert Reynolds, the Taoiseach, on 22 January this year.

I accept that the Minister may not be in a position to respond specifically at this time, as the Law Reform Commission is considering the matter. I would remind the Government side, however, that the Taoiseach had promised that, during the lifetime of this Government, the law would be reformed. I would like a specific answer to that.

When I requested my colleagues to table this motion I was not aware it would be as timely as it is, on the eve of the collapse of this Dáil. I would like to know if the Taoiseach, in the 24 hours that are left, will honour the promise he gave to all concerned on 22 January last.

Mr. Fitzgerald

It is not over yet.

Mrs. Doyle

This is a very difficult area because there is no written law governing the responsibilities and liabilities of land and property owners. The law is continually being developed by the courts and came into sharp focus in the McNamara v. ESB case reported in 1975. There were many years of concern for all property and land owners, not just farmers but for the State as well — the Office of Public Works in relation to national monuments, and for farmers who had national monuments on their land and all the sports and game organisations who enjoyed free access to farmland for many years. The tourist industry was also very concerned. There is a huge body of people very concerned about the present legal situation.

Last year the law, in terms of case precedent, took a turn for the better in relation to the case that caused so much concern among the farming community when two sportsmen, shooters, were injured, one a member of a game club and the other not. The details of that case will be well known to the Government side. There was a very sensible judgment, if I may be so bold to say so, in the High Court last year which I hope to some extent would assuage the fears that have arisen in rural communities and among all property and land owners since the McNamara v. ESB case in 1975.

Farmers should not be liable for accidents they could not foresee taking place on their land. No property owner should be liable for accidents he cannot foresee. At present the law is unjust. We need a balance. There is no doubt about it. We are not asking that property owners should be able to renege on legitimate responsibilities in this area. We are just looking for a balance in the law, which is a very reasonable request.

In recent cases the courts have applied standard duties of care on property owners, irrespective of whether the persons were invitees of the property owner or trespassers. It is in the area of trespassers that most concern actually has arisen.

I am sure the Minister will appreciate the concerns among all property and land owners in this area. It has been well highlighted. The farm organisations have been particularly vigilant and can be commended for their work in this area, as can the tourist industry, the country's sports associations — the Federation of Irish Field Sports, the National Association of Regional Game Councils — and all the bodies that have an interest in ensuring that those who enjoy country field sports of every kind, including walking and picnicking, continue to have access to our beautiful countryside, that our tourists continue to have access to our beautiful countryside and that farmers and other property owners do not feel they are put under such risk of future claims and unnecessary demands upon them that they have to bar access to their land in the circumstances that have been detailed.

The county councils have major problems in this area as well. The Irish Public Bodies Mutual Insurance Company looks after county councils but the State is not covered by insurance, it just pays up.

Wexford County Council alone has a litany of difficulties. We have a lovely old disused lime kiln in the north of our county which the council had restored and fenced. An area around it was to be left as an open green area for the local community. A child climbed up the new fence, fell and broke a leg. The council was considered in court to have provided an allurement and we had to pay up. Now that lovely area which was an open park for the community, has to be closed. Another case in Wexford involved a motorist who drove off a pier owned by the county council at 2 a.m. and was drowned. Damages were awarded against the council for insufficient sign-posting. We have the example of a boy diving off the end of a pier and hitting his head on a submerged rock. There is a claim against Wexford County Council for that because he dived off the council pier.

All local authorities and State bodies are open to this type of claim, and the Department of Energy and the ESB in particular. We have litanies of claims relating to tripping on footpaths, potholes, kerbs and gulleys, many legitimate, where the county council have not or could not fill potholes and restore roads to a reasonable condition. I contend that many of these are vexatious claims, part of the industry of litigation that is growing up in this area, an area that needs to be nailed on the head very quickly.

This is an area the farming community are having great difficulty with now. They feel it is only a matter of time before the mentality that is now being applied to the State sector, in terms of claim after claim being lodged, will be applied to land owners as well and that this leaves them open to this type of unnecessary risk.

I would like confirmation from the Minister that the Attorney General's Office now views as urgent reform of the law in this area. When the matter was initially brought to the Government, I understand the Attorney General did not consider it an urgent matter. We need confirmation that this present Government consider this matter urgent and that the incoming Government will very shortly receive from the Law Reform Commission its recommendations for the reform of the law in this area. I hope that whichever combination of parties are in power — would that it were a Fine Gael Government, but let us be realistic — they will give priority to the legislation that is so badly needed from the property owners' and the land owners' point of view.

The Minister is familiar with the difficulties faced by the Office of Public Works, the State body charged with responsibility for our monuments and national parks, in relation to claims. There was the saga of Donegal castle, which is a ruin. In the mid-eighties a child fell through a hole in the roof on its head and was awarded £100,000. That was taken as a headline by the State, and lest it leave itself wide open to this type of claim, some of our beautiful monuments have been fenced off, precluding the public from access to their own heritage. There are two cases pending against Carlingford Castle — in one case a gentleman fell down the steps in the dark. These people entered the property uninvited, but I suppose it was reasonably accessible. There is no electricity in the building and they fell down the steps. There is an industry of fabricating cases against the State sector in particular.

I suggest that the concerns of the farming community and the sports associations are warranted given the way the claim industry has proceeded, particularly in relation to State property. I would ask the Minister to confirm that the Taoiseach means what he says and says what he means and that in the next 24 hours he will undertake what he promised, that during the life of the present Government legislation would be introduced to reform the law relating to liability for personal injury claims against farmers. Or can we tell the farming organisations, the sports organisations, the tourist industry that the Taoiseach, Deputy Reynolds, has reneged on his commitment to this sector of the community.

Éamon Ó Cuív

I move amendment No. 1:

To delete all words after "Seanad Éireann" and substitute the following:

"conscious of the complexity of the law on occupiers' liability and of the wide range of interests involved, notes that the matter is currently under examination by the Law Reform Commission; and welcomes the indication given by the Government that it intends to bring forward any legislation that may be required before the end of 1993."

Senator Doyle referred to the commitment given by the Taoiseach. It is obvious that the Taoiseach intended living by that commitment, but unfortunately, due to circumstances totally outside our control, a combination of a rainbow coalition that might come together tomorrow of Democratic Left, The Workers' Party, The Labour Party, Fine Gael and the Progressive Democrats, he might not be given the opportunity to oblige in this case. No doubt if you leave this Government to run their full term, and there is another year and a half to go, we will during 1993 act as the Taoiseach said we would.

However, I think the motion put down by Fine Gael has a lot of merit. The greatest argument against it has been put by Senator Doyle, that is, that trying to deal with this question of liability insurance in a piecemeal fashion could leave us with as many crazy anomalies then as we have now. As somebody who has worked in industry, who is involved in farming, who is a householder, I think we are all aware of the huge problems everybody faces with the growth in litigation and the problems regarding liability insurance.

We must, on the one hand, ensure that people are reasonably compensated and protected; but, on the other, it is fair to say that the kind of burdens now being placed on public authorities, as pointed out by Senator Doyle — although it is outside the scope of the motion — on farmers and on employers has come to the point of diminishing returns. In other words, what people are now deciding to do is, if you cannot protect yourself, close down; if you cannot protect yourself against the local gun club possibly taking an action against you, keep them out; if there is a danger because you allow people trek through your lands to get to the local mountain, keep them out; if you have a problem as a local authority with a play area, keep them out. We all know the syndrome. My view would be that dealing with this in a piecemeal fashion as it affects farmers and land occupiers would be a foolish way to do it.

Mrs. Doyle

Our motion deals with property as well.

Éamon Ó Cuív

If the Senator means property in the terms of county council property, etc., I would have thought it would be much simpler to put down a motion to deal with liability insurance. Senators may remember that earlier this year at the instigation of the Government side we had a long and comprehensive debate on the insurance question. I was one of the Senators behind the move to have that debate because, as far as I am concerned, all types of liability insurance need to be reviewed. For example, we know the huge problems that relate to employers' liability insurance where, no matter what care an employer takes regarding safety on his premises, the employer will always, in real life as opposed to the law, be considered to have been negligent and therefore will wind up paying the bill.

I see this as a huge and urgent issue and I would not like to see it put on the long finger. For example, when I was running the local co-operative, our liability insurance bill for running a timber mill, farms, store, etc. — between employers' liability and public liability — would have been in the region of £14,000 over and above what our colleagues north of the Border were paying. I was aware of that deadweight going out every year on liability insurance. However, as the Law Reform Commission have been asked to report and make suggestions on this, it would be foolish to jump ahead of their suggestions and their thorough examination of the whole issue and introduce piecemeal legislation.

When we are talking about liabilities we have to ensure that the reverse liability is firmly established as well: if somebody comes onto my property and damages it, it should be clearly established that I am entitled to compensation. For example, if a hunter or a gun club, comes in and wilfully destroys property, the liability should work the other way. I favour the notion of no fault compensation in certain circumstances but that would be reasonable compensation, and we should try to get away from this notion of trying to establish negligence and liability. Most people think that automatically there is a no fault system.

If we are honest about this, most punters think if you get hurt you are automatically entitled to compensation whether you can or cannot establish negligence. Maybe what they think is what should be, because I often wonder whether we are going through a charade trying to establish a mythical negligence and paying lawyers huge sums of money. If a person breaks their leg, as long as they were not negligent — and that is where I think negligence should come in, not on the person who owns the land unless there was criminal negligence — it is ridiculous to try prove that if there had been a barbed wire standard fence, it should have been two inches higher or two inches lower, simply to establish mythical negligence.

In the case of ordinary accidents there should be some concept of no fault system. As I said, if somebody breaks a leg in a parish hall or in a gun club, it is foolish that they have to go through a process to twist what happened to prove that the floor was slippery, the grass was wet etc., to establish negligence and if they cannot do that, they can be left high and dry without compensation.

I have always favoured a system of arbitration, of reducing the emphasis on establishing an adversarial system here, reducing the number of cases where negligence would become an issue and ensuring that for reasonable accidents — where it is truly what you would term an accident — there would be reasonable compensation which would be decided by a method of arbitration rather than exhaustive court procedures in an adversial system.

I look forward to the comprehensive proposals of the Law Reform Commission on this subject. I regret that the Law Reform Commission were not asked to do this 20 years ago. If it had, the little operation I worked for would be £100,000 to the good. Is fearr deireanach ná go bráth. This proposal is now in train. We have asked for their report which we hope will be available in 1993 and legislation should be introduced soon after to put the matter right. This is a very serious matter as, I think, we all agree. I hope the Opposition accept this as reasonable.

We are always talking about competition and about costs but in my experience of business this is the one uncompetitive hidden cost for which everybody is paying.

Ba mhaith liomsa, mar sin, leasú an Rialtais a mholadh. Bheadh súil agam go bhféadfadh Fine Gael glacadh leis an leasú seo sa spiorad inar cuireadh síos é agus go bhfeicfidís gurb é an rud ba chiallmhaire anois a dhéanamh ná glacadh le tuarascáil an choimisiúin agus é a scrúdú nuair a thiocfaidh sé amach, agus ansin dlí nua a achtú. Tá súil agam go mbeidh an Taoiseach atá ann i láthair na huaire ann ag an am sin le seasamh lena fhocal i 1993 maidir le cur i bhfeidhm na reachtaíochta seo.

Mr. B. Ryan

Ní thógfaidh mé mórán ama. Ní fheadar cé chomh réadúil is atá an t-atmaisféar anseo agus sinne ag plé na gceist, ach ní dhéarfainn go bhfuil sé teibí. Is é an fáth gur shocraigh mé ar labhairt nó go bhfuil ceisteanna bunúsacha taobh thiar den ábhar faoi leith atá á phlé againn, ach tá ceisteanna tábhachtacha, bunúsacha ann faoi chonas mar a oibríonn an córas Stáit, chonas a oibríonn an tOireachtas agus an córas atá againn chun reachtaíocht a chur os ár gcomhair, chun é a phlé agus a athrú. Tá an cheist i bhfad níos leithne ná ceist an árachais agus an cheist treaspáis atá luaite sa rún seo.

As I said, this debate has a slight air of unreality about it, but nevertheless the issues involved are extremely important, particularly for those of us who, whatever the permanence or otherwise of our positions here, tried to take this second House of the Oireachtas seriously. To the external observer it seems utterly ridiculous that a person could be liable for enormous damages, and there are documented cases of the trustees of community halls being virtually bankrupted by damages by people who perhaps had no business being on the premises in the first place. One wonders — and this is where the institutional question arises — about the effectiveness of our legislative institutions, ourselves and the other House, if we have to wait some indefinite period, as Senator Ó Cuív said, for something that perhaps should have been self-evidently done 20 years ago and which is obviously a hangover from strange and mysterious times.

The real question that underlies this specific issue is the institutional failure of the Oireachtas to devise a method of reforming legislation which does not leave the Government and their capacity to handle work as the only conduit for reform. There is a fundamental problem about this and about the increasing number of Law Reform Commission reports which are, perhaps, dutifully adverted to in a casual debate but which take a long time to ultimately turn up in detailed legislation. The law on homosexuality, for instance, has long since been referred to by the Law Reform Commission and we are still in a strange limbo on that one; and there are many others, the law on libel and on many matters that have been referred to over the years.

The Law Reform Commission should be an institution for change, not an excuse for temporising. There is a fundamental difference. Is the Law Reform Commission a vehicle to simplify the process of the production of draft legislation or, if Governments do not believe there are political kudos to be got out of them, is it simply a way of putting awkward or tedious or boring or unexciting issues, on the long finger, metphorical or otherwise, so that we do not really have to worry about them for a while longer? I have seen in the case of several Governments suggestions that it was inappropriate to take a decision on something because "we were awaiting a report from the Law Reform Commission". If the primary function of the Law Reform Commission is to give Governments excuses to temporise yet further on matters that seem self-evidently necessary to the external observer, then the Law Reform Commission are not doing their job; in fact, they are doing positive harm, they are delaying the process.

As well as the advice of the Law Reform Commission, there seems to be a case for a law reform function within the Oireachtas via something like the Committee on Legislation we used to have, which should be entitled to draw up, initiate and introduce legislation in the House that was agreed by the committee and which perhaps would pass through the Oireachtas in a much more abbreviated process of debate, having been considered by the committee, thus enabling considerable areas of legislation to be dealt with like that.

I hate saying this over and over again but I cannot but feel I have to remind Ministers they do not have a monopoly of wisdom, that they are not infallible and that — dare I say it — not even their officials are infallible. There is no single conduit of wisdom in this process. Even Eamon de Valera in all his wisdom did not find a way of putting a conduit to infallibility into the 1937 Constitution and we should not pretend that one exists, or even give the illusion that one exists. Therefore, while we will probably get negative notice publicly for this debate, it is extremely important that the second House of the Oireachtas should bestir itself to discuss things that might never surface on the agenda of the other House but which have caused enormous human pain.

I am still horrified at the recollections of a number of years ago, which are a bit cloudy now, about decent people in rural Ireland who put their names as trustees to try to be of some service to the local community and ended up damn nearly losing their own homes. That was a horrifying thing to have ever happened. It is a dreadful reflection on all of us and on the institutions we are part of that we allowed those things to happen and that we did not immediatley rise up in anger.

I remember the panic that ensued in this nation less than three years ago when a certain large meat processing company was in trouble and the Houses of the Oireachtas were recalled and efforts made to interrupt my holidays — unsuccessful, I am glad to say — to get me up here to bail out a meat company. We had the spectacle in earlier times of decent people almost losing their homes because of defective legislation and defective provision and we never found — and I blame myself as much as anybody else — the same sense of urgency. In my view, the pain of ordinary, community-minded, caring people is a far more important value than the bailing out of the perhaps speculative excesses of a beef baron. Therefore, this sort of legislation is extremely important.

I do not think we appreciate the extent of this problem. A wonderfully exciting and potentially lucrative project for the community on Sherkin Island, the Sherkin Island Marine Adventure Centre, was closed down because of the prohibitive cost of public liability insurance. Everybody knows of public playgrounds in many urban areas that are effectively being closed down by local authorities who find the cost of public liability insurance too high. It is time we dealt with these things. These are the problems of ordinary people. They are not the problems of the rich and the famous; they are problems of ordinary people and they affect the quality of life of ordinary people.

I want to put one matter on the record. Something that has increasingly given me concern is the growing feeling people have that one of the reasons some awards have been so high is because the insurance companies do not bother to contest them. Essentially, the insurance companies say that if it is less than £10,000 or £20,000 in damages, they will not bother contesting it. It is not worth the hassle, the time, the expense. I do not believe it is the occasional award of £500,000, £250,000 or £100,000 that pushes up the costs; it is the regular trickle of small to medium awards, £5,000, £10,000, £15,000 going on week after week, day after day, all over this country — most of them perhaps in the Circuit Court and many of them unreported. That is what ultimately pushes up the cost.

There is a fundamental question there. What is wrong with our legislation, what is wrong with the competition practices of our insurance companies, what is wrong with the cost basis on which they get paid, why do they not bother? How is it that the sums of money that would bankrupt the rest of us if we had to pay them out of our back pocket are so insignificant to an insurance company that it does not even bother to contest a claim? The word gets out very quickly if the insurance companies do not bother to contest it.

I support the motion and reject the amendment because I do not like to see the Law Reform Commission being dragged in every time there is awkward legislative reform mentioned and things are put on the long finger. Having watched the record of this Government in other areas of law reform, where even the European Court of Human Rights cannot prompt them into any decisive action, I am increasingly sceptical about references to the Law Reform Commission. I appeal to the Minister as well as making a commitment to the legislation to do something about the increasing laziness and inertia of insurance companies that do not bother to contest what they regard as trivial claims but which to the rest of us would be large sums of money.

Minister of State at the Department of Justice (Mr. O'Dea)

Initially, I would like to deal with the last point made by Senator Ryan. I could not agree with him more; that is a very serious problem but there is one factor he left out of the equation. He referred to defective legislation and practices of insurance companies, which are driving up claims. Perhaps we would want to ask ourselves what is wrong with our people, because we have more of these claims per head of population, both on car insurance and personal injury, than any civilised country. I find it extraordinary that in a country which is apparently so hung up on sexual morality that morality seems to be sadly lacking in other areas.

A number of other points were raised there and perhaps I can deal with them towards the end of my contribution. May I say straightaway that I welcome the opportunity afforded by the motion to bring Members up to date on recent developments in the area of the law concerned which we are talking about here and which is known generally as occupiers' liability. The Government have not been slow to initiate the examination of the law with a view to its clarification and restatement in a modern statutory form.

I first want to say a few words about the law as it applies generally before narrowing the focus as to how it affects farmers in particular. Occupiers' liability is concerned with the duty of care that is owed by all occupiers of land or premises towards all entrants on to that property. Very few of us are not touched by this area of the law. Ordinary householders, even tenants, are in a similar position to farmers and other landowners in that they owe a duty of care to all individuals who come on to their property for whatever reason. The law extends to the business community, to educational institutions and to State authorities, and, of course, the State itself owes a duty of care towards entrants on to State property.

The law on occupiers' liability began to be developed about the middle of the last century. It naturally reflected the power of the land-owning classes at that time. Apart from the relatively minor exception of the Hotel Proprietors' Act, 1963, the law in this area is the common law, that is, judicial law. To know what the position is you have to be aware of its development through the various cases, which admittedly is unsatisfactory.

Traditionally, the duty of care owed by an occupier to entrants on to his property was based on the legal status of the entrant — the greater the benefit the entrant conferred on the occupier, the higher the duty owed by the occupier. There were four main classes of entrant and I will briefly deal with them, stating what the law is in relation to each.

First was the contractual entrant who entered property as a result of a contract with the occupier. Subject to any particular terms in the contract, there was traditionally an implied term that reasonable care must be taken to make the property safe for the purposes contemplated by the contract. An example of a contractual entrant would be the cinema-goer who pays to be admitted. Typically there is no written contract and, of course, there is no express contract term concerning the possibility of injury while on the premises. While a high standard of care is owed to such entrants, there are limits, as illustrated by a leading Irish case. The plaintiff cinema-goer was injured when the patron immediately in front of her tipped up his seat and caught the plaintiff's outstretched legs. The judge dismissed the case declaring that although cinema owners had a duty to ensure that their premises were reasonably safe for patrons, they were not insurers.

Next comes the invitee, that is, a person on the property on business in which the occupier had an interest. The occupier owed the invitee a duty of reasonable care to prevent injury from unusual dangers of which he or she knew or ought to have known. There have been difficulties defining exactly what are the criteria which determine whether an entrant is an invitee, and for the sake of simplicity I will again rely on a few examples. The Irish courts have held that a paying patron at a dance, a delivery man while on the premises for delivery and persons on premises for refreshments, all fall into this entrant category.

A lesser duty of care was owed to licensees. These were persons who are permitted to be on the property but only for their own benefit. The occupier owed them a duty to warn them of concealed dangers of which he or she was, or ought to have been, aware. An example of a licensee which will be familiar to many who have an interest in this area of the law is the sportsperson who has permission from a farmer to hunt or shoot over his or her lands. There have been some interesting interpretations of what amounts to a concealed danger: in one case an open fire was regarded as a concealed danger for an infant-licensee.

The class of entrant to whom the lowest duty of care was owed were trespassers. "Trespasser" is a prejorative word. It conjures up the image of somebody out to do you no good in the dead of night. However, a trespasser can also be an innocent entrant. Legally it means any person on the property simply without permission, so it can cover children, people who are lost, picnicking families, bird watchers, etc. Furthermore, tacit acceptance of the presence of a trespasser on the land can raise his status to that of a licensee.

Generally speaking, this class of entrant had no right to be on the property and traditionally the duty owed was merely not to injure them by intentional or reckless conduct. The occupier is entitled to protect his premises, but if he creates a danger which he knows a trespasser coming into the premises will not see, or will see but not realise the danger he, the occupier, must take reasonable care to prevent injury to the trespasser. However, the duty of care owed to this category of entrant was changed by a Supreme Court decision in 1974, which I will discuss in a minute. The increased duty of care owed to trespassers has led to a certain amount of dissatisfaction on the part of occupiers. Occupiers have objected to having a duty to ensure that trespassers are not injured.

The law in this area in relation to trespassers is in a state of transition since a Supreme Court case in 1974. The case was that of McNamara v. ESB and I will give a summary of the details. The facts were as follows. The plaintiff, an 11 year old boy, having climbed over a wire fence which surrounded an electricity transformer station was injured when, in an effort to catch a drainpipe and slide down from a flat-roofed addition to the station, his hand came into contact with a high tension cable some 13 inches from the drainpipe. Since the original station had first been built in 1929 and since the flat roofed addition was built in 1936, the area around the station had become considerably built-up and the danger which the stations offered to children was well appreciated by the authorities. Another important aspect of the case was that at the time of the accident the wire fencing surrounding the station was being repaired and, far from acting as a barrier, actually facilitated access to the flat-roofed addition to the station. To summarise the final outcome, briefly, the Supreme Court decided that the occupier owes a duty to trespassers whom he could reasonably foresee and that the duty in such a case is to take such reasonable care as the circumstances demand.

This decision is of crucial importance because it had the effect of elevating the duty of care owed by the occupier to the trespasser to a level higher than was hitherto the case. Equally important is the implication that an even higher duty of care was owed to invitees and licensees, that is, the clases of entrant above that of trespasser in the "hierarchy of care".

The law is continually being developed by the courts in the light of that decision. Recent cases show that there is a move away from, if not a total abandonment of, the traditional categorisation of entrants with the relative duties of care being due to them towards the imposition of a general duty of care applicable in all cases, having regard to the particular circumstances of each case. This is based on the test of what is reasonable on the facts of each case and whether the presence of the injured party on the land or in the premises was reasonably foreseeable in the first instance. It really is an extension of the neighbour principle in the general law of negligence to the area of occupiers liability. While the law continues to be developed by the courts it does appear that the lack of a clear statutory statement in the matter is causing some difficulty.

Turning now to the wording of the motion, it seems to infer that there should be a general reduction in the legal liability of farmers and others in respect of injuries sustained by all entrants. As far as I am aware, that is not what is being sought by many members of the farming community.

Mrs. Doyle

That is not a correct interpretation of our motion.

Mr. O'Dea

I will accept your interpretation of your own motion. For one thing farmers are worried about their legal liability to hunters and other sports-persons who come within the legal class of licensees. Where such persons are injured through no fault of the farmer, farmers consider that they should not be liable to a compensation claim. Farmers consider that it is especially unfair that they may be held liable for an injury to trespassers who have no right or authority to be on the land in the first place. Moreover they feel that their vulnerability to compensation claims is heightened by the ever increasing use of farmlands for sporting and recreational purposes.

Farmers with national monuments or other "allurements" on their property may be at greater risk. They want a statutory provision which would exempt them from any liability or duty of care to trespassers particularly and to any person who uses their land for sporting or recreational purposes and to visitors on the property to see a monument.

Clearly there is a problem here which needs to be addressed but, for one thing, it is not easy to get a clear picture of the extent of the problem. Certainly very few cases seem to have reached the courts and the reason for this may be that cases are being settled at an early stage.

Whether any Government could agree to give farmers or any other group of occupiers total exemption from liability even in relation to trespassers is by no means certain. Having said that it could be that the existing law places too high a burden on them. The 1984 English Occupier's Liability Act which deals with trespassers if often quoted as a precedent to be followed. That legislation does not, however, exempt occupiers from liability in relation to such entrants — nor for that matter does the equivalent legislation in a 1985 Northern Ireland Order. However, in both jurisdictions the duty owed can be discharged "in an appropriate case" by placing warning notices on the land. Furthermore, the legislation also provides that no duty is owed to persons who voluntarily accept the risks associated with going on to the land. This seems to be a common theme running through the laws in other common law jurisdictions, such as Australia, New Zealand and Canada.

I can assure the House that the Minister for Justice is keenly aware of farmers' concerns and of the urgency they attach to the matter. That concern is evident from the Minister's willingness to meet with farmers' representatives to discuss occupiers' liability and from his attendance last April at a seminar on this area of the law organised by the IFA. It is, I think, fair to comment that farmers and others who attended the seminar were reassured by what the Minister had to say on that occasion.

Turning briefly to the question of insurance, it is understood from the Irish Insurance Federation, which is the umbrella body for insurance companies, that the issue is not a matter of very great concern for insurers at the moment though they are worried about the perceived uncertainty in the law and the tendency is to settle such claims that have been made rather than go to court. This encourages more claims of course, and is leading to upward pressure on farmers' liability insurance premium rates as well as on those of other bodies.

The farmers' own insurance company — FBD Insurance — and the PMPA have a policy tailor-made to indemnify farmers against these risks, but they do not seem to have a high take-up rate. Clearly it would be in their own best interests for farmers to ensure that they have adequate public liability cover. The sooner the uninsured get cover the better and, if it transpires that the law reduces their liability, it should be open to them to negotiate a lower premium.

As well as that the umbrella body for the shooting community — the National Association of Regional Game Councils — has its own indemnity scheme for its members. Furthermore, the Irish Association for Shooting and Conservation offers its members the benefits of a comprehensive insurance package. It is accepted however that 60,000 shooters are not covered by these schemes.

Farmers' worries ought to have been lessened to some extent by a decision of the High Court early last year. The case involved two sportsmen, one covered by an indemnity scheme, and who had express permission to shoot over the farmer's land, the other not so covered and with no such permission. The uninsured party injured the other shooter who then sued his own gun club, the person who caused the injury and the farmer. The case against the farmer was on the basis that he should have ensured that persons shooting on his land were insured. Giving his decision on a motion to exclude the farmer as a co-defendant, the judge said that his first view was that the farmer as owner of the land would be liable as he had habitually allowed a dangerous activity to take place on his land and would have to take reasonable care. However, he did not think that, in the final analysis, the farmer could be expected to keep a perpetual look-out to see that people who were not insured did not shoot over his land. The judge struck out the case against the farmer on that basis. I accept that this decision is not as compelling as a Supreme Court one but it should nevertheless offer some degree of reassurance for farmers.

I should emphasise at this point that farmers are not the only group unhappy with the law on occupiers' liability as it stands. Several Government Departments have encountered difficulties with the current law. The Department of Energy is concerned about claims made against the State in respect of injuries suffered by people in State forests, for example. Restrictions have been placed on public access to certain State lands which includes forest walks and amenity areas as a result. The Department of Agriculture and Food has expressed concern at the possible adverse implications for the growth of agri-tourism in consequence of what is perceived to be too high a duty of care on the occupier. The Department of Education has expressed concern about the impact of the law on outdoor sporting activities. Sporting organisations are concerned about the effect of dissatisfaction with the current law on the activities of their members. Gun clubs across the country have been particularly perturbed by the threat by farmers to cut off access to their lands and have backed calls from the farming community for an easing of duty of care owed by farmers to licensees and trespassers.

As regards more recent developments, in view of the complexity of the law, the many different interests involved and the fact that the law is currently in a state of transition, the Government took the view that the matter of possible legal changes was an ideal one for examination by the Law Reform Commission.

By following its usual consultation procedure, as a prelude to a report with final recommendations, the views of all interested parties could be assessed and taken into account. Following representations made by the Minister for Justice, the Attorney General formally exercised his powers under the 1975 Law Reform Commission Act and referred the matter to the commission earlier in the year. It is expected that they will complete their task expeditiously because the commission's task ought to be facilitated by the existence of a very useful report on occupiers' liability produced by the then existing Advisory Committee on Law Reform in 1975, and by the fact that there have been statutory developments in the area of the law concerned in most of the common law countries in the intervening period. As well as that, there have been the significant decisions of the Supreme Court in the matter in recent years. It is not, therefore, as if the commission is starting with a blank page.

Finally, I should state that the Government are committed to acting on the commissions' recommendations within the timescale of the Programme for Economic and Social Progress. Accordingly I can commend the amendment to the motion before the House in unequivocal terms on the basis that the situation is currently under active review and there is a commitment to bring forward the necessary legislative proposals before the end of next year.

I will deal with a point raised by Senator Neville. The Supreme Court has moved away from deciding these cases according to the category of plaintiff and has got rid of the distinction between trespassers, licencees and invitees, etc. to apply a general duty of care based on the famous case of Donoghue v. Stevenson 1932, the neighbour principle. That law would apply to people with rights of way because such persons are reasonably foreseeable by the occupier of the land, so the same reasoning as was applied in these recent Supreme Court decisions would apply there.

I agree with much that has been said on this motion and particularly with Senators Ó Cuív and Brendan Ryan in relation to the recent proliferation of claims and nonsense about trying to prove negligence regarding whether a barbed wire fence was two inches too high or too low. This has become an industry for lawyers and is certainly adding to the insurance costs of business, and it is costing jobs.

I have long advocated a change in the law of personal liability. The Law Reform Commission, if they take the trouble to read the report on this motion, would do well to consider the contributions of Senators Ó Cuív and Brendan Ryan. I reject the notion that the Law Reform Commission is simply a referral agency to get the Government off the hook in certain cases. It is appropriate, when dealing with technical, complex and difficult legislation for an expert body to consider what form that legislation should take before it comes to Government. The Dáil then debates it and often makes significant changes. The Law Reform Commission has been responsible for a significant amount of legislation which has later appeared on the Statute Book. That is the system in every civilised country and I do not see why we should be different. I have spoken to the Attorney General and he is now giving the matter urgent consideration. When the legislation returns from the Law Reform Commission it will be dealt with as expeditiously as possible by the Government.

In relation to the point made by Senator Doyle, I cannot say what a Fine Gael-led Government might do in relation to this report but I can assure the Senator that the next Government, which will be a single party Fianna Fáil Government, will give it urgent attention.

Mr. Hourigan

I welcome the Minister of State at the Department of Justice, Deputy O'Dea, here this evening; this is my first chance to do so.

Few people disagree with the motion and I was glad to hear that the Minister is in agreement also. I am aware that the Minister for Justice, Deputy Flynn, attended a seminar last spring organised by the IFA where he took on board a number of proposals and gave a certain assurance and promises. Last March or April is not long past and I hope that those proposals will be put into effect quickly.

According to antiquated legislation innocent landowners are held responsible for injury to persons coming onto their land even if uninvited and without their knowledge. It is a ludicrous situation and particularly in the case of trespassers. Senator Ó Cuív inquired if it applied the other way round and I can tell him that it does. For example, if a landowner's stock trespasses on another man's land the stock owner is responsible for damages caused to the other person's property or person. There is no reason it should not also apply the other way round.

Various points have been made regarding lobbies such as sporting groups, tourist groups, farming organisation groups, etc. who have come together to get this legislation updated. Let us realise — it has not yet been stated here — that this has been the law for as long as anybody here can remember but it has never been called into question until recently. I recall an incident in Tullamore where the trustees of the Muintir na Tíre hall were almost put out of house and home as a result of an unfortunate accident in the hall. We are not talking exclusively about farmers but about all property owners; the only way to approach it is to take all of these facts into account.

I would like to extend the resolution slightly and to bring to the Minister's notice another related anomaly regarding the question of animals on the road. If somebody opens a gate and lets animals onto a road the farmer is completely responsible for damage arising from the presence of the animals on the road. Equally, a man driving his herd of cattle along a road is responsible for injury to a motorist who might run into those cattle. Coming from a rural constituency the Minister will be aware that motorists pay little heed to people driving stock on the road. That is now an outmoded practice, like the law itself but it still happens occasionally. It is frightening that a person could have good fences and yet would be liable if somebody, maliciously or otherwise, left a gate open and allowed stock to wander onto the road.

It can be argued that if it is not a common practice liability is not upheld but we should compare ourselves with the United Kingdom where legislation clearly apportions "a commodity due of care" on the property owner towards all visitors. This is a duty to take care to ensure that visitors will be reasonably safe while on the property for the purpose for which they have been invited or permitted by the occupier. The difference between that legislation and ours is that apart from insurance policies, we do not offer cover to farmers for people either invited onto the land or trespassing. Of the two a more lenient view of farmers will be taken by a justice in the case of trespassers but that is not good enough.

While the Minister said that the FBD and other insurance companies offer policies adequately to meet these situations it is not reasonable to expect Irish landowners to insure property at high premia against accidents occurring to people who are trespassing or perhaps breaking into their property. To carry this to its logical conclusion, an injury sustained by a burglar while breaking into a house would be the responsibility of the person who owns the property. That is absolutely ludicrous. I would like to hear the Minister's view on the question of animals on the road and I emphasise that the law applies the other way round in that I am responsible for injuries my animals caused and I am also responsible for trespassers on my land.

I thank the Minister for his lucid and fair minded contribution. He accepted the basis of the points raised here. While there may be slight differences in our wording I do not believe that Members differ on this motion. We need an updating of the law to deal with this matter.

Mr. S. Byrne

This matter affects people other than farmers. In the case of public liability for local authorities, in South Tipperary it costs us about £80,000 four years ago and it now costs £320,000. That money would fill a lot of potholes and I am sure the same applies to every other local authority; costs may be even higher in cities. Cork Corporation has a huge problem in this regard.

There should be a public outcry against dubious claims. Local authorities have had to remove swings and play areas for children because of claims and Coillte had to remove seats in scenic areas that attract tourists and create jobs. I do not know what has happened to people during the last eight or ten years; the same situation obtains in car insurance because of increased accident claims which often but people out of business. The cost of public liability insurance is a serious consideration.

We respect and admire gun clubs in our area; members are responsible people and birds and fish have been created by God for everyone's pleasure — but it has come to the stage where one has to protect one's own rights otherwise one might be put out of business. How can a landowner know whether all members of a shooting party are insured by their club? I hope the Law Reform Commission will deal with this matter speedily.

It is hard to expect landowners to pay out large sums of money in compensation. A few years ago I banned people from shooting on my farm because I was scared that something might happen. I could not establish whether all of them were insured by their club. Gun clubs attract foreign shooting tourists in autumn and winter for which we admire them but there will always be cowboys who claim to be members of a gun club. I hope this area will be tidied up so that genuine fears will be allayed.

We live in an age when people expect soft money and no longer have a conscience about claiming from an individual, local authority, community hall or business. That is sad and I wonder if people have a conscience. Claims are costing taxpayers and farmers a great deal of money. Farmers do not want to stop insured persons from shooting pheasant or rabbit but a farmer has to protect his family and his holding and he may lose out if a reckless person fakes an injury on his property.

The sponsors of this motion are sincere but I ask them to accept the Minister's amendment. I appeal to the Minister who comes from a rural and urban constituency and knows more about law than I do to use his influence to see that we will not have to wait long for an improvement. It is a complex area as he rightly pointed out; one cannot rush in and put forward legislation that may be found faulty in the High Court or the Supreme Court. The fat cats would then lick their fingers because they would make a bomb in the Supreme or High Court as they do now in other areas at the taxpayers' expense. We want protection for people and a removal of opportunities for irresponsible people to make claims. They damage not only private business in the case of farmers, business people or community halls but also our national image and tourism potential. That is a serious issue. We have lovely walks and forests but owners are afraid to open them because of possible claims. I hope this area will be tidied up as soon as possible.

Mr. McMahon

I welcome the Minister with whom I had a run-in here last week but in the more relaxed atmosphere this evening I assure him that it was not personal. I was sorry to interrupt him. I wish him well but he is living in cloud cuckoo-land if he thinks we are going to have a one-party Government in a few weeks. There is no doubt that his constitutency will get more media attention than most.

Acting Chairman (Mr. Fitzgerald)

The Senator should speak to the motion.

Mr. McMahon

We are dealing with a matter of immense importance that is causing general concern. In some villages farmers have denied access to their lands where permission had been freely given previously.

Senator Byrne put his finger on the problem. No matter what insurance sporting clubs take out or what guarantees or documents they show, landowners fear that something will happen some day that will not be covered by the sporting club's insurance. Much has to be done with regard to liability on lands and property. In some places it is necessary for adjacent farmers to cross one another's land, as in the Glenasmole Valley where neighbouring farmers must cross each other's fields to gain access to their own property. It sounds ridiculous but that is the situation. The question of insurance has come up in a number of court cases, arising out of an injury to a farmer. Such instances may generate hard feelings between neighbours that may last for generations.

In agricultural colleges training is now provided on how to deal with trespassers on land. This is a major problem for local authorities. In the Dublin area thousands of pounds have been spent on the upgrading of recreational areas and open spaces and in providing infant play areas. They had to be closed because of the enormous cost of insurance. That situation should not exist.

In my part of the country the local authority removed a number of trees, to the great annoyance of many people in the area, to provide a car park. An Taisce was one of the organisations that created a fuss about the trees being removed despite an undertaking by the local authority that they would be replaced on adjacent lands. However, probably because of the protests, they left the largest and for many people the nicest tree. When I saw the trees had been removed on the side of the prevailing winds, I put down a motion in the local authority drawing attention to the danger that existed because this large tree had been left — much to the annoyance of An Taisce and other interested bodies who wanted to see more trees in the area. I was not successful in having them either trim or remove the tree. Within 12 months that tree had fallen and a car pinned underneath it. There were three children, their mother and father in the car. Miraculously none of them was seriously injured because a branch on the tree came down beside the driver's door and prevented the tree from crushing the car. They took the matter to court.

Mrs. Doyle

Rightly, too.

Mr. McMahon

I drew their attention to the fact that I had put down a motion a year or two earlier. I thought this would have been of enormous assistance to the family instead it worked against them. The council had had the tree inspected because of my motion and it was declared safe. Eventually the family got compensation and won their case but they had a hard fight because I had drawn attention to the fact that the tree was dangerous. I knew the tree was dangerous because all the trees on the prevailing wind side had been removed. As this was less than half a mile from my own home, I was familiar with the area. The ground around the base of the tree had been bulldozed to make the car park and it was obvious it would fall on a strong wind. It is extraordinary the way these matters work.

The Minister of State gave us a very comprehensive report. There is no doubt but that he is on top of the problem. As somebody said, this issue should have been tackled 20 years ago. Any further delay will cause great problems.

The Minister referred to other countries but conditions are not the same. I would not like to see us go down the road of taking action against everybody in sight when a person is injured and solicitors can list everyone who has an association with the property. In Australia and other countries many people are living on the proceeds of claims against insurance companies. The State are very much involved in this. I met people from Australia who came to Ireland, twice, on holiday because they had received insurance compensation for injuries received on the street or in a store. The amount of compensation paid was enormous. We are getting to the stage where people deliberately walk on one side of the street so that they will sustain an injury and claim against the relevant authority.

I was glad to see in a few cases in recent times in this country that judges spoke out against this practice and, in two cases the judge did not award compensation because he thought things were getting out of hand. It is a big problem that must be tackled. I cannot see it being resolved by one Act of the Oireachtas but I urge the Minister to do what he can to bring forward legislation to ensure that progress will be made in the dying days of this Government so that the next Government will handle it. If a start is made, we could hope to see some progress in the very near future.

Mr. Neville

I thank the contributors to this excellent debate on a very important subject and I thank the Minister for his comprehensive reply to the issues raised. The Minister said "clearly there is a problem here which needs to be addressed" and "while the law continues to be developed by the courts, it does appear that the lack of clear statutory statement in the matter is causing some difficulty". I welcome those statements.

I am disappointed that I am not in a position to put it to the Minister that he should do something about this because things are changing so rapidly. I look forward to our party having the opportunity, and moving very quickly on this issue within the next month——

Mr. S. Byrne

The Senator will be waiting a while.

Mr. Neville

Senator Ó Cuív made the case for us. It cost him £14,000 each year, a total of £100,000, when he was in business, because this issue had not been tackled. He put his finger on the problem, that is, as it affects job creation and developing a business. Many speakers referred to community centres, community based projects and voluntary organisations which are hamstrung by insurance.

A group came to me last week who were starting a tidy towns campaign in a beautiful little village in Ballingarry, County Limerick. The first thing I did was to advise them to get insurance. To start a social employment scheme, the first thing you do is get insurance. While, in a way, that is money down the drain, it has to be done. That whole area should be addressed.

There is no doubt but that false claims are made. When I was working in industry — and this was in the area of employers liability — I knew a man who had an accident every five years. He made a claim, and he could then change his car. I am not exaggerating when I say that but I will not go into details because the name might be known at home.

I would ask the House to support our motion. The Government have failed to honour the commitment made by the Taoiseach to introduce amending legislation. The agricultural community have expressed their extreme concern through their organisations as well as individually. Both the IFA and the ICMSA have had comprehensive submissions, including full day seminars, on the subject to warn their members of the inherent dangers. I want to stress again that while the motion relates to agriculture it also relates to all property holders. It is a very important issue in the industrial area with factory buildings and people walking in and out of premises.

I will not delay the House. I wish to state on behalf of my party that I am extremely disappointed that this issue has not been tackled during the lifetime of this Government.

I thank the Minister for coming to the Seanad and, no matter what happens over the next month, I hope both east and west Limerick comes out well.

Amendment put and declared carried.

Question, "That the motion, as amended, be agreed to", put and declared carried.

Acting Chairman

When is it proposed to sit again.

Mr. S. Byrne

The House will sit at 10.30 a.m. tomorrow.

The Seanad adjourned at 7.45 p.m. until 10.30 a.m. on Thursday, 5 November 1992.