The aim of this Bill is to abolish the common law rules governing the liability of occupiers for injuries to entrants on their property and to put this branch of the law on a clear and firm statutory basis. I think it will help to put the provisions of the Bill in proper perspective if I set out briefly the common law on occupiers' liability and how it has developed in the last two decades or so.
Under common law entrants to property are placed in four categories for the purpose of determining the extent of an occupier's duty towards them. They are classified as contractual entrants, invitees, licensees or trespassers. Contractual entrants are those who are present in pursuance of a contract with the occupier and the occupier's duty is to take reasonable care in relation to them subject to any express provision in the contract extending or restricting the duty.
Invitees are entrants who confer a material benefit on the occupier, such as a customer in a shop or a paying patron at a dance. In that case the occupier's duty is to use reasonable care to prevent injury from unusual danger of which he or she knows or ought to know.
A licensee is an entrant who is permitted to be on the property but does not confer a material benefit on the occupier — for example, a person asking for directions or using a public park. Here the occupier's duty is to warn of hidden dangers of which he actually knows. As regards trespassers, the only duty owed is not to injure them intentionally or act with reckless disregard towards them. The distinctions between the different degrees of liability appropriate to the various categories are largely artificial and not surprisingly have proved extremely difficulty to apply precisely in the circumstances of particular cases.
In recent years these common law rules have been developed considerably by the courts. The distinctions between the categories have been further blurred and in particular the duty owed by occupiers to trespassers has been placed almost on a duty of care basis. The result has been a perception by occupiers, especially farmers, that the law is biased against them, particularly as it relates to claims by injured trespassers.
The Bill seeks to clarify and simplify this area of the law as far as possible. Instead of four kinds of liability to entrants there will be only two. These are the common duty of care which will be owed to what the Bill defines as visitors and a much lower level of duty which will be owed to all other entrants; that is a duty not to injure them intentionally or act with reckless disregard for their presence on the property. The provision of this lower level of duty to trespassers restores the position in this respect to what it was traditionally under the common law.
The Bill provides for three classes of entrant: visitors, who attract the higher level of duty; and recreational users and trespassers, who are owed only the lower level. Visitors are, broadly speaking, entrants who are present at the invitation or with the permission of the occupier or a member of the occupier's family living on the premises. Included also are resident members of the occupier's family, contractual entrants and entrants who are there as of right, such as inspectors under various enactments.
A visitor will enjoy this higher status only so long as he or she is on the premises for the purposes of the invitation or permission or as the case may be of performing the contract or exercising the right. That is an important element of the definition. If the visitor engages in some activity which is inconsistent with the purpose of the entry and is injured, he or she will lose that status and the lower level related to trespassers will apply.
The second category are called "recreational users". These are persons who enter property without charge to engage in recreational activities conducted in the open air, such as team sports, hill walking, etc. Cave exploration and visits to historical sites are also included. Even if the occupier gives permission for the activity to be carried on, the entrant will not thereby become a "visitor" unless a charge is imposed on entry or unless the entrant is either expressly invited by the occupier or a family member to participate in the activity or is permitted to do so for social reasons connected with the occupier or family member. The latter situation would arise, say, where a neighbour's children were on the premises playing with those of the occupier.
The inclusion in the Bill of this separate category of recreational users, to whom the lower duty is owed, has been generally welcomed both by the many organisations representing those users, by those bodies anxious to develop the tourism industry to its full potential and, not least, by the main farming organisations.
The third, residual, category is that of trespassers; that is, entrants who are neither visitors nor recreational users. In other words, they have no right to be on the property and are not engaging in a recreational activity. The duty owed by the occupier to both recreational users and trespassers is set out in section 4, to which I will come in a moment.
I will mention some further definitions because, although technical, they are crucial to an understanding of the Bill. First, the definition of "danger" makes clear it is only injuries or damage arising from the state of the property which are covered by the Bill. Dangerous activities by an occupier, such as the operation of machinery, are outside its scope and are dealt with under a separate branch of the law.
Second, "occupier" is defined as the person in occupation of the property for the time being and who has sufficient control over the state of the property for it to be reasonable to impose on him or her a duty towards entrants in respect of a particular danger on the property. Sometimes there may be more than one person on the property who may come within that definition, as where an owner of premises would grant a licence to an individual to allow part of the premises to be used by both of them. In such a case each of the occupiers could have different duties to a particular entrant, who might be a visitor in relation to one occupier but a trespasser as far as the other is concerned.
Finally, the Bill extends to all kinds of premises; the definition of "premises" includes land, buildings, water and movable structures such as scaffolding. It covers also vessels, vehicles, trains and aircraft, although of course only in relation to injuries caused by the state of those vehicles rather than by their operation. The Bill has therefore a wide scope and affects occupiers ranging from companies owning the biggest supermarkets or factories to the individual farmer or urban householder.
The key provisions of the Bill are those in sections 3 and 4, which set out the duty owed by occupiers to visitors and to recreational users and trespassers. In the case of visitors, the duty is a duty of care, that is, a duty to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of a danger existing on the occupier's premises. In assessing whether an occupier has fulfilled this duty in a particular case, account will be take of the care the visitor may reasonably be expected to take for his or her own safety and, also, if the visitor is accompanied, of the extent of supervision and control the companion may reasonably be expected to exercise over the visitor's activities. This concept of care is well established in the law of negligence. As a general rule, the plaintiff must convince the court that, on the balance of probabilities, the occupier did not exercise reasonable care in the particular circumstances of the case. It is the standard of care that occupiers themselves would expect to be shown when visiting another premises.
The duty owed to recreational users and trespassers is pitched at a lower level. It is expressed in section 4 as a duty not to cause injury or damage intentionally or act with reckless disregard for the person or property of the entrant. As I said earlier, this will restore the law relating to the liability of occupiers to trespassers to what it was some decades ago.
Section 4 goes on to set out various criteria to assist in determining whether an occupier has acted with reckless disregard. The first three are basic. The occupier must know, or must have reasonable grounds for believing, that a danger exists on the premises and also that a recreational user or trespasser is, or is likely to be, not only on the premises but in the vicinity of the danger. If that is not the case, clearly the occupier will not be liable. Even where these criteria do apply, regard must then be had to all the other criteria in the section before it can be determined that an occupier has acted with reckless disregard. These include the burden of eliminating the danger, or of protecting the entrant and the entrant's property from the danger, having regard to the difficulty, expense or impracticability of doing so; the tradition of maintaining open access to property used for recreational activity; the care the entrant might reasonably be expected to take for his or her own safety; and the nature of any warning of the danger given to the entrant.
Section 4 also provides that where a person enters premises for the purpose of committing an offence, or commits and offence while there, the occupier will not be liable for injury or damage unintentionally caused to the entrant unless a court determines otherwise in the interests of justice. This provision results from an amendment made in the other House. The Bill had already provided that the conduct of the entrant was to be a relevant criterion in determining whether an occupier had acted with reckless disregard, and on that basis it seemed unlikely in the extreme that any court would award damages to a burglar, or any other persons engaging in such criminal conduct, who had been injured by some danger due to the state of the premises. However, there was strong support for making specific provision in the Bill to ensure that such an award could not be made, and the amendment achieves this while recognising that there could be exceptional circumstances where the prohibition may have to be modified if justice is to be done.
The remaining provision in section 4 relates to structures which have been provided primarily for use by recreational users, such as equipment in a playground, benches in public parks, viewing points in scenic areas and so on. In those cases, subsection (4) of the section imposes on occupiers a duty towards such users to take reasonable care to maintain the structures in a safe condition. These structures do not include gates, stiles and the like which farmers and their families use in the ordinary course of farming. Specific provision is made to that effect in a proviso to the subsection.
The remaining provisions of the Bill are of lesser importance. Section 5 allows an occupier to extend or restrict his or her duty to entrants by express agreement or by notice. If the duty to visitors is to be restricted, the restriction must be a reasonable one in all the circumstances. If the restriction is by notice, the occupier must take reasonable steps to bring it to the attention of visitors but the occupier will be presumed to have done so if the notice is prominently displayed at the normal means of access to the premises. Needless to say, in no case may an occupier's duty to visitors be reduced below the level owed to recreational users and trespassers.
Section 6 provides that an entrant who is not a party to a contract cannot have his or her rights as an entrant taken away by the contract. If, for example, an occupier contracts to allow certain persons to carry out some work on the premises, the contract cannot contain a provision that the duty owed by the occupier is to be only that owed to trespassers.
Section 7 provides that an occupier who has taken all reasonable care when engaging an independent contractor will not be liable for injury or damage caused to an entrant by the contractor's negligence unless the occupier knows, or ought to know, that the work was not properly done. However, section 8 preserves the liability occupiers may have under the present law for certain duties which they may not delegate to independent contractors — for example, duties in relation to inherently dangerous work.
Section 8 contains other savers for existing common law and statutory provisions that impose responsibilities on particular classes of occupiers and which are greater than those imposed by the Bill, such as those imposed on hotel proprietors. It also makes it clear that the Bill does not prejudice the law governing actions taken by occupiers in self defence, the defence of others and the defence of property.
These then are the provisions of the Bill. When enacted, it will represent the considered views of both Houses as to what should be the appropriate balance in present day terms between the rights and obligations of occupiers and those of entrants to their premises. There has been close consultation with the farming organisations before and since the Bill was published. The other House dealt with this measure in a most constructive fashion and made a number of significant improvements to it. I now look forward with confidence to an equally constructive approach in this House and I assure Senators that I will give careful consideration to any views expressed by them in the course of this debate.
Finally, I take this opportunity of acknowledging the extremely valuable work done in this regard by the Law Reform Commission, which produced a well researched consultation paper and final report on this complex subject, thereby ensuring that our debates could be conducted in a fully informed manner.