Occupiers' Liability Bill, 1994: Committee and Final Stages.
Government amendment No. 1:
In page 3, subsection (1), to delete lines 10 to 17, and substitute: "not including an entrant who is so present and is——
(a) a member of the occupier's family who is ordinarily resident on the premises,
(b) an entrant who is present at the express invitation of the occupier of such a member, or
(c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member;".
The object of amendment No. 1 is to correct an anomaly which arises out of the way the definitions of recreational user and visitor are expressed. These definitions are interlocking so that entrants engaged in recreational activity, who are excluded from the definition of recreational user, are given the higher duty of care owed to visitors. These entrants are specified in paragraphs (a) to (c) of that definition and cover, for example, entrants who are expressly invited to engage in such activity.
However, the result is that two categories of entrant are excluded from the definition of visitor without adequate justification. These are entrants who are expressly invited by members of the occupier's family for non-recreational activities and entrants who are permitted by them to enter for social but not recreational purposes. This anomaly is being corrected in the amendment by the redrafting of the exclusionary words in the definition of recreational user so that paragraphs (b) and (c) of the definition no longer refer to entrants present for recreational purposes only but extend to those invited or permitted to be present for any purpose whatever.
The definition of visitor, which specifically includes entrants mentioned in those paragraphs, is thereby enlarged to include all such entrants. This is really a very technical amendment but I believe Senators will agree that the anomaly I referred to should be eliminated as proposed in the amendment.
The Minister will be aware that there has been quite an amount of concern expressed by farming organisation leaders in particular about what they fear is an absence of cover especially for visiting children, whether invited or permitted. Quite an amount of lobbying has taken place and has been constant for a number of years. Is the amendment designed to cover the fears expressed by the leaders of the farming organisations, or is it a further amendment to strengthen the existing cover? The leading farming organisations have been critical of the fact that the Bill as originally published did not go far enough to offer protection to farmers, especially those with heritage areas on their land. The Poulnamrone dolmen is a famous site in the Burren in north Clare, but the owner of the land has fenced it off for a number of years because of the fear of liability arising from accidents happening to people going to see the dolmen. It was anticipated that the Bill would totally safeguard such farmers, but there is still anxiety that it does not cover the situation. Will this amendment go further towards achieving that or does something more need to be done?
I understand the farming organisations are now reasonably happy with the amendments made to the Bill in the Dáil and with those proposed here. Following extensive consultation with the farming organisations, we made a number of critical amendments to the Bill in the Dáil. I believe Members commented favourably on the alterations we made on Second Stage. The position now provided for is that to qualify as a visitor a person requires the express invitation of the occupier. In other words, even an implied invitation would leave the person in the lesser recreational user category as opposed to being in the visitor category. It would require an actual express invitation before the entrant would qualify to be a visitor. I believe the organisations are happy with it.
Amendment agreed to.
Government amendment No. 2:
In page 3, subsection (1), line 25, to delete "such an entrant "and substitute "an entrant, other than a recreational user,".
This is purely a drafting amendment.
Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Will the Minister elaborate on the section?
This section states in straightforward terms the duty which an occupier of premises owes to visitors under the Bill. The section defines the common duty of care basically as a duty to take such care as is reasonable in all the circumstances having regard to the care which a visitor may reasonably be expected to take for his or her own safety. It equates approximately to the old negligence provisions and provides for contributory negligence by the entrant. It takes all circumstances into account.
This common duty of care is the higher standard of care owed by an occupier to a visitor, that is, a person who comes at the express invitation of the occupier or a person who comes as of right — a person who comes on the premise by virtue of an express or an implied term in a contract. This is the higher standard of care to be contrasted with the much lower standard provided for in the next section, which is the lesser duty owed to recreational users and trespassers. They both fall into the same category of liability. The common duty of care approximates to the normal negligence standards, to what is reasonable having regard to the circumstance in each particular case.
Does section 3 cover trespassers?
Question put and agreed to.
SECTION 4.
An Leas-Chathaoirleach
Amendments Nos. 3 and 4 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 3:
In page 4, between lines 27 and 28, to insert the following subsection:
"(2) No person entering on premises, or being thereon or leaving thereof with any criminal intent or whilst entering on, or being there or leaving the premises commits or attempts to commit any criminal offence will have any cause of action against an occupier of the same premises arising from his entry thereon, his being there or leaving the same premises.".
The purpose of this amendment is to insert a new subsection to give protection to the occupier. The Minister will see that it is in line with the thrust of the Bill, that is, to give the occupier better protection, especially against anyone trying to commit an offence or a crime while on the premises. I look for a positive reply from the Minister.
I inserted a provision in the Bill on Report Stage in the other House to meet the case made that persons who enter premises for criminal purposes or to commit offences while there should not be entitled to any compensation for injury sustained on the premises whether or not the occupier had acted with reckless disregard towards them. That provision is now contained in section 4(3).
It exempts an occupier from liability to any person who enters for the purpose of committing an offence against the person or property of the occupier or a family member or who commits such an offence while on the premises. It has an important qualification; it gives a court discretion to make an award if that would be required in the interests of justice.
That qualification was made because there could be cases where, if there was no such discretion, justice would not be done. For example, some offences can be quite trivial and predictable, such as raids by juveniles on apples trees each autumn. It would be wrong for the law to allow an occupier who behaves with reckless disregard in that context a complete exemption from liability. However, it was represented in the debate on that provision that the definition of "offence" did not cover cases where the offence was directed not against the occupier or the occupier's family, but against a neighbour or the neighbour's property.
My amendment is designed to meet that point and it amends the definition of "offence" by extending it to any offence whether or not it is committed against the occupier or a member of the occupier's family. Because the Senator's amendment could result in injustice in relation to the trivial kind of conduct I mentioned, I regret I cannot accept it.
In our view the Minister is still not covering a situation where people who enter with criminal intent can still sue the occupier for liability. Is that not still the case, although there is an improvement from the original situation? The fact is that those who break into premises for the purpose of committing a criminal act can, after suffering injury or whatever, sue the occupier for liability. Is that situation covered?
On reading this section, I believe the Minister is taking a reasonable approach. I understand and appreciate Senator Kiely's concerns, but we must accept that there could be situations like that which the Minister outlined where it would be wrong to give blanket coverage to somebody to take any type of action against somebody committing a slight misdemeanour like those entering orchards and premises. I do not believe a person should be covered to take any action against people in such circumstances. At the same time, we have seen cases in the US where people committing larceny, entering premises with intent to steal, sued the owner and received considerable damages. That could never be tolerated. Such situations are covered by the amendment the Minister introduced in the Dáil, having respect for a situation where a blanket coverage might be unjust.
I appreciate the Minister's reply that reckless action cannot be taken by occupiers against trivial trespassers and so on. However, is the Minister satisfied that the occupier is protected sufficiently against any criminal act by any trespasser on their lands or premises?
We are not talking about the trespasser situation here but about where a person comes onto land to commit an offence or commits an offence. Such a person will have no claim unless the interests of justice require it. My point is that that proviso has to be there to cover certain types of situations. For example, a 12 year old girl going into a garden to pick a flower is committing larceny, which is a criminal offence. However, I do not think that we would want to say in such a case the occupier would be at liberty to act with reckless disregard towards that child with impunity. That is why we have to put in the proviso. I submit that there is a bar on a claim by a person who comes to commit an offence and a court will be debarred from awarding damages in such a case unless the interests of justice require it. That is intended to cover that exceptional kind of situation.
The point was made by Deputy Woods in the other House that the way it was framed after Committee Stage there meant that the exemption would apply where a person came to commit an offence against the occupier of this particular land or against a member of the family of the person residing there. However, excluded from it would be the case where a person came through that land to commit an offence, not against that particular land but against a neighbour's land. I have taken that point on board so that, even in a case where the offence would be intended to be committed against an adjoining land, there would also be a bar against a claim in the event of injury to such a person unless they would come within the proviso that the court would hold that the interests of justice required it.
We have gone a long way on that and we are also including the category of an attempted offence as well as the committing of an actual offence. If a person comes on land in an attempt to commit an offence, even if they did not succeed in committing the offence, they likewise would be debarred from bringing a claim under my amendment No. 6.
I am sure that the Minister will agree that an occupier will have to take some action to protect their property if they see somebody entering their property. What is the definition of "reckless disregard"? How far can an occupier go to protect his property?
If a minor commits an offence by stealing apples from an orchard and on climbing over a wall when leaving the orchard is lacerated by glass embedded in the top of the wall, would the owner of the property not be committing an offence in that case?
The Minister gave a very innocent example of a child breaking into an orchard. However, people are worried that if a criminal goes through a man's fields and breaks into his house to steal his property, wrecks the house, escapes and falls into the septic tank on his way out, he can then sue the owner. Can that happen under this legislation?
My question is to the proposers of the amendment. What do they mean by "attempts to commit any criminal offence"? How does one prove that somebody is attempting to commit a criminal offence? It is open to a great deal of interpretation.
Many things are open to interpretation and it is the job of the courts to interpret them, which they do. The point made by Senators Daly and Kiely is covered by section 8, which provides that:
Nothing in this Act shall be construed as affecting any enactment or any rule of law relating to—
(a) self-defence, the defence of others or the defence of property.
Senator Kiely raised the question of what lengths a person could go to defend their person or family or property if somebody breaks in. The answer is that they can take any step which is reasonably necessary. However, a measure of proportionality is required by the law in that regard. For example, if a person broke in armed with a stick, it would probably be regarded as excessive if the occupier came with a gun and deliberately shot them dead. Whatever response was reasonably necessary is covered by those self defence provisions.
I must emphasise that this is a different category from the reckless disregard position. We are talking here about excluding a claim from a person who comes on land to commit an offence. While that person is a trespasser, they are doing more than that in that they are coming to commit an offence beyond simple trespass, which technically is not an offence. Coming on land to trespass without doing damage is not an offence, although many people think that it is.
When a person comes on land and commits an offence or attempts to commit an offence, they will have no claim unless the interests of justice require it. It is quite a major step forward to actually say that in that format. It is a blanket exclusion, and because it is so broad ranging it was necessary to put in the proviso for exceptional cases where the interests of justice would require it. For example, if an occupier acted with reckless disregard towards a child coming to pick a flower, they would not be allowed avail of the blanket exclusion which is provided for in other cases of commission of an offence on the person's land.
We do not want to delay the Bill but we are trying to cover the situation where somebody committing a serious criminal offence is injured on their entry or exit.
If a person comes to commit a serious criminal offence they would be covered by this exclusion.
That is obviously not the kind of case in which any court would reasonably hold that the interests of justice required them to achieve an award of damages.
We feel that this would strengthen the situation.
We have introduced this to cover that kind of situation. That is the reason that subsection (3) was put into section 4.
Amendment, by leave, withdrawn.
Government amendment No. 4:
In page 5, subsection (2)(e), to delete lines 1 and 2 and substitute "impracticability, having regard to the character of the premises and the degree of the danger, of so doing;".
This is the first of two amendments to subsection (2) of section 4 which contains various criteria to guide in determining whether an occupier has acted with reckless disregard towards a recreational user or trespasser. The particular criterion with which the amendment is concerned is that specified in paragraph (e) of the subsection:
the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticality of so doing, having regard to the degree of the danger;
It was represented to me that a further relevant consideration which should be taken into account in assessing the burden on an occupier of eliminating a danger or protecting a person or a person's property from it should be the character of the premises, whether they be farmland, factories, shops or private houses. The amendment is reasonable and makes the necessary addition to paragraph (e).
Amendment agreed to.
Government amendment No. 5:
In page 5, subsection (2) (g), line 10, after "premises" to insert ", having regard to the extent of his or her knowledge thereof".
This is an amendment to further refine paragraph (g) of subsection (2). Paragraph (g) is another of the criteria for determining whether there was reckless disregard on the part of an occupier towards recreational users or trespassers. It requires account to be taken of their conduct and of the care they may reasonably be expected to take for their own safety. The amendment requires regard to be had also when taking account of these matters to the extent of the entrant's knowledge of the premises. Such knowledge or the absence of it could be very relevant in farmland situations. I trust the House will agree that this is a useful requirement.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 6 has already been discussed with amendment No. 3.
Government amendment No. 6:
In page 5, subsection (3), lines 22 to 25, to delete paragraph (b) and substitute:
"(b) Inparagraph (a) ‘offence’ includes an attempted offence.”
Amendment agreed to.
Government amendment No. 7:
In page 5, subsection (4), line 32, to delete "for" where it last occurs and substitute "by".
This is purely a drafting amendment.
Amendment agreed to.
I move amendment No. 8:
In page 5, between lines 35 and 36, to insert the following subsection:
"(5) An occupier shall not be liable to a recreational user or trespasser in respect of any injury to the person or damage to the property of such person sustained or contributed to by reason of the ordinary use or storage of agricultural machinery for farming purposes.".
On Second Stage I mentioned the concern of this side of the House about this matter. The purpose of the amendment is to ensure the occupier will not be liable for any damage caused to any person using machinery for agricultural purposes. The occupier should be protected against such cases. I am sure the amendment is reasonable and that the Minister will see it as such.
This amendment proposes to exempt occupiers from liability for injury or damage caused by the ordinary use or storage of agricultural machinery for farming purposes. The Bill does not deal with injuries caused by the use of machinery. It is confined to those caused by dangers due to the state of the premises. Dangers arising from the storage of machinery are provided for in the Bill. I see serious objection to exempting any occupiers from liability if such dangers happen to arise in particular circumstances and they show reckless disregard towards the safety of anyone who may be injured by it.
In this Bill we are striking a fair and reasonable balance between the rights and obligations of occupiers and those of the various categories of entrants. So far as recreational users or trespassers are concerned, the occupier's duty is pitched at a lower level and simply requires the occupier not to injure them intentionally or to behave with reckless disregard towards them. Before an occupier can be held in breach of that duty, all of the various criteria mentioned in section 4 must be given full consideration, including the fact that entrants are expected to exercise reasonable care for their own safety.
If farm machinery is stored in such a way that it constitutes a danger to persons who are or are likely to be in its vicinity and if the occupier in doing so has clearly acted with reckless disregard for those persons and injuries result, I cannot see why the occupier should not be liable. The safety of those persons must be given due priority. It would be wrong, in my view, to have the law as such that a person who behaved with reckless disregard for the safety of another should be exempted from liability for injuries sustained as a consequence. I think the principle enshrined in the Bill is right and should apply to all occupiers in all circumstances where dangers exist, whether on the land or in stationary equipment on it. For these reasons I regret I cannot accept the amendment.
I do not think any occupier would deal with machinery with reckless disregard. If an agricultural contractor brings machinery which might have some fault on to a farm, I cannot see why the occupier should be liable for any injury which may be caused to any person using that machinery. The occupier should have better protection than that provided in the Bill.
The only circumstances in which the occupier could be liable would be if the court was satisfied that the occupier, whatever he did or did not do, had acted with reckless disregard towards the person. If the occupier has not done so, taking into account all the guidelines set out in section 4, the occupier is not liable.
Amendment, by leave, withdrawn.
Section 4, as amended, agreed to.
Sections 5 to 9, inclusive, agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I compliment the Minister on his expeditious dealing with this complex legislation. This issue has been the subject of controversy and has been serious in some tourist areas, especially in my own county, where many farms were locked up and important sites were fenced off. Lemanea is one of the most famous heritage buildings in Ireland. Its owner wired off the castle from visitors because of the fear of compensation claims arising from injuries people might sustain on their way in and out of the castle.
The Bill is a balanced effort, but the message must go out that people will have to exercise care and caution because the Bill cannot cater for every situation. Otherwise we may find there may be demands for further amendments to the legislation. Everybody, whether they are owner occupiers or visitors, have a responsibility to take care.
Everyone, whether the owner occupier or the visitor, has a responsibility to take care. Even on minor fishing expeditions, anglers have been damaged by wire fences but it is beyond the capacity of anyone to remedy that because cattle must be prevented from wandering. People visiting significant sites or angling in important fisheries will always have responsibility to the landowners as well as to themselves.
I compliment the Minister for acting speedily with this legislation and I hope it is successful.
I join with Senator Daly in welcoming the Bill and congratulating the Minister on bringing it forward. This issue caused great concern in rural areas; rural representatives were lobbied more on this matter than on any other for many years. People were extremely concerned.
I congratulate the Minister on being open to improve the original Bill. He listened to the farming and sporting organisations and politicians from all sides of the House who were concerned about the provision concerning minors and the mentally handicapped. We should thank the field sports groups who lobbied strongly to bring this issue to the fore, the farming organisations and the Law Reform Commission, which did excellent work in its two reports to develop the legislation. I hope the Bill will be signed into law within a short time.
I also thank the Minister for the care with which he has brought the Bill to us, his dedication to detail, his openness in accepting amendments from the other House, and for listening to the views of different groups concerned about the original Bill. The legislation will make a great difference to the development of tourism in rural areas. I hope insurance companies respond in kind — now that the safeguards exist, the high premiums which agri-tourism businesses had to pay should be reduced.
I congratulate and compliment the Minister for bringing forward the Bill. As an owner of land near a city, I had to discourage people from coming onto our land some years ago; that was the only step we could take within the remit of the law. No occupier wants to stop people having the pleasure of walking through lands and enjoying the freedom of the countryside. I hope this Bill allows that to happen and that occupiers will no longer be forced to discourage people from entering their property.
Much depends on how the Judiciary interprets the phrases "wanton disregard" and "reckless disregard" in the Bill. I hope they are read in the manner intended by the drafters. I wish the legislation well and, like the last speaker, I hope the insurance companies realise the onus is no longer on the occupier, it is shared by the visitor.
I also compliment the Minister on the way he dealt with the Bill. The farming organisations were concerned about the initial Bill and lobbied Senators on it. Before Second Stage I was in contact with them and attended meetings. The organisations were pleased with the amendments in the other House to the provisions on minors and entering land. I also compliment Senator Neville because he introduced a Private Members' Bill to highlight the concern, which was also expressed by the Progressive Democrats. Overall I am happy and the people who were worried think this is good legislation. As Senator Kelleher said, people can now visit land without occupiers being fearful of anything happening.
I congratulate the Minister on the speedy introduction of this Bill. He had my every confidence. It is timely in view of the visit of Prince Charles, from which will spring a welcome influx of tourists. Now these obstacles are removed, we can look forward to good tourism business in the coming year.
Many sporting clubs and landowners will be relieved about the provisions of this Bill. In my area there are many blessed wells, perhaps they exist in other areas, such as County Clare, as well. These have been frequented on a given day for hundreds of years — 6 May is the day for one well close to my home. Such events were threatened but I am glad their span will be extended by this Bill.
I thank all Senators for their contributions and kind comments which I much appreciate. I am pleased the Bill has now been passed. It represents a fundamental and radical change in the law as it has existed for hundreds of years. As a student solicitor some 40 years ago I remember learning this branch of the law.
This Bill brings about a fundamental change in the basis of liability for entry onto land. This is a major change, not a trimming operation because we have repealed the old common law rules dealing with liability for occupation which have existed for centuries and which have been evolved by the courts.
This change had to be made and one of the main objectives — although not the sole one — was to encourage tourism on lands. Previously many landowners feared actions; the fear may not have been well based but it did exist. They therefore closed off their lands and blocked access to public and heritage sites. That had potentially serious adverse affects for our crucial tourism industry.
With the passing of the Bill, I hope all occupiers of land, particularly land containing heritage sites, realise the law has changed. That will occur when the amendments made today are dealt with by the Dáil, which I hope will be soon. The regimen of legal liability will be different.
I hope those who have closed off their land, as mentioned by Senator Kiely and others, will reopen it so that tourists from home and abroad will have free and open access to these heritage sites, which we are fortunate to have, which are important to preserve and are a significant part of our culture. We want people to see them because they are of the greatest interest to so many of us. One of my greatest thrills is to travel around Ireland visiting these sites. It is a wonderful right and everyone should have it. We have made a contribution towards that and I thank Senators for their help in achieving it.
I thank the officials in my Department who have worked so hard on this particularly complex legislation. It may be a short Bill but it is an extremely complex area of law. We have improved it considerably since it was originally introduced. We have good, fair legislation now. The matter will now be in the hands of the insurance companies and the courts. It will take some time for it to settle down but we have done a good day's work.
Question put and agreed to.
Sitting suspended at 11.30 a.m. and resumed at 2 p.m.
