The proceeding is intended to provide a practical guide to the important changes wrought in the law by the Occupiers’ Liability Act 1995, in force since the 17th July, 1995.
The Previous Law
The previous common law rules governing Occupiers’ Liability, grounded in the 1867 decision of Indermaur -V- Dames, were structured according to the laissez-faire philosophy of the 19th Century. Accordingly, emphasis was placed on the legal category into which the entrant fell, as opposed to a more pragmatic approach based upon the facts of each instant case. Entrants were categorised according to the benefit they conferred on the occupier: –
The duty on the occupier was defined by the terms of the contract, or in the absence of an express term, there was an implied duty upon the occupier to ensure that the premises were safe for the contemplated purpose (Butler -V- M’Alpine).
The duty imposed upon the occupier was to use reasonable care to prevent damage from unusual danger of which he knows or ought to know (Indermaur -V- Dames).
The duty imposed on the occupier was to ensure that there were no concealed dangers upon his premises (Rooney -V- Connolly).
he occupier was under a duty not to act in a manner that was intended to injure the party, or to act in reckless disregard of such party (Coffey -V- McEvoy, Donovan -V- Landy).
In light of the preceding, it is reasonably clear that the law in this area was outdated. This if anything, was the point behind the seminal Irish case, McNamara -v- ESB, which imposed a general duty of care upon an occupier in respect of a “trespasser” whom the occupier knew used the property in question frequently. The Supreme Court was obviously influenced by the fact that the area of Occupiers’ Liability had no inherent quality that would merit it to stand aloof from the rampant development of the law of negligence in subjecting all parties to a general duty of care defined by the standard of reasonableness and the limits of proximity, since the landmark case of Donoghue -v- Stevenson.
More than merely being outdated, the previous law in relation to Occupiers’ Liability was confusing.
The numerous categories were often amorphous and ill-defined.
“A man may call to his neighbour’s house to look at the front door, or to redeliver a misdirected letter, or to deliver a present, or to try to make what proves to be an abortive sale, or to provide a service for which he is paid; in all these circumstances, he is the same man carrying out essentially the same physical actions in the same place with the knowledge and approval of the occupier. Yet it is said that there is a different level of duty owed depending on the hat being worn by the visitor at the particular time.”
“In founding this important aspect of the law governing the social obligations of occupiers of property on the artificial uniformity of the concept of a trespasser, the law has produced palpable injustices from which the courts have been constrained …to rescue Plaintiffs from defeat by treating them as licensees”
Henchy J., McNamara -V- ESB,  IR 1 @ 22
The pro-Plaintiff stance of the Courts in occupier liability cases, alluded to by Henchy J. above, was never more clear than in the interesting tete-a-tete between Lynch J. and the Supreme Court in Mullen -V- Quinnsworth (No. 2), where an invitee slipped on an oil spillage in the occupier’s premises, a supermarket. The central and somewhat controversial issue in this case revolved around the standard of care owed by the occupier to an “invitee”. Traditionally, this was understood to be that the occupier must not expose the invitee to any concealed dangers. However, the matter was not dealt with on this basis. A general duty of care was imposed on the basis of Donoghue -V- Stevenson, and in reliance upon the principle of res ipsa loquitur – that the circumstances of the case, without more, raise a presumption of negligence – liability was imposed upon the occupier.
This occurred in spite of evidence, accepted in the High Court by Lynch J., that there was supervision at least every fifteen (15) minutes at the locus of the accident, and that it was likely that the spillage giving rise to the accident only occurred within three (3) to four (4) minutes of the accident.
The point is reducible to this:- if the traditional categories of entrant, and the laissez-faire philosophy upon which they were based, were to be replaced by an expansive and general duty, would not the effect of this be to replace a bias in favour of the occupier with a bias in favour of the entrant? Mullen -V- Quinnsworth, though this was disavowed by the Supreme Court, came very close to imposing strict or absolute liability on occupiers.
The varying duties within each category were equally nebulous and unclear. The concepts of unusual and concealed dangers had to be defined and clearly distinguished from each other. The distinction was not always clear. For instance, a concealed danger was stated in Cooke -V- Midland Great Western Railway to refer to a trap set by the occupier involving conduct bordering on deceit and fraud. But the distinction if any, between this and a duty not to act in a manner that was intended to injure the party, or to act in reckless disregard of such party, as per the old statement of the law for trespassers, is very fine indeed.
However, when this approach was disavowed in Rooney -V- Connelly, the same case held that lighted candles at a shrine adjacent to an altar in a church was a concealed danger, an interpretation which, regardless of the subjective analysis of the Plaintiff, does considerable violence to the natural meaning of the word “concealed” as it is ordinarily understood. This standard is more akin to that of an unusual danger, although adoration candles in a church could hardly be described as unusual.
It is clear though, that the necessity to maintain the old categories led to the kind of fine distinction and hair-splitting that brings the law into disrepute.
Further uncertainty was engendered by the inability or unwillingness of the Courts to categorically depart from the established principles. The case of McNamara-v-ESB did not so state, and on a strict legal basis the holding was in consequence confined to the category of trespasser. Thereafter, opportunities arose for the Courts to advance the law, most notably in Rooney -V- Connelly and Foley -V- Musgrave Cash and Carry Ltd, but in spite of references to the artificiality of the law and a stated preference for a unified duty based on the test of foresight and proximity, no advance was really made on the McNamara -V- ESB position.
There is no doubt that this option was open to the Irish courts. The Australian High Court, a jurisdiction with a similar approach to the law, laid the categorical approach to rest in Australian Safeways Stores Party Ltd. -V- Zaluzna. Equally there is no doubt that the will was there to change the law.
“For my part, where the law has been made by judges, it can be unmade by judges. Indeed it is somewhat invidious to invite the legislature to effect a change in judge-made law; presumably such law was based upon the perceived demands of justice”.
The need for legislative intervention was clear. An admirable precedent was present in the English Occupiers’ Act 1957. The Law Reform Commission presented a comprehensive review of this area of the law in 1974. Yet this report and legislative intervention languished for twenty years. Eventually it took pressure from the farming community, who wished to promote agri-tourism, to see the 1995 Act enacted.
The 1995 Provisions
The 1995 Act does not apply to causes of action that accrued before 17th July 1995.
An occupier is defined as a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon.
The defining characteristic of the occupier is the element of control over the premises in question. It is not required that the occupier own the premises, merely that sufficient control be exercised by him over the premises that it is reasonable to impose a duty upon him, or phrased differently, that the degree of control is such that the person ought to realise that a failure on his part may cause injury to an entrant. A useful yardstick is whether the person in question has authority to admit or exclude persons from the premises.
Equally, the control exercised must be more than merely tenuous control. In Keegan -V- Owens and McMahon, a community of nuns were found not to be occupiers of a field because although they had permission to use, and had promoted a carnival thereon, the management and running of the carnival was controlled by a working committee.
Premises includes land, water, and any fixed or moveable structures thereon, and also includes vessels, vehicles, trains, aircraft, and other means of transport.
This definition is all inclusive. It should be noted that an employer is under a duty to his employee as a visitor to his premises, however this duty is more properly regulated under the Safety, Health and Welfare at Work Act 1989. Similarly, other statutory provisions, such as the Hotel Proprietors Act 1963 which imposes a more onerous duty upon hotel proprietors, are unaffected by the new legislation.
The occupier is under a duty to three classes of entrants:-
A visitor includes: –
an entrant who is present on the premises of the occupier at the invitation or with the permission of the occupier or a member of his family.
a member of the occupiers’ family.
an entrant who is present on the premises of the occupier for the purpose of an express or implied term in a contract.
The occupier is under a duty to take such care as is reasonable to ensure that a visitor to the premised does not suffer injury or damage by reason of any danger due to the state of the premises.
Regard may be had to: –
the care which a visitor ought to have to his own safety.
the extent of supervision and control that an accompanying visitor can be expected to exercise over such visitor.
all the circumstances of the case.
An occupier may restrict or vary his duty towards a visitor downwards to a duty not to intentionally injure or act in reckless disregard of the visitor or his property. This may be done by a reasonable express agreement, or by a reasonable notice which the occupier has adopted reasonable steps to bring to the attention of the visitor. Such reasonable steps are prima facie presumed if the notice is displayed at the normal means of access to the premises. The notice only acts to absolve the occupier if its terms are such that they would have enabled the visitor to avoid the damage or injury.
Effectively the 1995 Act consolidated the old categories of the contractual invitees, invitees, and licensees, and imposes upon such former categories of persons a general duty of care.
Gone are the concepts of unusual or concealed dangers, and in their place merely a clearly defined single concept of danger due to the state of the premises.
The most interesting aspect of the provisions in relation to the duty to visitors is the ability of the occupier to vary his duty by appropriate agreement or notice. This aspect of empowerment in the act is consistent with the objective of achieving a balance between the rights of entrants and occupiers. The theory is that if the occupier has gone to the trouble of warning entrants of the limits of his potential exposure for liability, there is no reason why the entrant should not be bound by that, as the entrant is consequentially put on notice that he ought to take more care himself. The prudent occupier ought to take full advantage of this provision. The notice should be placed at the main entrance to the premises, and should be stated in clear concise language. The following is a potential example:-
“Pursuant to the provisions of the Occupiers’ Liability Act 1995, the occupier of these premises puts all visitors to his premises on notice that his sole duties to them are:-
not to injure the visitor or damage the property of the visitor intentionally, and
not to act with reckless disregard for the visitor or the property of the visitor.”
A notable point is that the law applies equally to children and adults alike. Naturally, the age of the injured person is likely, along with all other relevant factors, to come under consideration as a relevant factor. Thus, the minority holding in McNamara -V- ESB under the old law, that an 11 year old boy would be unlikely to read a warning notice, and the Court’s holding that a 9 year old girl would be unaware of the danger of lighted candles (Rooney -V- Connelly), would still likely pertain in similar circumstances.
The Law is substantially simplified and clarified. Nevertheless it remains true that the precise meaning of the terms of the 1995 Act will only become clear upon construction of the Court and the pragmatic development of case law.
In this respect, it is important to note that the common law as it stood previous to the passing of the 1995 Act is now of doubtful relevance. Certainly cases which specifically rely on the old categorisations are now obsolete.
Recreational Users and Trespassers
A recreational user includes an entrant who, regardless of the occupier’s permission or invitation is present on the occupier’s premises without charge for the purpose of engaging in a recreational activity conducted in the open air, scientific research, nature study, exploration of caves, or visiting sites and buildings of cultural significance. Trespasser is simply defined as an entrant other than a visitor or a recreational user.
The occupier is under a duty to the recreational user or trespasser not to intentionally injure or act in reckless disregard of the person or his property.
Regard may be had to: –
whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises.
whether the occupier knew or had reasonable grounds for believing that the person or person’s property was or was likely to be on the premises.
whether the occupier knew or had reasonable grounds for believing that the person’s property was or was likely to be in the vicinity of the place where the danger existed.
whether the occupier might reasonably be expected to protect the person’s property from the danger.
the burden on the occupier of eliminating or protecting the person from the danger (eg. costs, impracticality, nature of the premises, etc.).
the desirability of maintaining the open access of premises for recreational activity .
the nature of any warning given by any person.
the care which a person ought to have for his own safety.
the extent of supervision and control which an accompanying person may be expected to have over the person.
all the circumstances of the case.
The occupier is not under any duty to a trespasser present for the purpose of committing an offence.
The occupier is under a duty to maintain a structure primarily provided for use as a recreational use in a safe condition.
The category of recreational user is novel to Irish Law. There is no equivalent under the UK Occupiers’ Liability Act 1957. Essentially, the category is a sub-section of the old category of licensee. The policy is to promote the use of property for recreational purposes. Thus, the category is quite limited in scope. The definition is reasonably clear, but again, it will require consideration in future case law to flesh out the border line cases of recreational users and visitor.
The standard of care is that which used to relate to the category of trespasser. It remains important to be aware of the legal definition of a trespasser, and to distinguish this from the category of a visitor.
A practical definition of a trespasser is that a trespasser is a person who goes on to land without invitation of any sort, and whose presence on the land is either unknown to the occupier, or is objected to (Addie and Sons -V- Dumbreck). A more legally accurate definition in light of modern conditions is that no person is to be accounted a trespasser who enters in order to hold any manner of communication with the occupier or any other person on the premises, unless he knows or ought to know that his entry is prohibited (Salmon and Heuston, Law of Torts). It should always be borne in mind that the traditional concept of a trespasser as a furtive poacher, or some similar character, is not legally correct. A trespasser may be entirely innocent of any malicious intent, and may even be unaware that he is a trespasser.
The holding in McNamara -v- ESB in imposing a duty based on the concept of foresight and proximity has been rolled back, and the old principle of reckless disregard ot intentional injury re-instated. A concession is made in that the occupier may extend his duty upwards, but this option is unlikely, if ever, to be availed of frequently.
An insightful English case under the similar 1957 Act, held that the standard of care that an occupier owed was that of a conscientious humane man, that such duty would vary according to the knowledge, ability and resources of the occupier, and that the duty did not extend to fence out trespassers or to foresee their presence on his premises (British Railways Board -V- Herrington). It is suggested that this standard should be borne in mind when considering whether the occupier is in breach of his statutory duty under the 1995 Act.
The duty which the occupier owes to an entrant shall not be altered or varied by the content of any contract to which such entrant is not a party.
The occupier shall not be liable to an entrant for damage or injury to him or his property due to the negligence of an independent contractor which the occupier has employed, provided that the occupier has taken reasonable care, and was not in a position to have knowledge of the inadequacy of the work done. An exception to this principle arises under the Hotel Proprietors Act 1963, and this is preserved under the 1995 Act.
The 1995 Act, though overdue, is, it is submitted, an improvement and simplification of the former law. It does however introduce a number of novel concepts (danger, visitor, recreational user, variation of duty by notice) into the law which will require interpretation and construction by the Courts in order to be fully certain of the limits of the definitions contained therein.