The Gazette 1992

GAZETTE

sep

BER 1992

Reform of Occup i er s' Liabi l ity?

by Eoin O'Dell*

Part 1

As a response to lobbying of

successive Ministers for Justice, by

the IFA and others, the Law Reform

Commission has recently commenced

a study of the law in relation to

occupiers' liabiiity. In this area, as in

so many others, as a result of our

history, the Irish common law has its

roots in English law. However, from

this common point of departure, the

two jurisdictions have embarked upon

different journeys, taking different

routes to different destinations. Irish

law has gone down the road of

judicial reform of the common law.

In England, reform has been

comprehensive but has taken a

statutory route. The aim of this

article is to consider the efficacy of

the English position as a model for

reform of Irish law in the area.

The article is in two parts. Part 1 will

sketch the background to the English

legislation, and will analyse the status

of occupiers, premises and entrants

under the English statutory position.

Part 2 (which will appear in the

November issue of the

Gazette)

will

analyse the nature of the duty which

the legislation imposes on the

occupier, the type of damage for

which he can be made liable and

defences which the statute expressly

supplies. It will conclude by

considering whether statutory reform

of the law in Ireland is necessary and

whether the English statutes (or the

rules they replaced) could be used as

a model for such reform.

Background to the English

legislation

English common law proceeds on

the basis that an occupier's liability

Eoin O'Dell

to an entrant onto his land depended

on the category into which the

entrant fell. The common law

analysed entrants into three

categories:

those there (i) by the

invitation, express or implied, of the

occupier

i.e.

invitees, (ii) with the

leave and licence of the occupier

i.e.

licensees, and (iii) trespassers. This

structure was exhaustive and

exclusive,

further refinement was

resisted. No duty was owed to a

trespasser;

a duty to warn of

concealed dangers was owed to an

invitee;

and a duty to prevent injury

from dangers of which the occupier

knew or ought to have known was

owed to a licensee.

Given that so much turned on the

category into which the plaintiff

entrant came, the lines between the

categories became very subtle. Very

often, the Courts elevated

meritorious plaintiffs from one

category to another. This was

especially so in the case of

trespassing children. A trespasser is

one " who goes upon the land

without invitation of any sort and

whose presence is either unknown to

the proprietor, or if known, is

practically objected to".

As a result,

the general principle was that he

who entered wrongfully entered at

his own risk. This left the child-

trespassers without a remedy, so the

Courts would go out of their way to

hold that child-trespassers in effect

were (implied) licensees to whom a

duty could then be owed.

The presence on the premises of a

dangerous object alluring to children

in a place which is accessible to

them does not necessarily of itself

make the occupier liable to a child

who is injured by it, but it may aid

the inference of an implied licence.

Furthermore, where a child is the

licensee of the occupier, then the

"occupier (on the footing that he

knows or ought to know that

pursuant to his implied licence

children are accustomed to frequent

his premises), must, over and above

his ordinary duty of care to

licensees, take reasonable care to

prevent damage to the child from

dangerous things with which he is

liable to meddle".

Therefore, the line between trespasser

and implied licensee was often

manipulated to suit the justice of the

case. However, sometimes it was not

so manipulated, and the patent

injustice of the law was evident.

Thus for example, in

Videan

-v-

British Transport Commission

child, playing on a railway line, was

injured by an oncoming train and his

father was killed trying to rescue

him. The widow recovered in respect

of the death of her husband,

because he was the stationmaster

and was thus lawfully there, but not

in respect of the injuries to her son,

because he was a trespasser to whom

no duty could be owed.

"Therefore, the line between

trespasser and implied licensee

was often manipulated to suit the

justice of the case."

These subtle and often illogical

distinctions brought no credit to the

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