The Gazette 1992

GAZETTF

OCTOBER 1992

gave sufficient control for liability to

accrue to the "lessor".

(ii) What are premises?

Again, this is not defined in the

Acts, so again we must turn to the

common law. The concept of

premises is very wide. It embraces all

real property: land, houses and

buildings.

However, it is not

confined to real property but extends

to appliances or objects upon it of

which the plaintiff has been invited

or allowed to make use - for

example, grandstands,

stagings,

ladders,

and, according to the

Northern Ireland case of

McLaughlin

-v-

Antrim

Electricity

Supply Co,

electricity pylons.

However, the legislation is not silent

on the matter of premises, adding

for what it is worth, in section 1(3)

of the 1957 Act that "the rules so

enacted in relation to an occupier of

premises and his visitors shall also

apply, in like manner and to the like

extent as the principles applicable at

common law, to an occupier of

premises and his invitee or licensees

would apply, to regulate (a) the

obligations of a person occupying or

having control over any fixed or

moveable structure, including any

vessel vehicle or aircraft."

(iii) Who are the entrants?

It has been shown above that the

common law divided entrants into the

three categories of invitees, licensees

and trespassers. Under the 1957 Act,

the first two categories are "lawful

visitors". It is to be noted that the

1957 Act did not affect the common

law definitions of invitees or licensees

in any way. (Section 1 (2): the Act

shall "not alter the rules of the

common law as to the persons... to

whom [a duty] is owed; and

accordingly for the purposes of the

[Act] the persons who are to be

treated as... visitors are the same... as

the persons who would at common

law be treated as... invitees or

licensees".) Nevertheless, the effect

was to create two categories of

entrant at common law where once

there were three: lawful visitors and

trespassers. As we have seen, the 1957

Act applied to "visitors" and not to

trespassers. The 1984 Act accepted

the definitions in the 1957 Act, so

that by section 1(2) of the 1984 Act,

"occupier" and "visitor" have the

same definitions as in the 1957 Act.

The 1984 Act deals with entrants

other than visitors (s. 1(3)).

Consequently, the line drawn between

the 1957 Act and the 1984 Act.

At common law, a licence may be

granted either expressly or impliedly,

but one who claims that he is an

implied licensee must show that the

occupier has permitted his presence

and not merely tolerated it:

"repeated trespass of itself confers

licence;... how is it to be said that he

[the occupier] has licensed what he

cannot prevent".

However, the

"mere putting up of a notice ' No

Trespassers Allowed' or 'Strictly

Private', followed, when people often

come, by no further steps, would, I

think, leave it open for a judge or

jury to hold implied permission".

Nevertheless, it would seem that

"there is no duty on [an occupier] to

fence his land against the world

under sanction that, if he does not,

those who come over it become

licensees." As a result of the two

Acts, especially of the 1984 Act, the

impetus to manipulate this line

between licensees and trespassers in

the manner described earlier has

disappeared, and the tenor of

Herrington

is hostile to it.

Consequently, the courts will be

more willing properly to classify the

entrant as lawful or not, because in

either case, if the occupier is in

breach of duty, the entrant will be

able to obtain a remedy.

There is one situation in which this

distinction is vital, where the entrant

crosses the line from lawful visitor to-

trespasser. An entrant is a lawful

visitor only for so long as he is

using the premises for the purposes

for which is is invited or permitted

to be there. This is so even at

common law in Ireland. "When you

invite a person into your house to

use the staircase, you do not invite

him to slide down the bannisters".

If a visitor exceeds the ambit of

invitation or permission he thereby

becomes a trespasser. Again, it is a

question of fact whether in all the

circumstances of the case the

occupier has taken reasonable care to

define the ambit of the invitation

and thus to define the ambit of the

existence and scope of the prohibited

area. If a lawful visitor has strayed

from the area in which he was

clearly permitted to be, the question

is not whether he has been invited to

stray but whether there was anything

to define and delimit the area of

invitation, whether in space or

time.

Finally, it is not quite true to say

that statute is silent on the question

of the definition of an entrant. It

does define one class of entrant as

lawful: "persons who enter premises

for any purpose in the exercise of a

right conferred by law are to be

treated as permitted by the occupier

to be there for that purpose, whether

they in fact have his permission or

no t" (Section 2(6) of the 1957 Act).

Therefore, potentially

any

and

every

entrant onto land may have a right

of action. If it is a lawful visit, it

will be governed by the 1957 Act, if

is not then it will be governed by the

1984 Act.

It ought to be noted that the

definitions of premises and occupier

under the legislation take their

content from the common law. The

Irish common law definitions of

these concepts are at least very

similar if not broadly the same.

Thus, McMahon and Binchy

consider that premises include " f o r

example, platforms, grandstands,

ships in a dock, a gully trap on a

highway, scaffolding... electricity

pylons...[and] moveables such as

motorcars, ships and... airplanes".

Further, they conclude that a notion

of control "is a more useful

yardstick than occupation when one

is determining liability".

Thus, the

enactment into Irish law of these

provisions would make little, if any,

difference.

The remaining questions under the

statutes and the potential reform of

Irish law in the area will be

considered in Part 2.

305