The Gazette 1992

GAZETTE

NOVEMBER 1992

Reform of Occup i er s' Liabi l ity?

- Part 2

by Eoin O'Dell*

Introduction

Against a background of disquiet

with the current law on occupiers'

liability, part two of this article

considers the question whether the

Irish common law on the area

ought to be reformed along the lines

of the English statutes of 1957 and

1984.

Part 1 of this article sketched the

background to the English

legislation, and analysed the

occupier's liability for injury to an

entrant on the basis of six questions.

The first three, as to the status of

occupiers, premises and entrants

under the English statutory position

were considered in Part 1. This part

will continue the analysis of 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.

The Occupiers' Liability Acts, 1957

and 1984.

Of the six questions under this head,

three were analysed in Part 1. The

three remaining are:

(i) What duty does the occupier

owe to the entrant?

i.e.

when

will the defendant be liable?

(ii) For what damage will the

defendant be liable?

(iii) Are there any defences?

(i)

What duty does the occupier

owe to the entrant?

Eoin O'Dell

This is the area in which the Acts

have effected substantial reform

expressly. So section 1 of the 1957

Act provides that the rules enacted

"shall have effect,

in place of the

rules of common law,

to regulate the

duty which the occupier of premises

owes to his visitors". And section 1

of the 1984 Act provides that the

rules enacted "shall have effect,

place of the rules of the common

law,

to determine (a) whether any

duty is owed by [an occupier to]

. . . persons other than his

visitors . . . and (b) if so, what that

duty is."

If the visitor is a lawful entrant in

the sense of being an invitee or

licensee, then the duty is governed by

section 2 of the 1957 Act. By

subsection (1) "an occupier of

premises owes the same duty, the

"common duty of care", to all his

visitors". By subsection (2) "the

common duty of care is to take such

care as in all the circumstances of

the case is reasonable to see that the

visitor will be reasonably safe in

using the premises for the purposes

for which he is invited or permitted

by the occupier to be there". And

there it is: the occupier owes the

same duty to invitees and licensees,

and in essence it is the standard duty

to take reasonable care. In other

words, it is an objective test which

asks whether a reasonable man in

those circumstances would have

acted in the same way as the

defendant. However, the Act does

provide a partial guide to what

would be reasonable in this context.

Thus by section 1 (3) (a) "an

occupier must be prepared for

children to be less careful than

adults" and by section 1(3) (b) "an

occupier may expect that a person in

the exercise of his calling, will

appreciate and guard against any

special risks ordinarily incident to it,

so far as the occupier leaves him free

to do so". In this regard the Law

Commission gave the following

explanatory example:

For example, if a window cleaner

(not being an employee of the

occupier) sustains injury through

the insecurity of some part of the

exterior of the premises which he

uses as a foothold or handhold

for the purpose of cleaning the

outside of the windows, the

occupier merely as such should

not be liable.

Aliter

if the

window-cleaner is injured through

some defect in the staircase when

going upstairs in the ordinary way

to reach the windows on the

upper floor".

There is one more section in the Act

relevant to the question whether the

occupier took reasonable care. That

is section 1(4) which provides that

where the occupier warned the

visitor of the danger "the warning is

not

to be treated without more as

absolving the occupier from liability,

unless in all the circumstances it was

enough to enable the visitor to be

reasonably safe".

One point requires to be stressed.

The duty is a duty to take

reasonable care. It does not impose

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