384 / 462
GAZETTE
NOVEMBER 1992
intolerable burdens on the occupier.
3
An action which may be reasonable
if the occupier does it in respect of
one entrant may not be enough to
discharge liability in respect of
another. Consider the following
situation. An occupier is aware that
a specific person will use his
premises for a specific purpose at a
specific time. A danger arises. The
duty of the occupier to take
reasonable care may require him
specifically to warn this entrant. On
the other hand, it may be reasonable
for the occupier to put up a notice
warning of the danger to the general
public, but this may not be enough
in the context of the known entrant.
Thus, the old categories are not
entirely gone, they encapsulated a
truth, one which the concept of
reasonableness, whether under the
1957 Act or at common law in
Ireland, also holds.
Thus the 1957 Act in effect imposes
a duty on an occupier to take
reasonable care for the safety of
lawful visitors. It is to the terms of
the 1984 Act we must turn to seek
the standard of care owed to a
trespasser. According to section 1 (1)
of the 1984 Act the question is
whether "any duty is owed by a
person as
occupier
of premises to
persons other than his visitors
in
respect of any
risk
of their suffering
injury
on the premises by reason of
any
danger
due to the
state
of the
premises
or to things done or
omitted to be done on them".
Section 1(3) of the 1984 Act provides
that an occupier owes a duty in
respect of such a risk if
(a) he is aware of the danger or
has reasonable grounds to
believe that it exists,
(b) he knows or has reasonable
grounds to believe that the
other is in the vicinity of the
danger or that he may have
come into the vicinity of the
danger (in either case whether
the other has lawful authority
for being in that vicinity or
not); and
(c) the risk is one against which,
in all the circumstances of the
case, he may reasonably be
expected to offer the other
some protection.
The interpretation of this section is
crucial to the liability of the
occupier. In particular, the risk of
injury must be one against which the
occupier "may reasonably be
expected to offer the other
some
protection." These are the
circumstances in which a duty can
arise. Section 1 (4) goes on to
provide for the duty which the
occupier will owe to the entrant if
these conditions are satisfied. The
"duty is to take such care as is
reasonable in all the circumstances
of the case to see that he does not
suffer injury on the premises by
reason of the danger concerned".
The intent behind this formulation
was to replace the subjective
Herring ton
test with an objective
one.
Again, what is reasonable will
depend on the facts of the case, and
one of the relevant factors will be
the type of entrant in question. As
Salmond and Heuston observe
"trespasser has an ugly sound but it
covers the wicked and the
innocent . . . although the nature of
the duty is laid down in general
terms, there can be no doubt that
that its content may differ radically
in the case of a small child, for
example, from that of a burglar".
4
Even though the duty is to take
reasonable care in all the
circumstances to see that the entrant
does not suffer injury, two important
related questions, it would seem,
have yet to be answered: if the duty
arises only in respect of risks against
which the occupier "may reasonably
be expected to offer the [entrant]
some
protection" (section 1(3) (c)), is
the duty to take reasonable care
(section 1(4)) satisfied when that
"some protection" is put in place?
Further, is liability for breach of that
duty limited to the extent of that
"some protection" which ought to
have been in place? In principle, the
answer should be in each case that it
should, but it seems that no English
court has yet addressed the point.
Again, the Act provides some limited
guidance as to what can be
reasonable. Thus by section 1(5) any
"duty owed by virtue of this section
in respect of risks may, in an
appropriate case, be discharged by
taking such steps as are reasonable
in all the circumstances of the case
to give warning
of the danger
concerned or to discourage persons
from incurring the risk." It seems
that a clear warning of the risk will
discharge liability in the case of a
trespasser, provided, (one assumes)
that the warning was successful:
where a warning is clearly given, but
the trespasser is a child, it may very
well be ineffective. However, the
different treatment of warnings
under the two statutes is significant.
Under the 1957 Act it may not be
enough to constitute reasonable care
towards lawful entrants, whereas
under the 1984 legislation, it may be
enough to discharge the duty. The
different emphasis is significant,
since it further reinforces the
distinction between lawful and
unlawful entrants.
Under both statutes, however, the
fundamental point to be borne in
mind is that it is the
entrant
who
has to be made safe and not the
premises.
5
Thus for example if the
occupier has a danger on his
property, he need not remove the
danger, merely ensure that an entrant
will not be affected by it, and in so
doing will have taken reasonable
care.
Thus, while both statutes base the
liability to the entrant on the lack
of reasonable care, each has
different ideas about what actually
will constitute reasonable care in
the circumstances. If there has
been a lack of reasonable care on
the part of the occupier, the next
question is for what damage will he
be liable.
(ii) For what damage will the
defendant be liable?
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