The Gazette 1992

GAZETTE

NOVEMBER 1992

Section 1 (1) of the 1967 Act in

speaking of a duty owed to visitors

to avoid dangers clearly contemplates

liability for personal injury from

such danger. Section 1 (3) (b) of the

Act goes on to provide that such

liability also applies in "respect of

damage to property". It has been

held that the entrant can recover in

respect of financial loss consequent

upon the injury or damage to

property.

On the other hand, section 1(8) of

the 1984 Act provides that "where a

person owes a duty by virtue of this

section, he does not, by reason of

any breach of the duty, incur any

liability in respect of loss or damage

to property." In other words, not

only is there a more limited standard

of care owed to a trespasser, his

measure of recovery is also more

limited. All types of entrant can

recover in respect of personal injury,

but it is only where the entrant is a

lawful visitor will he be able to

recover in respect of loss or damage

to property.

(iii) Are there any defences?

In so far as contributory negligence

on the part of the plaintiff-entrant

reduces the amount of the liability of

the defendant-occupier, then it has

been held that it will provide a

defence.

However, of much more

significance are the two statutory

provisions: section 2 (5) of the 1957

Act and section 1 (6) of the 1984

Act. Under neither Act will an

occupier owe a duty to an entrant

"in respect of risks willingly accepted

as his by the visitor". Both sections

further provide that "the question

whether a risk was so accepted falls

to be decided on the same principles

as in other cases in which one person

owes a duty of care to another".

These principles are such that where

the plaintiff has voluntarily accepted

the risk, the defendant will not be

liable. It is much easier to make out

this defence in England than in

Ireland. In Ireland, under statute,

the plaintiff must accept this risk by

means of a written contract, whereas

in England, such an assumption may

be inferred from the plaintiff's

conduct.

The above then is a thumbnail sketch

of the English law on occupier's

liability. The question is whether

reform of Irish law is desirable along

those lines.

Is reform necessary?

In essence the question to be

addressed here is whether the Irish

rules on duty of care ought to be

reformed, and, if so, whether the

English legislation can serve as a

model for this reform. As a

preliminary point, where law is

unclear or unjust, clarifying and

reforming legislation is always to be

sought and welcomed. This was the

case in respect of both of the English

Acts above. The question therefore is

whether there is a need to clarify or

reform Irish law in the area.

The evolving case-law suggests that

there is now, or very soon will be, a

general duty on occupiers to take

reasonable care not to injure any

entrant onto their premises. It would

seem that the justification for this

lies in the development of the law of

negligence from

Donoghue

-v-

Stevenson

through

Anns

-v-

Merton LBC

Ward

-v-

McMasterJ

As a result of this

development, negligence principles

are being allowed to infuse the entire

of the law of occupiers' liability.

However, this has lead to a

perception, in certain quarters, that

the occupier will be liable for every

injury that is suffered by every

entrant, whether lawful or not. This

is misconceived. Although the duty

is to take reasonable care, it must be

emphasised again that what may be

reasonable for one entrant may not

be for another.

In other words,

although the language in which the

duty is expressed is exactly the same,

the law does not require that the

same actions be taken by the

occupier in respect of all of the

potential entrants onto his land.

As Salmond and Heuston observe,

even if an approach based on

Donoghue

-v-

Stevenson

has been

adopted by the common law in

England, "some distinctions between

the various classes of entrants would

have been necessary, for they

correspond to real differences in the

nature of the user of property and in

the reasonable claims to protection

of those who are permitted such

use".

Such distinctions would be

flexible, however, and not rigid

categories. Nevertheless, it may be

argued that, fundamentally, there is

a distinction between those who are

lawful entrants on the one hand and

those who are not on the other. As

Lord Diplock observed in

Her ring ton."

"There is a relevant distinction

between a person who is lawfully on

the occupier's land with the

occupier's consent and a trespasser. In

the case of the former the occupier

has consented to the creation of the

relationship from which the duty

flows; in the case of the trespasser the

relationship has been forced on the

occupier against his will".

It is this distinction which is at the

heart of the dichotomy between the

scheme set up in the 1957 Act and

that in the 1984 Act.

The Occupier's Liability Act, 1957

"as interpreted by the Courts, has

been a noticeably successful piece of

law reform".

Thus, Lord Hailsham

of St. Marylebone L.C. called it " a

little gem of a statute",

and even

Lord Diplock who was initially

opposed to reform by legislation,

later conceded that " it has worked

like a charm".

In fact, the marked

lack of appellate level case law is

indicative of how successful it has

been. It has brought certainty to an

area of the law previously

characterised by technicality and

uncertainty. Much of this is as a

result of the imposition of liability

on licensees and invitees on the basis

of negligence principles. However,

this is a change which the Irish

courts have also achieved. The

perceived problems with Irish law

arise in the context of a potential

over-liberal application of such

negligence principles to the liability

of occupiers to trespassers, thereby,

it is said, broadening the ambit of

liability alarmingly and perhaps

unjustly. If that is the case, then the

1984 Act commends itself. Not only

does it pitch the duty to the

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