The Gazette 1992

GAZETTE

NOVEMBER 1992

trespasser at a lower level, it also

limits the heads of damage which

the plaintiff may claim.

A reform or clarification by statute

in Ireland which did no more than

to codify the existing law that there

is a duty on occupiers to take

reasonable care in respect of entrants

onto their premises or land, which

emphasised that the concept of

reasonable care is situation-specific,

would be a welcome clarification. It

may go so far as to allay any fears

of being overgenerous to

unmeritorious plaintiff-trespassers by

drawing a distinction between lawful

and unlawful entrants, perhaps

limiting the range of remedies

available to the latter. There

therefore arises the question whether

a statute on the English model is

necessary to achieve this end. It

would seem not, as this is a position

which is well within the potential

judicial development of the current

law. There has been much recent

academic and judicial debate as to

the structure of the tort of

negligence. In Ireland, the early

leading cases on this issue,

viz,

the

judgments of Walsh J. in

Purtill

-v-

Athlone UDC

and

McNamara

-v-

ESB,

are, in fact, occupier's

liability cases, and the (minority)

judgment of McCarthy J. in

Rooney

-v-

Connolly

is the logical

progression from this position. The

attitude to the tort of negligence in

these cases is consistent with, and

prefigures, the judgment of

McCarthy J. in

Ward

-v-

McMaster

which accepts the speech of Lord

Wilberforce in

Anns -v- Merton LBC

as the correct statement of Irish law

on the question of duty of care.

Thus, on the question whether the

defendant owes a duty of care to the

plaintiff, it is necessary to ask,

firstly.

whether, as between the alleged

wrongdoer and the person who

has suffered damage, there is a

sufficient relationship of

proximity or neighbourhood such

that, in the reasonable

contemplation of the former,

carelessness on his part may be

likely to cause damage to the

latter, in which case a

prima facie

duty of care arises. Secondly, if

the first question is answered

affirmatively, it is necessary to

consider whether there are any

considerations which ought to

negative, or to reduce or limit the

scope of the duty or the class of

person to whom it is owed.

The recent Supreme Court decision

Smith

-v-

CIE

which proceeded

on a concession to the effect that the

law on occupiers' liability was based

on the foreseeability and proximity

test,

supplies a clue as to how this

would apply in practice. Here, it was

held that a trespasser was not on the

facts reasonably foreseeable; even

though he used a route on which

some presence was foreseeable: his

was not. Thus, a sophisticated

approach to the principles of

negligence would seem capable of

drawing the necessary distinctions.

Indeed, this is the lesson to be

learned from the Australian

experience. The

ratio

of the leading

case,

Australian Safeway Stores

-v-

Zalona

may be expressed to be

that:

in an action for negligence against

an occupier it is necessary to

determine only whether in all the

relevant circumstances, including

the fact of the defendant's

occupation of the premises and

the manner of the plaintiff's entry

upon them, the defendant owes a

duty of care under the general

principles of negligence. In other

words, it is not necessary to

consider whether a special duty is

owed to a particular class of

entrant.

However, if it is felt that the

illustration provided by

Smith

and

Zalona

is not a sufficient reassurance

to the landowner, it may well be that

arguments like that of Lord Diplock

Herrington

are acceptable as

legitimate policy arguments on the

second leg of the

Anns

principle.

Certainly, the different genesis of the

duty itself is significant. Echoing

Lord Diplock, Lord Reid was of the

opinion that "an occupier does not

voluntarily assume a relationship

with trespassers. By trespassing, they

force a 'neighbour' relationship on

him. When they do so he must act

in a humane manner - that is not

asking too much of him - but I do

not see why he should be required to

do more".

Lord Diplock's

conclusions

from his equivalent

starting point are worth quoting in

full:

First the duty does not arise until

the occupier has actual knowledge

of the presence of the trespasser

on his land or of facts which

make it likely that the trespasser

will come onto his land; and has

also actual knowledge of the

condition of his land or of

activities carried out on it which

are likely to cause personal injury

to the trespasser to make any

enquiry or inspection to ascertain

whether or not such facts so exist.

Secondly, once the occupier has

actual knowledge of such facts,

his own failure to appreciate the

likelihood of the trespasser's

presence or the risk to him

involved, does not absolve the

occupier from his duty to the

trespasser if a reasonable man

possessed of the actual knowledge

of the occupier would recognise

the likelihood of that risk.

Thirdly, the duty when it arises is

limited to taking reasonable steps

to enable the trespasser to avoid

the danger. Where the likely

trespasser is a child too young to

understand or heed a written or a

previous oral warning, this may

involve providing reasonable

physical obstacles to keep the

child away from the danger.

Fourthly, the relevant likelihood to

be considered is of the trespasser's

presence at the actual time and

place of the danger to him. The

degree of likelihood needed to

give rise to the duty cannot, I

think, be more closely defined

than as being such as would impel

a man of ordinary humane

feelings to take some steps to

mitigate the risk of injury to the

trespasser to which the particular

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