The Gazette 1992

GAZETTE

NOVEMBER 1992

damage exposes him. It will thus

depend on all the circumstances

of the case . . .

This seems eminently fair. The rule

is no more or less certain than the

statute, and it flows from the

distinction as to the genesis of the

duty which the 1984 Act has chosen

to preserve.

Smith

reaches a similar

result, and thus suggests that the

Irish courts are not in danger of

ignoring this distinction.

One further significant point arises.

The English statutes expressly

recognise the defence of voluntary

assumption of risk. If the English

model were to be followed the

question then arises as to whether

Irish law should also adopt the

English rules on this point or whether

the much more restrictive Irish rules

on the point in general should be

applied. Certainly, a modified form of

either might be appropriate in the

context of trespassers. Although s. 34

(1) (b) of the Civil Liability Act, 1961

abolished the defence generally at

Irish law, a result similar in effect is

not beyond the bounds of judicial

development, if it is argued and

accepted that voluntary assumption of

risk by the entrant in some

circumstances serves to reduce or

negative or limit the duty owed to

him by the occupier within the

meaning of the second leg of the

Anns

principle.

Indeed, in taking

"all the circumstances of the case"

into account, the Supreme Court in

Smith

almost achieves this position.

Conclusions

The emerging Irish system has one

advantage and one disadvantage. The

advantage is elegant simplicity. The

disadvantage is that it can lead to

injustice, or at the very least it can

lead to the perception that it is

unjust. In so far as the English

model is rather less elegant but rather

more just, at least in the context of

trespassers, it commends itself to that

extent as a model which may with

profit be adopted. However, the

common law, flowing from decisions

such as

Zalona

(taking the step

suggested in

Rooney

-v-

Connolly,

applying negligence principles to the

law on occupiers' liability),

Smith,

(on the application of the first leg of

the

Anns

principle), and

Herrington

(supplying policy arguments for the

second leg of the

Anns

principle)

probably constitutes, on balance, an

even more suitable model. It will not

freeze late twentieth century standards

in the law in the same way as the old

categories froze late nineteenth

century categories in the law, and it

is one which is well within the reach

of our courts.

The abolition, in the 1957 Act, of

different types of duty owed towards

lawful visitors is to be welcomed and

endorsed. The imposition of a duty

towards a trespasser in

Herrington

and the 1984 Act was a justifiable

development. The express statutory

recognition of the defence of

voluntary assumption of risk is a

point which any statutory reform or

judicial development of the law of

occupiers' liability would have to

address. Further, the curtailment of

the heads of damage for which a

trespasser may recover is a statutory

restriction which could commend

itself to statutory reform of the law

in this area.

In conclusion, the House of Lords

has emphasised that the occupier is

not an insurer

in the sense that he

is not required to insure against the

whole world entering his premises.

Whatever direction Irish law takes, it

would do well always to keep this in

mind as a guiding principle. Irish

common law already shares much of

the English position, and the

remainder is well within the grasp of

judicial development. However, it is

this judicial development which has

lead to a perception that the law is

unfair on this issue. If statutory

reform does come to pass, and all

that is achieved by it is the

codification of the existing position,

(perhaps taking the opportunity of

adding certain of the attractive *

features of the English legislation),

and as a consequence, the mis-

perception of potential injustice

is dispelled, then it will be

successful.

FOOTNOTES

* Lecturer in Law, Trinity College,

Dublin. This article is based on a

paper presented to the IFA Occupiers'

Liability Conference on April 8, 1992.

Part 1 was published in

Gazette

Vol

86. No. 8 (October 1992) p. 303.

1. In cases such as

Purtill

-v-

Athlone

UDC

[1968] IR 205;

McNamara

-v-

ESB

[1975] IR 1;

Foley

-v-

Musgrave,

Supreme Court, unreported, 20

December 1985;

Rooney

-v-

Connolly

[1986] IR 572;

Mullen

-v-

Quinnsworth

[1990] 1 IR 59.

Smith -

CIE

]1991] 1 IR 314. See generally,

McMahon and Binchy

Irish Law of

Torts

(2nd. ed., Dublin, 1990),

chapter 12.

2. Third Report of the Law Reform

Commission, para. 77., cited in

Salmond and Heuston

The Law of

Torts

(19th ed., London, 1987) by

Heuston and Buckley, at p.305.

3. For a recent Irish illustration, see

Dolan

-v-

Keohane,

High Court,

unreported, 14 February 1992, Keane

4. Salmond and Heuston,

op. cit.,

p.321.

Roles

-v-

Nathan

[1963] 1 WLR 1117,

1122.

AMF International

-v-

Magnet

Bowling

[1968] 1 WLR 1028.

McGinlay

-v-

British Railways Board

[1983] 1 WLR 1427, 1434.

8. The Civil Liability Act, 1961, section

13 (1) (b).

Smith

-v-

Charles Baker

[1891] AC

325;

Merrington

-v-

Ironbridge Metal

Works

[1952] 2 All ER 1101;

White -

Blackmore

[1972] 2 QB 651. See

generally, Salmond and Heuston

op.

cit.

pp; 556 et seq.

10. [1932] AC 562.

11. [1978] AC 728.

12. [1988] IR 337.

13. See cases cited in fn. 1

supra.

14. As for instance in

Smith

-v-

CIE

[1991] 1 314.

15. Salmond and Heuston,

op. cit.

294.

16.

British RailwaysBoard

-v-

Herrington

[1972] 1 All ER 749, 792.