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GAZETTE
NOVEMBER 1993
O 'Keeffe
v
Irish Motor Inns Ltd
([1978] IR 85)
and
Keane v The ESB
([1981] IR 44)..
The Law Reform Commission in this
consultation paper now suggests the
way forward is to reduce the entrants
coming on to a person's property into
two categories: visitors and trespassers.
To visitors, the duty which the
occupiers owes should be a common
duty of care, that is the duty to take
reasonable care. To trespassers,
however, the Commission proposes
more or less to restore -the law as it
existed prior to
McNamara.
The duty of
the occupier to trespassers should,
according to this proposal, be merely a
duty not to intentionally injure them
and not to act with gross negligence
towards them.
McNamara
, it will be
recalled required reasonable care. The
Commission's proposal does, however,
modify this harsh approach by
suggesting that where the occupier
knows of the presence of child
trespassers and furthermore is aware
that a condition or an activity on the
premises creates a danger of death or
serious bodily harm, then the duty of
the occupier should be to take
reasonable care.
The abolition of the distinction between
invitees and licensees was
recommended by this reviewer as far
back as 1970 and this will be supported
by most persons familiar with the topic.
See also report of Advisory Committee
on Law Reform [Prl. 4403, 1974].
It is this reviewer's view, however, that
the proposal for reform in relation to
trespassers is misconceived and is a
lobby driven response to a
misperception of the law as it affects
farmers. Having had the courage to
advance the law in
McNamara
in 1972,
the Supreme Court failed in its
obligations to clarify any uncertainties
which
McNamara
left at its wake and
this uncertainty may have encouraged
farmers' fears in the matter.
The extension of farmers' exposure
since
McNamara
however, is marginal
and surely is a matter which can be
handled by liability insurance.
Insurance companies have shown no
reluctance to extend cover in such cases
and, from what we know, at modest
premiums.
The Law Reform Commission's
arguments against the reasonable care
standard for trespassers as formulated
in
McNamara
, is a general argument
which highlights the weaknesses of the
reasonable care standard as such. It is
an argument that might easily be made
also against reasonable care as a
standard for road traffic accidents,
employer liability claims and the law of
negligence in general. Moreover, it
seems strange and inconsistent that the
Law Reform Commission, having on a
general level refused to recommend it
in the case of trespassers, should now
have no hesitation in recommending the
very same standard with all its
weaknesses, for lawful visitors.
Furthermore the proposals go against
the modern trend in tort liability (the
most recent examples of which are to
be found in the Animals Act, 1985
which in removing the rule in
Searle
v
Wallbank
also adopts reasonable care
as a standard where cattle escape on to
the highway. In the Control of Dogs
Act, 1986, strict liability also features
strongly and in the case of dogs
injuring trespassers, reasonable care is
the standard preferred by the Oireachtas
in that instance (section 21.(3)). It
would appear that the Oireachtas in
recent years has lost faith in negligence
calculus. Furthermore, in the liability
for Defective Products Act, 1991, the
law furthers the policy which imposes
strict liability whenever loss
distribution can be achieved through
price or insurance mechanisms.
Finally, this reviewer found it strange
that no specific reference whatsoever is
made in the consultation paper to the
Report of the Law Reform Advisory
Committee (November, 1974) (Prl
4403) and its recommendation for
reform in this area of law at page (vii).
This Committee, having considered a
long report of this reviewer,
recommended that the occupier should
owe a duty of reasonable care to all
entrants with certain defences available
in the case of trespassers. One might
have expected that the recommendation
of this Committee, which was chaired
by Mr. Justice
Aindrias O'Caoimh,
as
he then was, and which had a wide
representation from both professional
and academic life, including such
eminent scholars as Professor R.F.V.
Heuston, Professor Rory O'Hanlon and
Mr N Osborough should have merited
some consideration in this connection.
It was, after all, the only previous
recommendation by a serious body in
this jurisdiction on the topic. It is hoped
that the Law Reform Commission will
remedy this omission and reconsider its
proposals before issuing its final word
on the matter.
Bryan M.E. McMahon
Textbook on Jurisprudence
By Hilary McCoubrey and Nigel D.
White (London, Blackstone Press
Limited, 1993, ix + 250pp, paperback,
£15.95 Sterling)
j
"I wish unto him the gladsome light of
Jurisprudence."
Coke on Littleton, Third Edition, 1633,
Epilogue, p.359a.
It is only as some of us grow older that
we can appreciate "the gladsome light
of jurisprudence". Wurzel wrote in
"Methods of Juridical Thinking" in
Science of Legal Method: Selected
Essays
that "jurisprudence was the first
of the social sciences to be born". The
1
words
juris prudentia
mean either
"knowledge of law" or "skill in law".
In Justinian's
Institutes
, there is a
phrase that "jurisprudence is the
concept of things divine and human, the
science of the just and unjust". But a
j
writer has characterised this as no more
than a piece of rhetoric. Professor Stone
summed up jurisprudence as
!
"The lawyer's extraversion. It is the i
lawyer's examination of the
precepts, ideals and techniques of
the law in the light derived from
present knowledge and disciplines •
other than the law."
The disciplines in question are most
often philosophy, sociology and
ethics.
353