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GAZETTE
DECEMBER 1995
Occupiers' Liability Act 1995
by Professor Bryan McMahon*
With the passing of the Occupiers'
Liability Act 1995 a debate which has
lasted in this country for over twenty
years has at last come to a legislative
conclusion. The criticism of this branch
of the law surfaced not only in the legal
journals of the state, but latterly became
a political issue which surfaced in the
popular media as well. Undoubtedly, the
high profile which this branch of the law
assumed in recent years was aided by
the fact that farmers, apprehensive
about their legal position, closed off
their lands to ramblers, hillclimbers,
picnicers and tourists in an effort to
highlight their concerns and protect
themselves from possible suits.
Rightly or wrongly, the farming
community in recent years perceived
that they were vulnerable when persons
were injured on their lands. The law on
Occupiers' Liability had been seen to be
problematic as far back as 1967 when
the matter was considered by the
Advisory Committee on Law Reform
which eventually reported in 1971;
more recently the subject was
considered by the Law Reform
Commission who published a Report on
the topic in April 1994.
The Occupiers' Liability Act 1995 is a
radical reform of the law and is best
appreciated now if it is not viewed in its
historical context. The new Act can be
compared with, and in some instances
echoes the old common law, but it is
better for the practising lawyer now, to
approach the new Act carrying no
historical baggage with him or her.
Under the new law, persons who come
onto another persons premises are
divided into three categories:
(i) "Visitors",
(ii) "Trespassers",
(iii) "Recreational Users".
Briefly speaking, the occupier owes a
duty of care ("the common duty of
Prof. Bryan M.E. McMahon
care") to a visitor, and this duty is
defined in the Act as a duty "to take
such care as is reasonable in all the
circumstances.... to ensure that a
visitor to the premises does not suffer
injury or damage by reason of any
danger existing thereon". This duty of
care is akin to the standard of care in
ordinary negligence, and like the
ordinary duty in negligence it may be
affected by the plaintiffs own
contributory negligence. More
interestingly the occupiers' "common
duty of care" may be reduced when the
injured visitor is on the premises in the
company of another person who may be
expected to supervise the visitor, such
as would be the case where a child
visitor is accompanied by its parent, its
supervisor, or its minder.
By and large a "visitor" means an
entrant who is lawfully on the premises
of the occupier, and is there either at the
invitation or with the permission of the
occupier or at the invitation or with the
permission of a member of the
occupiers' family. It would also include
persons who were present on the
premises by virtue of an express or
implied term in the contract, or persons
who are on the premises as of right.
Such lawful entrants are owed a duty of
reasonable care.
"Trespassers" and "Recreational Users",
however, are not treated so generously
under the Act. To such persons the
occupier owes a duty not to injure such
a person intentionally and not to act
with reckless disregard for their safety
[S4( I)].
In determining whether the occupiers'
conduct was reckless or not, all the
circumstances have to be taken into
account, and specifically mentioned in
the Act are the following circumstances:
(i)
Whether the occupier knew or
should have known of the danger
on the premises;
(ii) Whether the occupier knew or
should have known of the
likelihood of the persons presence
on the premises or their likely
presence in the vicinity of the
danger on the premises;
(iii) Whether the danger was one
which the occupier might
reasonably be expected to provide
protection for the entrant;
(iv) The burden on the occupier of
eliminating the danger, taking
into account the difficulty, the
expense or the impracticality of
removing the danger;
(v)
The character of the premises and
the desirability of maintaining the
tradition of open access to a
premises of such a character for
such an activity;
(vi) The conduct which the entrant
may be expected to take for his
own safety;
(vii) The nature of any warning given
by the occupier;
(viii) Whether or not the person injured
was on the premises in the
company of another person or
under the supervision of another
person.
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