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GAZETTE
DECEMBER 1995
Section 4, subsection 3 provides that the
occupier does not owe the duty - not to
injure intentionally or be reckless - to
persons who enter premises for the
purpose of committing an offence or
where present on the premises commits
an offence. Such persons can only
recover from the occupier when a court
determines that recovery is "in the
interest of justice".
Part of the reason why the reforms in
this area were brought about was
because the farming community feared
that "recreational users" on their land
and without their knowledge might sue
in respect of injuries suffered as a result
of dangers on the land. It is for this
reason that the Act classifies
"recreational users" together with
trespassers and accords them only the
low standard of care which the word
"reckless" implies. A "recreational
user" is defined in the Act as an entrant
who is present with or without
permission or implied invitation free of
charge, including entrants to national
monuments under the National
Monuments Act 1930, for the purpose
of engaging in a recreational activity.
Excluded from this definition of a
"recreational user" however, are
members of the occupiers' own family
who are ordinarily resident on the
premises and also entrants who are
expressly invited onto the premises or
who are permitted onto the premises for
social reasons by the occupier or a
member of his family. Such lawful
entrants are categorised in the higher
group of visitors.
The recreational user therefore must be
engaged in a "recreational activity" and
this, according to the Act, includes any
such activity conducted in the open air
including any (sporting activity),
scientific research and nature study so
conducted, exploring caves, visiting
sites and buildings of historical,
architectural, traditional, artistic,
archeological or scientific importance.
The scheme of the Act groups
recreational users, as defined above,
with trespassers and declares that the
only duty owed to such persons by the
occupier is not to intentionally injure
them or be reckless in their regard.
There is one exception to this general
rule and that is where a structure or
| premises is provided by the occupier for
' use primarily by recreational users. In
this case the occupier shall owe a duty
! to take reasonable care to maintain the
structure in a safe condition. The Act,
however, makes clear that where a stile,
gate, footbridge or other similar
structure is on the premises, but is not
there for use primarily by recreational
users, the occupiers' duty is not
extended in that case. Accordingly, if a
Local Authority provides a playground
with swings, etc., it will still be obliged
to take reasonable care to make sure that
the structures are maintained in a safe
condition. Farmers on the other hand,
do not have the higher duty in respect of
stiles, footbridges etc., which although
on their property are not primarily there
to facilitate recreational users.
The duty that the occupier owes to
visitors and to trespassers and
recreational users may be extended by
the occupier by express agreement. On
the other hand, the occupier can only
restrict or modify his duty towards
visitors and then, only if:
(i) it is reasonable in all the
circumstances;
I (ii) in the case of an occupier
!
restricting his duty by notice he has
taken reasonable steps to bring the
notice to the attention of the visitor.
i I
In this connection, if the occupier
prominently displays the notice at the
normal means of access to the premises,
he shall be presumed to have taken
reasonable steps in this regard.
Moreover, the restriction or
modification which the occupier
attempts to impose on the lawful visitor
can not fall below the standard due to
5 the trespasser or recreational user. In
other words, the occupier may restrict or
modify the duty to take reasonable care,
but such notice or restriction can not
reduce his obligation below the level
due to trespassers, so that even if he has
an effective notice restricting his
liability he will still owe to the lawful
visitor the duty not to be reckless or not
to intentionally injure them while on
these premises. This is effect is the
| minimum standard owed to all entrants.
Finally, the Act provides that, where the
visitor has been warned of the existence
of a danger, this fact in itself does not
absolve the occupier in all cases, unless
the warning was enough to enable the
visitor to avoid the injury or damage
that were caused. It further provides
(S6) that any such contractual
modification by the occupier will not
bind the entrant who is a stranger to
such contract.
Section 7 of the Act provides that the
occupier of premises shall not be liable
for injury or damage caused by a danger
existing on the premises due to the
: negligence of independant contractors,
! provided the occupier has taken care in
i the selection of the independant
| contractor and ought not to have noticed
; that the work was not properly done.
Finally, it is provided in the legislation
that the Act does not affect any
enactment or rule of law relating to self
defence or liability imposed on the
i occupier in any other capacity, such as
! his capacity as an employer, hotel
proprietor, the hirer of transport, or as a
carrier, or as the bailor in the
contractors bailment, neither does the
Act alter the common law duty imposed
on an occupier for torts committed by
another person where the duty imposed
on the occupier was of a non delegable
nature.
For the practitioner who was raised with
the common law categories of invitees,
licensees and trespassers, and who had
to grapple with some of the technical
rules and concepts such as "unusual
dangers" and "concealed dangers", it
might be helpful to align the provisions
of the new Act with the common law
rules. Firstly the new Act departs from
the traditional classification of entrants
into the following categories of: (a)
Contractual Invitees, (b) Invitees, (c)
Licensees, (d) Trespassers.
The new Act by and large treats the first
three categories now as "visitors", and
extends to them a duty on the part of the
occupier to take reasonable care in
relation to the state of the premises.
Trespassers survive as an identifiable
group, but now under the new Act the
standard of care owed to them is not
that which was given to them in
I McNamara v E.S.B.
([1975] IR 1), but
I rather the old common law standard to
' be found in earlier cases such as
Addie
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