Tort - Occupier's Liability

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Occupier's Liability - Introduction

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The Occupier’s Liability Act 1995 came about due to two competing concerns: (a) that of farmland owners as to the duties owed by them to recreational users of their lands such as hill-walkers and game shooters; (b) that of the recreational users themselves. The concerns focused around the issue of who would have to pay insurance costs in the case of damage.
 LRC Consultation Paper 1993; LRC Report 1994. The Act mostly follows the recommendations.
 The common law had been in a transitional phase for about 25 years prior to 1995, and occupier’s liability was on the verge of being assimilated into the tort of negligence.

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Scope of the 1995 Act

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The Act replaces common law rules governing the “duties, liabilities and rights which heretofore attached to occupiers” in respect of dangers to entrants due to the condition of the occupied property (under s. 2(1)).

The cause of action must have accrued after the commencement of the Act (under s. 2(2)).

Thus, common law principles are no longer applicable. (Controversy over whether old statutory duties which required a common law liability to be shown – are these still valid? Either answer is defensible).

Despite the abolition of common law duties, courts can still apply liability under common law by two methods:

(a) by holding a Def to be a member of a class subject to a special duty. This was done pre-Act to circumvent the common law principles, e.g. Purtill v. Athlone Urban District Council (1968) where occupiers were held to owe a duty they owed a duty, not as occupiers but as custodians of dangerous chattels

(b) by classifying the danger as Def’s activities, thus opening negligence principles.

Quill is unsure whether these methods are contrary to the legislative intention, or legitimate means of achieving justice.

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The 1995 Act - "Occupier"

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s. 1(1): “Occupier” is based on control over the land; there may be multiple occupiers, and their duty is related to their level of control. NB: there may be occupiers on whom the law places duties elsewhere (e.g. the duty of an employer to an employee); these are not covered by the Act, as it related to duties arising from occupation only and should not affect other duties.

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The 1995 Act - "Premises"

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s. 1(1): “Premises” is interpreted widely and includes land, water, fixed or moveable structures and means of transport.

The duties relate to dangers “due to the state of the premises”, mirroring the old common law position, where “static conditions” were covered, but “active operations” were not – Weldon v. Mooney (2001) - these are actionable under negligence.

Problematic: machinery and materials – are these “premises”?

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Purtill v. Athlone Urban District Council (1968)

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: Pl injured when exploding a detonator which he had taken from Def’s abattoir; Def argued trespasser, not owed any duty of care; SC – they owed a duty, not as occupiers but as custodians of dangerous chattels;

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Weldon v. Mooney (2001)

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A boy who fell out of the luggage compartment of a bus onto which he had sneaked for a free ride home could not recover under the Act, as this accident was related to the driving of the vehicle, and not its fixed condition.

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The 1995 Act - Duties to "Visitors"

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“Visitors” are owed a duty “to take such care as is reasonable in the circumstances … to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon”, i.e. a common duty of care akin to negligence.

A visitor is essentially a lawful visitor other than a recreational user:

i. an entrant as of right;

ii. a contractual entrant (excluding recreational);

iii. an invited or permitted entrant (excluding recreational);

iv. a member of the occupier’s family;

v. an entrant invited by a member of the occupier’s family;

vi. an entrant for social purposes connected with the occupier or a family member.

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The 1995 Act - Duties to "Recreational Users"

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“Recreational users” are owed a duty not to intentionally injure them or damage their property and not to act with reckless disregard for their person or propery.

To “act” must be related to the state of the premises under s. 2(1).

Recreational users are entrants whose sole purpose is to engage in recreational activity (who do not qualify in any of the visitor categories).

They may be charged a reasonable amount for parking. They may have entered without permission.

Problematic: people who enter premises for recreation, but contrary to a prohibition by the occupier. If they still qualified as recreational users, this would give recreational users a right to enter any land; Quill reckons the interpretation would not stretch that far; such entrants are probably trespassers.

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The 1995 Act - Duties to "Trespassers"

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“Trespassers” are visitors without any form of authority to be on the premises, who are not there for recreational purposes.

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Williams v. TP Wallace Construction (2002)

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General manager of a firm of building material distributors went to a site where problems had arisen with guttering provided by his firm; everybody was on lunch, so he undertook to inspect himself, and was injured dismounting an unsecured ladder.

Court held: not a visitor as he had no authority to conduct the inspection; not a recreational user as he was on business; therefore a trespasser. His action failed.

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The 1995 Act - Duty to Maintain Structures

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s. 4(4) contains an extra duty to maintain structures (other than entrance gates) in a safe condition. This embraces sports grounds’ dressing rooms and playground equipment.

For recreational users to invoke s. 4(4), equipment must be recreational.

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The 1995 Act - Modification of Duty

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s. 5 provides for duties to be modified by agreement. Duty can be extended by express agreement or unilateral declaration by the occupier. However, duty toward recreational users and trespassers may not be restricted. To restrict the duty to visitors, special conditions must be met: the agreement must be reasonable, and cannot cover strangers to the contract. The restriction can not go as far as allowing the occupier to cause intentional or reckless damage to visitors.

s. 5(2)b: any notice purporting to restrict or exclude liability (toward visitors) must be reasonable and must be reasonably brought to the visitor’s attention.

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The 1995 Act - Liability for independent contractors

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s. 7: occupier liable for negligence of an independent contractor only where knows or ought to know of the negligence, or where the duty was non-delegable.

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Hotel Proprietors Act 1963

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The Hotel Proprietors Act 1963 contains coextensive duties with the 1995 Act in many cases, but goes further in some: proprietors liable for the negligence of independent contractors; stricly liable for damage to guests’ property (although, €127 limit if there is a lack of fault, unless the property was explicitly left for safe custody).

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Standard of care towards Visitors

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Visitors: standard of reasonable care. The court can assess whatever factors are relevant, but two are mentioned in the Act for guidance: (a) the level of care expected of the visitor for his own safety, (b) accompanying visitors and the expect of care and control they can be expected to take. Self-responsibility is more pertinent for adult visitors than for children; also, the second factor suggests that for school tours, the occupier may share responsibility with – or even relinquish it to – the supervisor.

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Standard of Care towards Recreational Users and Trespassers

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Recreational users and trespassers: no intention (this is unproblematic) and no reckless disregard (this is more nebulous).

s. 4(2) gives nine factors in assessing reckless disregard:

i. whether the occupier knew* of the danger;
ii. whether the occupier knew* that the person or property was on the premises;
iii. whether the occupier knew* that the person or property was likely to be near the danger;
iv. whether the danger was one against which the occupier should protect;
v. the burden of prevention;
vi. the character of the premises (e.g. is there a tradition of open access?)
vii. the conduct of the entrant and the level of self-responsibility expected;
viii. the nature of any warnings given;
ix. the level of supervision by persons accompanying the entrant.

*knew or had reasonable grounds for believing.

The problem with this list is the lack of weighting of the factors; the exact standard is therefore unclear.

LRC and Oireachtas failed to provide separately for children, but they are likely to be owed a higher duty than adults.

Main point: cases will probably be decided similarly to existing common law authorities - McNamara -v- ESB (1975), Keane -v- ESB (1981), Smith -v- CIÉ (1991) - post-Act, but interpretation of “reckless disregard” has yet to take shape.

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McNamara v. ESB (1975)

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An 11-year-old was electrocuted in a sub-station in a built-up urban area; the fence was in disrepair and the Def was aware that children were in the habit of climbing in; there were warning signs on the fence.

Held liable; per Quill, this would qualify as reckless disregard.

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Keane v. ESB (1981)

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Another 11-year-old, another sub-station, but in a rural area, with a proper 6’9” fence.

Not held liable; per Quill, probably no reckless disregard either.

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Smith v. CIÉ (1991)

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Pl chasing a boy riding his horse with the intention of beating him up; ran through a gap in a wall left unrepaired by the Def (and often used for access to shops); struck by train.

SC – failed to recover under occupier’s liability, given unforeseeability.

Per Quill: same decision now, given the factor of self-responsibility.

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The 1995 Act - Injury or Damage

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s. 1(1): injury = loss of life, disease or any impairment of physical or mental condition. No further elaboration, so presumably these terms have the normal tort meaning.

s. 1(1): damage = harm to property, loss of property, injury to an animal. “Property” includes any items in possession of the entrant, i.e. also a third party’s property.

Act silent as to pure economic loss, but Quill presumes it is covered (e.g. food vendor at a sport’s ground losing business because of a collapsed stand beside his).

Existing common law princples apply to causation, remoteness and quantum of damages.