Torts- Occupiers Liability PDF

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Occupier’s Liability: This is the statutory duty owed by occupier of a property to the entrant (certain categories) as per Occupier’s Liability Act 1995. This Act has the purpose to clarify and protect entrants from the dangers existing on property that may result in injury or damage. Prior to the Act (History): • According to McMahon & Binchy the rules governing occ. Liability were being made the occupiers were favoured due to social and economic conditions. • People were supposed to look after themselves and economic resources were not to be inhibited. Basically, the economic product was more important than people. So, the landowners were favoured. • The entrants were categorised based on how useful they were to the employer. The greater the benefit the greater the duty. Examples include: Contractual entrants, invitees, licensees, trespassers. o Contractual Entrants: people who came to the land in pursuance of a contract e.g. cinema patrons. This duty of care was determined by the terms of their contract. In the absence of express terms, there is an implied term on the part of the occupier that reasonable care has been taken to make the premises safe. o Invitees: people who entered the property with the permission of the occupier, SOCIAL GUESTS NOT INCLUDED, e.g. Shop customers or delivery man. The doc. Owed was to take reasonable care against unusual dangers which the occupier (ought to) had knowledge of. o Licensees: people who entered the property with explicit or implied consent, but did not materially benefit the occupier e.g. people in a park or party guests. The doc. Owed was to take reasonable care against concealed dangers which the occupier was aware of. There was no duty to warn of dangers. o Trespassers: people who entered the property without implied or explicit consent from the occupier. Examples: burglar, a child getting a ball. The doc. Owed is to take reasonable care by the occupier (McNamara). McNamara v ESB [1975]: • An eleven-year-old boy climbed into an electricity station and was injured when he came into contact with a wire. The built- up area was acknowledged to be a danger for children. The fence had been broken and was being repaired and ESB knew that children were entering the area. • The SC said that ESB were liable on grounds of foreseeability and proximity, but contributory negligence had been found as the defendant knowingly went into the dangerous area • The judges wanted Donovan v Landy’s Ltd to abandoned and that the occupier’s doc. To trespassers should be restated to better reflect modern concepts of justice. The

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occupier owed a duty of reasonable care to trespassers who were reasonably foreseeable Walsh J – ‘When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser ...it is based upon the duty that one man has, to those in proximity to him, to take reasonable care that they are not injured by his acts.’ Purtil v Athlone UDC and The Herrington case were cited. Since invitees and licensees were never changed by common law, McMahon & Binchy wonder if this case overruled them. As logic dictates that the trespasser shouldn’t receive a higher soc. Than a lawful entrant. So, reasonably they would both be elevated.

The Occupier’s Liability Act 1995: • Three types of entrants are introduced in this Act: (1) the recreational user, (2) the visitor and the (3) trespasser. In the Act the occupier’s obligations to (1) and (3) are reduced. Acc. To McMahon & Binchy farming, hunting and fishing organisations lobbied this Act strongly as they were worried about the loss this could cause them for other’s actions. There was fear that a claim from a trespasser or recreational user could win most of the time (Purthill and McNamara) • One important point is the fact that the Act relates to the STATE of the property not an activity If, for example, an occupier fells a tree or knocks down a wall on his or her land or drives a vehicle there, the activity will be judged by the negligence standard, regardless of the status of the entrant Definitions: • Danger = in relation to any premises, means a danger due to the state of the premises. • Occupier = in relation to any premises, means a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser; • Premises = includes land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains, aircraft and other means of transport; • Recreational activity= any recreational activity conducted, whether alone or with others, in the open air (including any sporting activity), scientific research and nature study so conducted, exploring caves and visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance; Three Categories of Entrant:

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(1) Recreational user means an entrant who, with or without the occupier's explicit or implied permission, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity, including an entrant admitted without charge to a national monument pursuant to section 16 (1) of the National Monuments Act, 1930 , but NOT including an entrant who is so present and is: o (a) a member of the occupier's family who is ordinarily resident on the premises, o (b) an entrant who is present at the express invitation of the occupier or such a member, or o (c) an entrant who is present with the permission of the occupier or such a member for social reasons connected with the occupier or such a member; There is a duty not to injure or damage the property of the entrant intentionally and the duty not to act in reckless disregard for them or their property. A duty to take reasonable care in required in the maintenance of structures which are provided primarily for the use of recreational users. E.g. playgrounds, benches in parks, viewing points, stairways or gates to a national monument. This will not include gates, stiles or other structures which are not primarily used for this purpose. (2) Visitor is an entrant with an invitation or permission (explicit or implied) from the occupier and anything not included in (1) or an entrant of right (Garda or firefighter) Duty of care = An occupier owes what is called “the common duty of care” towards a visitor. This is a duty to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. In essence, the test is that of reasonable care; in other words, the same as the negligence criterion of common law. Note must also be taken of the duty of any other person in the company of the entrant to supervise the entrant, and the care which the entrant is expected to take for his or her own safety.

Heaves v Westmeath County Council, CC, (17 October 2001) FACTS: The P slipped on some rustic steps while walking in the grounds of Belvedere House. The house and grounds were open to the public and the P had paid an entry fee to enter the premises. The P had slipped on a step which contained a slight indentation that was partially covered by moss. The P alleged that he was a visitor for the purpose of the 1995 Act and, as such, was owed a duty of care that had been breached by the D.The Occupiers’ Liability Act 1995, however, has reversed this and has restored the old preMcNamara common law standard, that is, that the duty owed to trespassers is not to injure them intentionally and not to act with reckless disregard to their person or property

Sheehy v The Devil’s Glen Tours Equestrian Centre Ltd. High Court, Dec. 2001. FACTS: The P had entered onto the D’s premises, an equestrian center, in order to avail of the D’s services. She tripped in the doorway of the premises due to a strip of metal that protruded from the ground. HELD: The P was a visitor for the purposes of the legislation. She had entered onto the premises with the intention of availing of the commercial services on offer and had been injured by a defect in the state of the premises due to the D’s failure to take reasonable care. See also Meagher v Shamrock Public Houses Ltd (trading as the Ambassador Hotel) [2005] IEHC 35 An occupier will not be liable to every visitor who is injured because of a danger on the premises. See McMahon J comments in Heaves v Westmeath County Council (2001) outlined in Law of Torts. • •

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(3) Trespasser means an entrant other than a recreational user or visitor. The duty owed is, in respect of a danger existing on the premises, to not injure them or damage their property intentionally and not to act with reckless disregard for them or their property If, trespasser, on property commits an offence, the occupier shall not be liable for a breach of the duty unless a court determines otherwise in the interests of justice. The courts make an exception for innocent child trespassers, if you’re dealing with a child trespasser who is foreseeably attracted to something on the property; a higher duty of care is owed.

‘To act with reckless disregard’: The test as under the common law, is an objective one. S.4.2 outlines what must be considered in determining ‘recklessness’. Note that each of the nine factors themselves will not automatically determine whether a duty exists, they must simply be considered. 1. Whether a danger existed the occupier knew or had reasonable grounds for believing that a danger existed on the premises. 2. Whether the occupier knew or had reasonable grounds for believing that the entrant would be present on the premises. 3. ...Or near the area of danger. 4. Whether the occupier ought reasonably to have provided protection against that danger. 5. The cost of eliminating the risk. 6. The character of the premises and the desirability of maintaining open access. 7. The conduct of the entrant. 8. The nature of any warning given, while there is no absolute duty requiring a warning, such a warning will aid the occupier in his case.

9. The expected level of supervision by others. Williams v TP Wallace Construction and Others High Court, Dec. (2001) 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. Weir Rodgers v The S.F. Trust Ltd [2005] IESC 2 – Considered question of “reckless disregard” Look down further! •

Reckless Disregard – No definition of this term in the act

Addie and Sons (Colleries) Ltd v Dumbreck [1929] Facts: A four-year-old boy was killed as a result of being crushed by the wheel of a haulage system which belonged to a colliery company. The field in which the system was situated in was surrounded by a large hedge, which was essentially ineffective due to the large gaps in it. The grounds were used as a playground by young children, as well as a short cut to a local railway station and this was something that the colliery company was aware of and then often tried to warn them away. The father of the boy brought a claim against the company for the injury that his son sustained during the accident. Held: Defendants found not liable and the plaintiff’s son was deemed to have been a trespasser Why: Lord Dunedin: ‘But if the person is a trespasser, then the only duty the proprietor has towards him is not maliciously to injure him: he may not shoot him; he may not set a spring gun, for that is just to arrange to shoot him without personally firing the shot. Other illustrations of what he may not do might be found but they all come under the same head—injury either directly malicious or an acting so reckless as to be tantamount to malicious acting.’ - Lord Hailsham: “The trespasser comes onto the premises at his own risk. An occupier is, in such a case, liable only where the injury is due to some wilful act involving something more than the absence of reasonable care.” - He continued by saying that there must be some action which was aimed to cause deliberate harm to the trespasser, or at least, some act done with reckless disregard of the premise of the trespasser. Factors to which court must have regard in assessing whether occupier has acted with reckless disregard under section 4(2) of the 1995 Act: “(a) whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;

( b ) whether the occupier knew or had reasonable grounds for believing that the person and, in the case of damage, property of the person, was or was likely to be on the premises; ( c ) whether the occupier knew or had reasonable grounds for believing that the person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed; ( d ) whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person and property of the person; ( e ) the burden on the occupier of eliminating the danger or of protecting the person and property of the person from the danger, taking into account the difficulty, expense or impracticability, having regard to the character of the premises and the degree of the danger, of so doing; ( f ) the character of the premises including, in relation to premises of such a character as to be likely to be used for recreational activity, the desirability of maintaining the tradition of open access to premises of such a character for such an activity; ( g ) the conduct of the person, and the care which he or she may reasonably be expected to take for his or her own safety, while on the premises, having regard to the extent of his or her knowledge thereof; ( h ) the nature of any warning given by the occupier or another person of the danger; and ( i ) whether or not the person was on the premises in the company of another person and, if so, the extent of the supervision and control the latter person might reasonably be expected to exercise over the other's activities.” •

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In Herrington v British Railways Board, ‘I think the word reckless in this context does not mean grossly negligent but means that there must be a conscious disregard for the consequences. In effect, deciding not to bother with the consequences.’ -Lord Pearson The approach in the Herrington case sought to emphasise that a subjective or a mental element is required as a condition of liability. You must, as an occupier, have given some thought to the consequences which may arise but decided you were not going to do anything about it. This is an extremely high burden for any plaintiff to try to prove conclusively. The act is not clear, as there is unequivocal and hybrid language used, e.g. ‘knew or had reasonable grounds’ implies objectivity, but ‘belief’ is inherently subjective.

Impact of the Occupier’s Liability Act 1995: Points of Principle:

1) Current Irish Supreme Court, less likely to find for the plaintiffs than most of its predecessors. In context of occupier’s liability, in finding what is meant by reckless disregard, the courts have pulled back in interpreting the statute in a pro-plaintiff way: - In Weir v Rogers, life was made difficult for the plaintiff. The law is becoming a pro-occupier law. 2) Only relates to the state of the premises, you are allowed to act in self-defence when protecting property. The Act makes no reference to the liability of a landowner resulting from their actions. Smith v Córas Iompar Éireann • The plaintiff went onto a railway line through a wall which had not been kept fully repaired, could point to the train (active) or the wall (passive occupancy) as the basis of liability. • The case was defeated because of insufficient proximity and lack of foreseeability. McMahon & Binchy Book: • When one examines s 4 of the Act, as we have noted, again the test for recklessness connotes objective default rather than necessarily requiring any subjective advertence on the part of the occupier to the risk of injury. • An occupier who culpably failed to discover, or who forgot about, a particular danger will not on that account be relieved of liability. • The Act gives no guidance as to how much lower than negligence the test should be. • The nine factors specified in s 4(2) contain no such yardstick; indeed, they might constitute a trap for an unwary judge, who could easily seek to apply them without adverting to the fact that, although they are similar to criteria applicable for determining the issue of negligence, they have to be pitched at a level more indulgent to the defendant Weir-Rodgers v SF Trust [2005] Facts: • The plaintiff had been injured when she lost her footing as she was getting up from a sitting position and fell down the edge of the cliff “which turned out to be much more sheer than she would have expected”. There was a short stretch of broken-down fencing in the area, as well as some trodden grass which the plaintiff regarded as a path. This led her to believe that people had walked there a good deal. She claimed that she had been misled as to the nature of the cliff and that it had not seemed as if she was over a cliff. One of her friends who had been with her that evening gave evidence that he had not sensed any danger at the time: “... because the sheer drop was hidden from view for a start and the slope looked gradual enough; it did not look like a steep slope

that you would find yourself falling if you fell. It was deceptive.” She sued the defendant occupier for negligence and for breach of its duty under s 4 of the 1995 Act. Held: Succeeded in High Court and was awarded damages (said she was a recreational user), but the Supreme Court reversed the decision. Defendant was found not to be liable for plaintiff’s injuries. Why: • Geoghegan J: [The expert witness] said that any area that is heavily pedestrianised should certainly have some warning signs and that there should also be a fence there as well. I must confess that this conjures up in my mind huge areas of coastline right around Ireland fenced against the public and littered with warning notices. An Oireachtas intention to that effect would seem unlikely but if a statute required it, the courts would be bound to uphold it. • Geoghegan J observed that if the occupier was deemed to have acted recklessly as regards the cliff it would lead to unreasonable results. • The person sitting down near a cliff must be prepared for oddities in the cliff’s structure or in the structure of the ground adjacent to the cliff and he or she assumes the inherent risks associated therewith. • There could, of course, be something quite exceptionally unusual and dangerous in the state of a particular piece of ground which would impose a duty on the occupier the effect of which would be that if he did not put up a warning notice he would be treated as having reckless disregard. But this is certainly not such a case Objectivity/Subjectivity of ‘Reckless Disregard’ • Geoghegan J in Weir-Rodgers: “It may well be reasonable to argue therefore that the threshold is even higher than ‘gross negligence’. I do not find it necessary to express any definitive view on any of this because as I have already indicated I believe that even if the duty was merely a duty of reasonable care and not the previ...