Occupier’s Liability

Question 1

what is occupiers liability?

Answer 1

Occupiers liability arises where a person seeks to recover damages against the occupier of land for injuries sustained by him/her while on said land

Question 2

occupiers liability is governed by which area of law?

Answer 2

The law in this area is governed by Occupier’s liability Act, 1995 in respect of dangers due to the state of the premises but continues to by governed by common law in respect of dangers arising otherwise.

Question 3

Contractual Invitees

Answer 3

These were entrants who entered the premises or property under the terms of a contract and the obligations placed on the property owner in respect of the entrant were governed by the terms of the contract.

When there was no specific mention of the obligation, the courts inferred a duty to take reasonable care in respect of any potential contractual invitees.

Question 4

Invitees

Answer 4

Persons the land occupier invited onto his property. The duty owed to such persons was to warn invitees of the dangers known or ought to have been known to exist on the land

Question 5

Licensees

Answer 5

These were entrants whose presence was permitted by the landowner but the owner did not obtain any material benefit from their being there.
The duty owned to such persons was to ensure that there were no concealed dangers upon his premises.

Question 6

trespassers (old common law)

Answer 6

These were entrants who entered a property in the absence of an invitation or permission from the occupier of the property.

The duty owed to such entrants had been held to not to act intentionally or recklessly to injure them where there presence on the land was known or ought reasonably to have been known to the occupier.

Question 7

what did the supreme court hold in McNamara v ESB - trespasser

Answer 7

The SC held that the duty owed to a trespasser should be more onerous than not acting in reckless disregard for person or property.

An occupier owed a duty to trespassers whom he could reasonably forsee and that duty was to take such reasonable care as the circumstances demanded

Question 8

Damage

Answer 8

Under the Act damage includes damage to property, injury to animals, loss of life, disease or impairment of a physical or mental condition and the broad nature of the definition therefore covers personal as well as psychological injury

Question 9

Danger - occupier’s liability

Answer 9

liability under the act is based on a danger which is directly attributable to the “state of the premises” As such the condition of the premises will be the key consideration for the court and where the dangers were caused by something other than the ‘state of the premises’ the provisions of the Act will not apply

Question 10

occupier

Answer 10

for the purposes of establishing liability an occupier is define in terms of control over the state of the premises.

There may be more than one occupier of a premises and in those circumstances the extent of the duty owed will be based on the degree of control and the class of entrant in question

Question 11

premises

Answer 11

This has been given a very broad definition in the Act and includes land and water as well as fixed or moveable structures and various means of transport

Question 12

Vistor definition

Answer 12

An entrant who is present by the permission or invitation of the occupier or his family or a person ordinarily resident on the premises or an entrant present for social reasons

Question 13

trespasser defintion

Answer 13

Persons who do not have the permission or authority of the occupier to be present on the occupier’s land and/or persons who are not using the lands for a recreational purpose

Question 14

recreational User definition

Answer 14

One who is present with or without the permission or implied invitation (free of charge) for the purpose of engaging in a recreational activity.

Question 15

Visitor duty of care

Answer 15

‘Common duty of care’ - duty to take such care as is reasonable in all the circumstances.. To ensure that a visitor on the premises does not suffer injury or damage by reason of any danger existing thereon

Question 16

trespasser duty of care

Answer 16

Owes the same duty of care to a trespasser as he does to a recreational user. A duty to avoid intentionally injuring them and to avoid acting with reckless disregard for their safety.

Question 17

recreational user duty of care

Answer 17

Restricted duty of care to avoid injuring them intentionally and to avoid acting with reckless disregard for their safety.

Question 18

The factors which are taken into consideration to determine whether an occupier had acted recklessly

Answer 18

(1) Whether the occupier knew or ought to have known of the danger on the premises;
(2) Whether the occupier knew or ought to have known that the person or his property was, or was likely to be, on his premises;
(3) Whether the occupier knew or ought to have known that the person or his property was, or was likely to be, in the vicinity of the danger on the premises;
(4) Whether the danger was one against which the occupier might reasonably be expected to provide adequate protection for the person or property;
(5) The burden on the occupier of eliminating the danger, taking into account the difficulty, the expense, and the impracticality of doing so, and having regard to the character of the premises and the degree of danger;
(6) The character of the premises including, in respect to premises of a character likely to attract recreational activity, the desirability of maintaining a tradition of open access for such an activity;
(7) The conduct the entrant might be expected to take for his own safety or property having regard to his knowledge of the premises;
(8) The nature of the warnings given with respect to the danger;
(9) Whether the person was accompanied by another person and, if so, the extent or supervision and control the latter person might reasonably be expected to exercise over the other’s activities.

Question 19

what are the facts of McNamara v University College Dublin?

Answer 19

The plaintiff was walking on a busy walkway and stopped to ask a man for directions. The plaintiff then took a step forward and his knees hit a bollard, which had been concealed by the man who had given directions to the plaintiff. The plaintiff fell to the ground and suffered a fracture to his left radical head. Mr Justice Barr held that UCD were liable for the plaintiff’s injuries as the bollards were a danger to the public a s there were not part of a line of bollards but rather they were isolated bollards

Question 20

Visitors - defences

Answer 20

The act emphasises self-responsibility and whether the entrant was under the control or supervision of another person at the time. It follows then that contributory negligence on the part of the entrant will provide a defendant with a defence to a claim

Question 21

what is a recreational activity?

Answer 21

A recreational activity is defined as including any activity conducted in the open air including sporting activity, scientific research and nature study and the exploration of caves, sites and buildings of historical architectural, traditional, artistic, archaeological or scientific importance.

Question 22

what are the facts of the case of Tomlinson v Congleton Borough Council? - occupiers liability

Answer 22

The court considered the duty owed by a local authority to swimmers in a dangerous area. The council were aware people swam in the lake ad had to put up signs warning of the dangers of doing so. The plaintiff ignored the signs and chose to dive into the lake when he his neck and was rendered paralysed