Occupiers Liability

Question 1

What is the duty to care by land owners?

Answer 1

An occupier of land owes a duty of care to those who come on to the land and may be liable to the plaintiff for his breach of duty.

Question 2

What is the Occupiers Liabilty Act 1995

Answer 2

The Act is concerned with injury arising from dangers due to the state of the premises. The Act does not apply to injury arising from activities carried out on the premises.

Question 3

What can the tresspassor rely on for activities carried out on the premisis?

Answer 3

The common law principles of negligence apply to injury caused by activities carried out on the premises or where the injury occurs otherwise than from the state of the premises.

Question 4

At common law, entrants to land are divided into four categories according to the benefit which the entrant conferred on the occupier, with a different duty owed to each category of persons:

Answer 4

o contractual entrants;
o invitees;
o licensees;
o trespassers.

Question 5

What is a contractual entrant

Answer 5

ne who enters the premises under a contract between the entrant and the occupier e.g. patrons of a cinema or nightclub. The duty owed is determined by the contract between the parties. In the absence of express terms in the contract the duty implied is for the occupier to take reasonable care for the safety of the entrant. (See Coleman v. Kelly (1951) 85 ILTR 48.)

Question 6

Meagher v. Shamrock Public Houses Limited

Answer 6

the defendant was liable to the plaintiff in circumstances where the plaintiff was subjected to a random assault outside a nightclub while he was waiting for a taxi in the car park. The defendant should have had sufficient security present at the time in order to discharge its duty to take reasonable care for the safety of the plaintiff.

Question 7

What is an invitee?

Answer 7

enters the property with the consent of the occupier where the occupier has a material advantage in the visit. The this category includes persons entering a shop, a bar or a tourist amenity.

Question 8

Boylan v. Dublin Corporation

Answer 8

Definition of an invitee:

[w]hat is to be looked at is the nature of the purpose for which the visitor comes, and whether the party in occupation would normally have a material interest in visits made for the purpose”.

Question 9

Duty to a contractual entrant v invitee?

Answer 9

The duty owed to an invitee is less than the duty owed to the contractual entrant. The duty requires the occupier to take reasonable care to prevent injury due to an “unusual danger” which the occupier knows or ought to know of. The danger should not be obvious or common on the premises.

Question 10

difference between “unusual danger” and “rare danger”:

Answer 10

Some dangers are characterised as unusual even though they occur with notorious frequency: spillages on supermarket floors, for example. The underlying idea is that the danger is one that the invitee had a right not to expect, though in reality he may well have apprehended that it would occur.

Question 11

Doyle v. Magill [1999]

Answer 11

Thus, the test as to whether the danger was unusual is not a subjective test, but is an objective test taking into account the class of persons to whom the plaintiff belongs. In the present case the plaintiff is a substantial farmer living in the locality. What is alleged to be the unusual danger is that there was an open and unfenced area in front of the basement windows which was not specifically lighted. This is a very old large house of the type which is not uncommon in rural Ireland, and a feature of which is a basement and basement area of this nature. In my view the class of persons to whom the plaintiff belongs ought to have known this, and in my view the existence of an area of this nature is not an unusual danger to such a class of persons.

Question 12

Hall v. Meehan

Answer 12

[K]erbing with sharp rough edges was inappropriate for installation in a school premises where inter alia 6 year old boys would be running and as would be normal falling. Quite clearly in my view the sharp rough edge of the kerbing presented an unusual danger to school children particularly of a tender age on the defendant’s school premises and further I am satisfied that this was a danger of which the defendant knew or ought reasonably to have known as it appears self evident from the photographs that if a child was to fall against the sharp rough edge of the kerb stone an injury was likely to follow and the significance of that injury would be determined by the velocity involved in the impact against the sharp edge.

Question 13

What is a licensee in tort?

Answer 13

comes onto the premises with the express or implied permission of the occupier, but he confers no material benefit on the occupier. Examples include social guests and pupils in school.

Question 14

What is the duty to care to licensees?

Answer 14

The duty owed to licensees is to warn them of concealed dangers of which the occupier is actually aware.

Question 15

What is a concealed danger

Answer 15

a danger that would not be reasonably appreciated by the licensee. It could include something not visible such as a covered hole. It could also include something visible, but which the plaintiff could not appreciate by reason of his age or mental capacity.

Question 16

Rooney v. Connolly

Answer 16

plaintiff was a nine year old girl. She visited a church to light a candle and was injured when she was stretching over a row of lighted candles. It was held she was a licensee and the defendant parish priest owed her a duty to warn her of the “concealed danger” on the premises. The danger which caused the accident was not simply the existence of flames from lighted candles but arose from the juxtaposition of the rows of candles in the candelabra coupled with the relationship between the height of the candelabra and the height of the plaintiff, the necessity to lean over the first row of lighted candles and the difficulty in inserting them into the stand.

Question 17

How is unusual danger different from concealed?

Answer 17

“Unusual danger” means that which one would not reasonably expect to find on premises in the present circumstances. “Concealed” means hidden or deceptive and not readily detectable to a person using reasonable care

Question 18

What is a tresspasser?

Answer 18

comes onto the property with no express or implied right to be there, or who remains on the property after permission to be there has been withdrawn or elapsed.

Question 19

Purtill v. Athlone Urban District Council

Answer 19

boy who had been on the premises of an abattoir and who had stolen some detonators from the premises was injured when he was exploding them at his home. The defendants argued that, since the boy was a trespasser at the time he stole the detonators, they owed him no duty of care in negligence, but rather were required to do no more than refrain from injuring him intentionally or from acting with reckless disregard for his presence. The Supreme Court rejected this contention. The relationship between the parties could be considered in terms of (1) the relationship between the custodian of dangerous chattels and a child, and (2) the occupier – trespasser relationship.

Question 20

What duty of care was established in Purtill v Athlone?

Answer 20

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. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather 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. What amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.

Question 21

McNamara v. ESB

Answer 21

court further developed the duty of care owed to a trespasser. The plaintiff, an 11-year-old boy, having climbed over a wire fence which surrounded an electricity transformer station, was injured when his hand came in contact with a high tension cable. The court increased the level of duty owed for the occupier to take reasonable care to those he knows or ought to know are on the premises. This duty is similar to the duty owed to a contractual entrant.

Question 22

O’Keeffe v. Irish Motor Inns

Answer 22

Irrespective of the capacity in which a person is on another’s land, regard must be had to the actual circumstances and to what in those circumstances is known by or can reasonably be expected from the occupier as to such person’s presence or actions. If the presence of persons on one’s property without permission is habitual and well known, it may well be negligence if one acts in disregard of that fact. It is a question of foreseeability and regard must be had to all the circumstances including, of course, the time and the actual place where the person is at the time of the accident or injury. Indeed the test of reasonable foreseeability is, in my view, sufficiently flexible to cover all such cases where a person is injured on another’s land.

Accordingly, in my view in the circumstances of this case regard must be had to what the defendants would expect or could have reasonably foreseen in relation to the presence and conduct of the plaintiff at the time and place of the accident.

Question 23

Foley v. Musgrave Cash and Carry Limited

Answer 23

in modern times it appears to me that the duty owed by the occupier to an invitee could best said to be to take reasonable care in all the circumstances to see that the premises are reasonably safe for the invitee”

Question 24

Mullen v. Quinnsworth

Answer 24

plaintiff slipped on some spilled oil on the floor of the defendant supermarket, Griffin J held that in that case the plaintiff was an invitee of the defendant on the occasion of the accident. At p 62 he said that as such “the defendant was not an insurer of her safety, but it owed her a duty to take reasonable care, in all the circumstances, to see that the premises were reasonably safe for her”. However, he also said that “whilst this is the general principle which applies in cases of invitees, each case must necessarily depend on its own particular facts.”

Question 25

Liability under the Occupiers’ Liability Act, 1995

Answer 25

The Act supplants the common law rules in cases where the Act applies

Question 26

How is danger defined in section 1 of the Occupiers Liability Act?

Answer 26

defines danger narrowly to mean only “danger due to the state of the premises” and not the activities carried out on the premises.

This means the structural state of the premises only. Not spilled milk in an aisle. But rather a hole in the aisle.

Confirmed in Fitzgerald v. South Dublin County Council [2015] IEHC 343

Question 27

Newman v. Cogan & Anor

Answer 27

he plaintiff was injured when the glass window in a door in the dwelling smashed and broken glass hit her in the eye. Was this a danger due to the “state of the premises”? The Court of Appeal held that there was a danger due to the state of the premises, “namely the door which contained glass that was volatile”

Question 28

Ryan v. Golden Vale Co-operative Mart Ltd

Answer 28

What is a “danger” will depend on the facts of a particular case.

the plaintiff was a child trespasser. While passing through the defendant’s lands the plaintiff was injured by an unlocked gate when his companion swung the gate in his direction as he was passing through.

Peart J held the gate was not defective and did not represent a danger to young children. Furthermore, it would be unreasonable to expect such gates to be locked at all times in a manner that could not be opened by children to avoid causing injury to children who might be tempted to play on them.

Question 29

Allen v. Trabolgan Holiday Centre Ltd

Answer 29

vine J held that the occupier was not liable when the plaintiff took a “short cut” down a grass bank, when she could have used a nearby path and clear access route. In particular, she found there was no obligation on the occupier to take “preventive” measures—like installing a barrier—to ensure a visitor did not chose an unsafe route across its premises.

Question 30

Who is an occupier under the act? Which section is it defined under?

Answer 30

Section 1(1) defines “occupier” as the person who controls, rather than owns, the premises. Where several people control the premises the extent of the duty of care of each occupier depends on their respective degrees of control.

Question 31

Keegan v. Owens and McMahon

Answer 31

Who is an occupier? a community of nuns were found not to be occupiers of a field because, although they had permission to use the field and to run a fundraising carnival there, the management and running of the carnival was controlled by a working committee.

Question 32

What are the three types of entrants under the Act?

Answer 32

visitors;
o trespassers;

o recreational users.

Question 33

Allen v. Trabolgan Holiday Centre Ltd [

Answer 33

plaintiff was on the defendant’s premises as a paying guest so she was properly classified as a visitor. The plaintiff while carrying a child on her back slipped and fell on a muddy path and seriously injured her ankle. The plaintiff was walking towards her chalet along a narrow path which was not tarmacadamed, leading off the main path. The plaintiff slipped on an accumulation of mud at the edge of the path. Charleton

J said (at [10]) that this accumulation of mud at the edge of a path amounted to a danger due to the state of the premises:

Question 34

Kelly v. Lackabeg Ltd. t/a The Arc

Answer 34

the plaintiff slipped on a wet timber floor of a public house near the bar and the ladies’ toilets. The defendant maintained it had an adequate cleaning system in operation on the night. There were at least 425 people present on the premises on the night according to the defendant, and a “two drinks for the price of one” promotion was offered for part of the night. Barr J found in favour of the plaintiff, and said he was not satisfied that the defendant’s cleaning system was “properly implemented” on the night in question.

Question 35

What determines what class of entrant you are under the ACt?

Answer 35

I am satisfied that the logical interpretation of the statute, is that the classification of the entrant as either a “visitor”, or a “recreational user”, is determined by the circumstances in which they enter the property in the first place.

Stokes v. South Dublin County Council

Question 36

Mulcahy v. Cork City Council

Answer 36

plaintiff, an eight-year-old child, suffered an injury when jumping off a large boulder in the green area beside her housing estate. Children were known to play on the boulders, which had been placed there by the council years earlier to discourage unauthorised access.

In relation to the duty owed to visitors, the court noted that the duty of an occupier is not to remove all dangers, only those dangers the removal of which it is reasonable for the law to require. It was held that large boulders do not represent a hidden or unusual danger and that, absent special features, there was nothing particular about the boulders that an occupier was required to provide protection against. The court also noted that it would be unduly burdensome on the occupiers to require them to remove all structures and features which could theoretically be the subject of similar accidents and there would be a social cost to the removal of such features from the landscape, including the loss of opportunities for unstructured children’s play. In the circumstances, the plaintiff’s claim was dismissed.

Question 37

Define recreational user under the act.

Answer 37

Enters the premises with or without the permission of the occupier to engage in a recreational activity.

A recreational activity is an activity carried out in the open air, or any scientific research or nature study conducted in the open air, or exploring caves or visiting sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance.