Occupiers’ Liability (Act 1995)

Question 1

Intro to Occupiers Liability.

Answer 1

This area of law is currently governed by the “Occupier’s Liability Act 1995” and is mainly concerned with the duties, rights and liabilities owed by the occupier to an individual who enters ONTO their property IN RESPECT OF THE DANGERS present in said premises.

Question 2

Occupier’s Liability Under Common Law.

Answer 2

• Historically, the Irish Common Law greatly favored the occupier of the property over the entrant, adopting a NON-INTERFERENCE POLICY when it came to the powerful landowners and their properties.
• Entrants were divided into four categories:

1) Contractual Invitees;
2) Licensees;
3) Invitees;
4) Trespassers.

• Under Common Law, the level of DUTY OF CAE owed by the occupier to the entrant depended on the type of entrant.
• In a general sense, the law provided little to no protection to trespassers back then.

Question 3

Main Concern regarding this area of Law Under Common Law?

Answer 3

• The primary concern, however, involved child trespassers, who most of the time innocently entered occupiers’ properties without their permission.
• The important decision in “MCNAMARA v. ESB” drastically changed the law in this regard. The case involved a young boy who sustained injuries from climbing a broken fence around a transformer. The court found the defendant liable as it was reasonably foreseeable that children would attempt to enter the area and did not take any reasonable steps to prevent such entry or warn them about the dangers present in the premises.

Question 4

Consequences of the decision in “McNamara v. ESB”?

Answer 4

• It was formally established by the court in the decision of McNamara that occupiers owed a duty to take reasonable care of all types of entrants.

Question 5

Occupiers Liability Act 1995.

Answer 5

• The 1995 Act radically altered the law by introducing fundamental changes in this area, including the reduction of the duty of care owed by the occupier to an entrant and the addition of a brand new category of entrant: recreational users.

Question 6

Definitions under the 1995 Act.

Answer 6

• Section 1 of the 1995 Act provides the specific definition of a number of essential factors:

1) Occupier = It defines an occupier as an individual who actively exercises such control over the premises that it would be reasonable to impose on him/her a duty towards the entrant.

2) Danger = It defines danger as any danger due to the STATE of the premises.

• SHEEHAY v. DEVIL’S GLEN DOOR (the saddle of a door, which caused the P to injury himself, was found to be a danger and hazard due to the state of the premises)

3) Premises = It defines “premises” as including land, water and any fixed or moveable structure (including means of transportation such as vehicles and trains).

Question 7

Categories of Entrants under the Occupiers’ Liability Act 1995.

Answer 7

• Section 1 of the 1995 Act also recognizes three diverse types of entrants, which are: visitors, trespassers and recreational users.

Question 8

1) Visitor (1995 Act)

Answer 8

• An entrant by virtue of contractual provision;
• A member of the occupier’s family;
• An entrant for social purposes connected to the occupier or a family member.
• Section 3 (1) of the 1995 Act provides that an occupier has a duty of care to ALL VISITORS onto his property. The duty of care is described as a common and reasonable one.
• HOWEVER, the occupier/defendant may be able to rely on CONTRIBUTORY NEGLIGENCE depending on the particular circumstances of each case.
• Heaves v. Westmeath Co. = The decision in this case delineated the distinction between a visitor and a recreational user. P has paid a fee to enter the premises, which made him a visitor and as such was entitled to a common and reasonable duty of care by the occupier. It referred to a CONTRACTUAL PROVISION!

Question 9

2) Recreational Users and Trespassers.

Answer 9

• Section 1 of the 1995 Act defines recreational users as individuals who with or without consent or implied invitation are present on the premises to conduct a recreational activity (such as hiking, fishing, biking, swimming).
• Trespassers are defined under the 1995 Act as an entrant OTHER THAN a recreational user or visitor.
• Section 4 of the 1995 Act provides that the duty of care owed by an occupier to such individuals (both recreational users and trespassers) IN RELATION TO EXISTING DANGERS ON PREMISES is as follows:

•Duty not to intentionally harm the individual or the individual’s property;
•Duty not to act with RECKLESS DISREGARD for the individual or property of the individual.

• The duty of care owed by an occupier to a recreational user or trespasser is therefore substantially different from the one owed to visitors.
• Under Section 4 of the 1995 Act, recreational users and trespassers are simply owed a duty not to be injured intentionally or recklessly by the occupier.

Question 10

Reckless Disregard (as mentioned in Section 4).

Answer 10

• Section 4 also specifies certain factors that could potentially influence a decision as to whether or not there was reckless disregard on the behalf of the occupier, including:

• Whether the occupier knew or reasonably believed there was danger in the premises;
• Whether the occupier knew or reasonably believed that a person (and their property) was likely to be present.

• McGowan v. Dun Laoghaire = P became paralyzed when he struck a rock when diving from the Forty Foot in Sandycove. D was liable as he knew the rock was not visible from the surface and did not take any action in warning people of such danger.

*Rodgers v. S.F Trust Ltd = P had been sitting near to the edge of a cliff admiring the sunset, and while leaving she fell and sustained serious injuries. A fence surrounding the cliff had been into DISREPAIR and there was no warning signs of the danger in place.

• D was held liable as they were on breach of their statutory duty but the courts also found the P to be contributorily negligent.

Question 11

Reckless Disregard (as mentioned in Section 4).

Answer 11

• Section 4 also specifies certain factors that could potentially influence a decision as to whether or not there was reckless disregard on the behalf of the occupier, including:

• Whether the occupier knew or reasonably believed there was danger in the premises;
• Whether the occupier knew or reasonably believed that a person (and their property) was likely to be present.

• McGowan v. Dun Laoghaire = P became paralyzed when he struck a rock when diving from the Forty Foot in Sandycove. D was liable as he knew the rock was not visible from the surface and did not take any action in warning people of such danger.

*Rodgers v. S.F Trust Ltd = P had been sitting near to the edge of a cliff admiring the sunset, and while leaving she fell and sustained serious injuries. A fence surrounding the cliff had been into DISREPAIR and there was no warning signs of the danger in place.

• D was held liable as they were on breach of their statutory duty but the courts also found the P to be contributorily negligent.