Thursday, 2 February 1995
Dáil Éireann Debate
Ms Keogh: In my earlier contribution I had pointed to the fact that we had become a very litigious society. We had reached section 4 and I had been saying I was not too sure what the Minister was attempting to achieve in section 4 because section 2 provides for the replacement of the common law rules, a laudable objective, they being obscure, confused and in need of change. However, the Minister has proposed new rules which are also vague, confused and unclear. Therefore, I am afraid the Minister will achieve a result completely opposite from the one to which he aspires. The phrase I used was that, having thrown the common law rules out the window, the Minister was letting them back in by the back door.
All of us know the meaning of the words “reckless disregard.” It is abundantly clear that section 4 (2) needs to be removed if the overall structure of the Bill is not to be fundamentally undermined. My party will table amendments on Committee Stage to that end.
Most people would regard it as abhorrent that a person entering premises with criminal intent, to commit a burglary, arson, assault or to vandalise property, should be able to sue the occupier for damages. Such people do not deserve legal protection and should not get any. The law should presume that having trespassed on the premises,  they have accepted all risks they may encounter. Yet, under the provisions of the Bill, as they stand, the following scenario is possible: let us suppose a building in a dangerous state, due for demolition, is invaded regularly by vandals and one of those vandals falls through a hole in the floor and is injured. If that vandal decides to sue the occupier under the provisions of this Bill the occupier is likely to be held to have known of the existence of the danger. Indeed, he or she is likely to be held to have known of the regular presence of vandals and will be held to have acted with “reckless disregard” for the injured person. The likelihood of this happening is increased if the vandal happens to be a child or young person, when a landowner could well be held to be liable for compensation in respect of personal injuries to the vandal who has invaded his property with the intention of destroying it.
That is not just and surely is not what people want. Therefore, I shall table an amendment on Committee Stage to make it abundantly clear that occupiers have no liability to people who trespass on their property with the intent of committing a criminal act.
Section 7 provides that an occupier shall not be liable to an entrant for injury or damage caused to the entrant or property of the entrant by the negligence of an independent contractor he or she may have employed. While that is a laudable principle, it is hedged with qualifications and limitations which, given the understandable tendency of judges to seek means of accommodating hard cases, ultimately will lead to the principle being “judicially legislated” out of existence. The qualification to which I refer is that the occupier may still be found to be liable for the actions of his or her independent contractor if he or she has failed to take all “reasonable care”. “Reasonable care” is not defined but includes taking steps to ensure that a contractor is competent to carry out the work and that it has been properly undertaken.
 I consider that provision to be quite extraordinary because it could be read as being tantamount to a direction to occupiers of land to carry out a daily inspection of the work of their independent contractor, say, a plumber, builder, or an electrician, to ensure it has been carried out correctly. In addition, if the occupier fails to carry out such inspection, and someone is injured, then he or she may be deemed to be liable. That is absurd and I shall table an amendment on Committee Stage designed to ensure that, in no circumstances, will occupiers be held liable for the acts of independent contractors.
I welcome the Minister having agreed to review the provisions of section 4 (3) because there is no logical base to that subsection. It means that, while occupiers ostensibly are being given the benefit of a lower standard of liability for trespassers and recreational users, that lower standard is suspended when the person injured happens to be a child. In effect this means that farmers and other landowners are none the wiser as to precisely what changes they need to make to their work and safety practices. I would welcome a revision, if not the omission, of this subsection; I know the Minister intends to re-examine it.
There is one area of activity within which children need and should receive special protection. Recently, we were all appalled to read press reports of the deaths in England of a number of children resulting from absolutely horrific fairground accidents. There are a number of recreational activities in respect of which people provide facilities — I stress I am not referring to sporting activities — for children which are inherently dangerous, which is part of the thrill for children, inviting them to use those facilities in return for payment. I am thinking of such places as fairgrounds where such appalling accidents occurred.
New establishments are mushrooming around the country which, for want of a better phrase, I describe as a type of “activity gym”. Young children visit them to use all sorts of potentially dangerous equipment. Such establishments are not licensed at present and there are no standards in terms of the number of children that may be admitted and the type of supervision that ought to be exercised. It is only a matter of time before there is a serious incident. Such establishments owe the children who use them the highest duty in terms of safety and the Progressive Democrats will table an amendment to that effect. In doing so, we are conscious of the need to ensure that ordinary outdoor and sporting activities, adventure sports and school activities remain protected by the provisions of the Bill.
The Progressive Democrats welcome the spirit of the Bill, but regard it as flawed in crucial respects, a number of which I enumerated. As I outlined I will table amendments in that regard. I welcome the Minister's invitation to improve the Bill by way of tabling amendments and I look forward to his co-operation in accepting my amendments on Committee Stage.
Mr. Deasy: We anticipate and expect that drafting legislation will be based on common sense but the difficulty experienced by the Law Reform Commission in advising the Minister on this legislation is incomprehensible to the layman. The Law Reform Commission has sat for approximately four years in an effort to rectify an appalling bad law. As it stands it means that trespassers who injured themselves could sue a landowner or property owner for damages in respect of injuries they incurred. I do not understand why the law has not been repealed before now as it defies the very basics of good sense and good law.
It has meant many historical sights, numerous beauty spots and scenic areas have been closed to the public for a considerable time because, understandably, land and property owners are not willing to take the risks of being sued for  huge amounts of money. The compensation cult here has become so corrupt and widespread that nobody could blame a property or landowner for pro-hibiting people entering property. It has become a racket and operated as such. Some local authorities, Cork Co-operation is probably the best example, have had to pay millions of pounds in compensation to people who lodged falsified claims. It is any wonder that land owners, in particular property owners, do not wish to run the same risk? For the past number of years we have had very bad law. The Bill before us today is an improvement, but it does not go far enough to meeting the justified fears of landowners in particular.
Section 4 (3), (4) and (5) are not satisfactory and I would be less than honest if I said they were. Before I deal with those subsections I wish to refer to the definition section of the Bill which is set out on two pages. The simple word “minor” has not been defined. What constitutes a minor? We have a particular understanding of the word “minor” here as our national games include a minor grade, which at times is almost as important as the senior grades. A minor is a person under 18 years of age. We have all heard of over-aged minors. I know one person who boasted that he played as a minor when he was 27 years of age. Members may recall that Jimmy Doyle played as a minor for Tipperary four years in a row, so he must have been either 13 or 14 years of age when he started to play. Section 4 (3) (c) in particular does not satisfy the demands of property or landowners. It states, that, where the person is a minor, regard shall also be had as to 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 later person might reasonably be expected to exercise of the other's activities. That provision is far too loose and indefinite. If that provision were to be challenged in the courts who knows what judges would decide? If an adult were to bring children across another's property and those children  suffered an injury, the adult's word is likely to be accepted in court as a witness may not have been present when the injury occurred. That provision is highly unsatisfactory and the Bill should be amended to ensure that minors, no matter how young, and regardless of whether they are accompanied, are liable for any injuries they incur. That is a simple and straightforward provision. I know there were divisions within the Law Reform Commission on a number of these subjects not just relating to minors but to adults. There should be no ambiguity or division in this regard, the law should be clear-cut. If another decision is handed down in the High Court or Supreme Court granting a huge compensation award in the case of a child who suffers an injury even though he or she was accompanied by an adult, access to land, historical monuments and beauty spots will be in jeopardy. Landowners will not tolerate the risk of being sued for something for which they are not responsible. That is basic law and I would like the Minister to table amendments on Committee Stage to ensure clarification in this area. The courts will interpret the legislation as they see it. We must frame this legislation to avoid ambiguity and a danger that people may be penalised or made penniless for something which is totally beyond their control.
We all know areas formerly open to the public which have been closed in recent years. The infrastructure for gaining access to historical monuments and beauty spots is seriously deficient. In Great Britain and on the Continent there is a network of stiles and public footpaths with railings on either side. Those rights-of-way are publicly controlled to ensure that people visiting a beauty spot, monument or other place of interest — if they wish to adhere to the law — cannot stray from the foot-path. There is no question of them clambering over gates and breaking down fences to gain access to such places. While it would be costly, we must introduce a system that regularises access to places of interest. At present people  gain access to such sites by climbing over gates and fences causing enormous inconvenience to the landowner. The system must be regularised, but the Bill does not propose to do that.
There is a famous structure — the Metal Main — in Tramore, Country Waterford, which many people visited in the past. A piseog or old wives tale claims that if a girl dances around it three times on one leg — or something like that — she will get married within a certain period. The landowner could not keep animals in the field in which the structure was located because of the many trespassers and for the past 15 or 16 years access to the structure has been prohibited. This happened long before the question of compensating trespassers injured while on such lands arose. Since this problem was highlighted a few years ago many landowners have stopped people from entering their lands and if this legislation is not amended that “obstruction” will continue. Perhaps I should not call it “obstruction” because in general farmers and land and property owners were unnaturally co-operative in the past. Until this anomaly arose, they allowed people access to their lands without objection but now some of them are already preventing people from crossing their lands to gain access to historical sites.
The provision to allow a minor injured while crossing such lands to claim against the landowner is preposterous. The Bill also states that a handicapped person, if injured on such lands, can claim against the landowner. That is unfair. I accept that handicapped people are vulnerable, but there should be an alternative procedure for minors and handicapped people when injured to claim compensation. They should certainly not be allowed to claim against the landowner. While this is vast improvement on previous legislation, it is a recipe for abuse and the racketeering witnessed in urban areas in recent years. When children are injured on lands where an historical site is located the responsibility should lie with  the parents, there should be no mealymouthed halfway house in this regard.
Deputy Keogh referred to the occupier being required to independently prove the competency of independent contractors working on land where a person is injured. That is a ridiculous provision but it is inserted in this legislation. It is unrealistic to put responsibility on the landowner to prove the competency of the contractor and I do not know how that could be applied in law.
This Bill is an improvement on the present position, but it has major deficiencies which must be corrected before the legislation is enacted. The Law Reform Commission referred to constitutionality in regard to compensation for trespassers injuring themselves, but the Constitution must be very complicated and unjust if it can lead to the insertion of such a provision in legislation. I sometimes wonder if we would be better off without a Constitution.
Mr. O'Dea: I welcome the Bill in so far as it goes but one must ask how far it goes. It is an improvement on the approach adopted by the Law Reform Commission which recommended a standard of gross negligence for trespassers. That was a recipe for disaster and it remains to be seen whether the Minister's proposals will improve that position to any significant degree.
This legislation was published late last year and it fell to me to explain its provisions to a meeting of the Fianna Fáil Parliamentary Party. Having regard to the volume of opposition, protest and the number of recommendations for change voiced at that meeting I have grave reservations as to whether, if the previous Government had continued in office, we would have been allowed to introduce the Bill in its present form. This is not the first time legislation on occupiers' liability came before this  House. Members will recall that in 1993 or 1994 Deputy Deenihan introduced legislation on occupiers' liability. The Law Reform Commission referred to those proposals as stark: indeed, they were stark to the point of brutality. They were radically different from the legislation before the House which despite what Deputy Deasy said, and I agree with much of it, is supported by Fine Gael. The previous Private Members' Bill in the name of Deputy Deenihan was supported vocally in the House by the Fine Gael Party and all the Fine Gael Party voted for it. It was radically different from this. It gave no rights to trespassers except the right not to be injured intentionally. What has changed? What has prompted this U-turn? Is this another case like the ministerial advisers and numbers of Ministers of State?
This legislation potentially affects everybody, not just farmers. The definition of “occupier” is broad enough to include every person occupying property, whether or not he owns it, from the humble corporation tenant in some housing estate in Limerick to the large landowner in Country Meath. Every person who occupies any structure or land, be it a cabin, hut, mansion, farm, corporation house or private house except those living with occupiers and presumably the homeless, is affected by this legislation. It will have the widest possible implications.
I am bemused and intrigued by the fact that the major party in Government is prepared to support an approach to the law which is radically and fundamentally different from that which it proposed in Opposition not long ago. In view of the widespread implications of this legislation the House is due an explanation and deserves to be told what has changed apart from the seating arrangements.
I know from speaking with the farming organisations in my constituency that local Fine Gael Deputies promised that the legislation proposed by Deputy Deenihan would be put on the Statute  Book if they were returned to Government. Consequently if the events of last November had not taken place and the Government lived out its life in the normal way I have no doubt, from my discussions with the Irish farming organisation and the ICMSA, that many people would have voted for Fine Gael on the basis of what was proposed in that legislation. Had that happened, given Fine Gael's attitude now, the Fine Gael Party would have got many farming votes under false pretences.
To some extent the legislation is welcome. It certainly brings more balance between the occupier and the entrant. Unfortunately, we are dealing with an area where more than balance is necessary, where there must be some degree of certainty and security in the minds of occupiers. Other speakers have indicated that people accustomed to walking, shooting, and fishing enter people's land and property at the owner's risk. We were inundated with representations — I am sure this is true of all sides of the House — from occupiers, particularly landowners who threatened to stop this activity and erect barriers to keep people out unless the law was changed and the risk factor eliminated. So far as they were concerned they were doing the people who came into their property a favour by allowing them enter their lands and they were encouraging social cohesion and activities which people here have engaged in from time immemorial. All we could say was that it was a complex area of law, the courts had imported many fine distinctions, but the Law Reform Commission, the expert body set up to consider the laws and bring forward sensible proposals for amendment, was examining the matter with a view to bringing forward proposals. When those proposals appeared, almost two years ago, they were a major disappointment. They did not bring sufficient balance into the law which, at least, the Minister is doing and for which I give him credit, and they replaced uncertainty with chaos. We had to go back to the people who had made representations to us and say that  the Department of Equality and Law Reform — staffed presumably by experts in this area — could not support these proposals and would bring forward sensible proposals.
We are now two years down the road and the Bill which has emerged is marginally more sensible but it does not solve the fundamental problem. It does not bring any certainty or security into this area. We are back to the original threat under which people will erect barriers from one end of the country to the other.
If the Minister's intention was to create certainty we must test that intention against what appears in the legislation. If we look at the definitions section we get a clue about what is to follow. The category of entrants established at common law — invitees, licensees and trespassers — had been reduced to two. That gives a certain superficial tidiness to this area of law. The certainty produced by reducing the categories from three to two is much more apparent than real. Let us look at the two categories: visitors on the one side and trespassers and recreational users on the other. What is there to distinguish between a visitor and a recreational user? According to the Bill a “visitor” is somebody whose entry onto property is lawful, while a “trespasser” is somebody whose entry onto property is unlawful. The term “lawful” or “unlawful” is not defined. This is a classic cop out. It has to be either black or white. What does “lawful” mean in this context?
Mr. O'Dea: Deputy Dukes had his chance. He is now on the backbenches and that is where he will remain for the rest of this political life. The farming organisations have represented to me, and I am sure to the Government also, that if “lawful” was defined as entry by  express permission, at least there would be some element of certainty. Here, one duty of care is owed to a visitor while a different duty of care is owned to a trespasser. The question is what is a visitor and what is a trespasser? A “visitor” is somebody whose entry into the propentry is lawful, while a “trespasser” is somebody whose entry is not lawful. The court will decide that. Is this a recipe for certainty? Is this a recipe for creating security in the minds of landowners who voluntarily allow people enter their lands to promote social cohesion, recreation and enjoyment by those people? Therefore, in the definitions section there is a fundamental fault which undermines the entire Bill. It is a classic cop out. The Minister and the Department have funked a major decision to bring certainty into this legislation. They have created an uncertainty which permeates the legislation. Apart from that fundamental flaw there is a number of other peculiarities in the legislation.
The same standard of care is owed to trespassers and recreational users. As Deputy Keogh and others pointed out, there is a difference between a recreational user, who comes to view a monument on a farm, and who takes the trouble to ask permission of the landowner to view the monument and somebody who breaks into a property in the dead of night with the intention to rob, maim or murder the occupant. The same standard of care is given by law to the person with criminal intent as to the person who takes the trouble to ring the landowner to ask if he may go see the monument. I do not know what the draftsman was thinking of in this respect because that is unacceptable and will have to be changed.
Legal advisers to some of the farming organisations have suggested that a measure be incorporated in the legislation to the effect that there would be a rebuttable presumption that injury or damage to a trespasser would be through his own fault or neglect. I do not know the Department's attitude to  that but it seems to be an eminently sensible proposal. It seems even more sensible to distinguish between categories of trespasser, with the criminal on one side and the person who seeks permission to go onto the land for recreational purposes on the other. The Minister may say that by creating different categories we would be creating greater uncertainty, but a reduction in the number of categories may give the illusion of certainty, and it is simply an illusion.
I take the Minister's point on trespassers who are minors. It has been represented to me that at least one major farming organisation received legal advice to the effect that if the separate provisions for minors were not included in the legislation there is a good chance it would still be constitutionally invulnerable. They suggested I put it to the Minister that he leave out these special provisions and, if there is uncertainty about it, allow the Bill to be referred to the Supreme Court under Article 26 of the Constitution. The separate provisions relating to minors are no more than window dressing.
It has been stated that there are other factors which a court would have to take into account in terms of a trespasser who is a minor, namely, the age of the person and their capacity to understand danger. Under the definition “reckless disregard”, those matters would be taken into account. There are seven indicators as to what must be taken into account when deciding whether reckless disregard exists. The definition includes those matters and they would be taken into account. The separate provisions are merely a sop to someone in the Law Reform Commission who had a vague doubt about the constitutionality or otherwise of legislation that does not make separate provisions for minors, but that is only a small point.
The main point is that if a young child or a mentally handicapped person goes onto dangerous property, as Deputy Deasy rightly referred to, have their parents, guardians or institution in which the mentally handicapped person  lives responsibilities in this regard? The legislation states that if they are accompanied, consideration must be given to the care which the person accompanying them should have exercised, but what happens in cases where they are unaccompanied, where parents or institutions let them wander freely in the full knowledge that it is dangerous to go into certain property? These people have no concept of their duty towards the minor involved or the unfortunate landowner who may be liable if the person is injured as a result of going onto the land. Under the legislation such people have no responsibility, but there should be provision in the legislation whereby they are held responsible.
There is a number of peculiarites in the legislation. I do not have time to deal with all of them now but we will tease them out on Committee Stage. For example, section 5 may be interpreted in such a way that a trespasser may claim that an occupier has, by implication, extended the duty of care to him up to and including the common law duty of care, the visitor's duty of of him up to and including the common law duty of care, the visitor's duty of care. A landowner has a certain duty of care towards people who come onto his land without his permission and he should not act with reckless disregard, whatever that means. He may find that by something he has done or said at some time in the remote past his duty of care is elevated to a common law duty of care and he may be successfully sued because of something he has completely forgotten about. That is unacceptable and should be withdrawn.
Section 5 also states that an occupier may restrict or modify his liability to visitors and trespassers by agreement or notice but he cannot do so below the duty he owes to trespassers. If the landowner purports to reduce his duty of care to, say, a visitor, he cannot reduce it below the duty of care he owes to a trespasser, but the section specifically states that he can exclude his duty to visitors. How can you exclude something that you cannot reduce below a certain level? More importantly,  section 5 states that the landowners may exclude entirely this duty to trespassers by notice of agreement. How can something be excluded in one subsection while the next subsection states it will be there anyway by notice or agreement. That seems contradictory and will have to be considered.
The inclusive provisions relating to reckless disregard seem to water down the definition of recklessness which pertains in civil law, and that will have to be considered. The need for certainty here is paramount. Perhaps the Minister should go back to first principles and consider a no fault system in this area of negligence law. There should be a number of changes in negligence law generally and at the very least the level of awards should be controlled. In conjunction with that there should be a no fault system. In Spain there is a system whereby legislation sets out various categories of injury and the level of award appropriate to each category. That pertains throughout insurance law in Spain and the state ultimately picks up the tab. I am not suggesting we go that far but because of the need for certainty in this area the Minister should consider a system of occupiers liability along the lines of the Spanish model.
Under a no fault system the level of awards could be higher for visitors than for trespassers or users of law, for recreational purposes. Those awards should be funded by a levy on insurance companies who are already making a lot of money. The system could be administered by a tribunal such as a watered down version of the Criminal Injuries Compensation Tribunal. I would have no difficulty with the court administering the system because, as Deputy Deasy rightly said, let whoever be liable as long as it is not the landowner.
We must remember that landowners who allow people to come onto their lands for recreational purposes and occupiers generally such as community groups, local authorities and so on who provide common areas, green areas and swimming pools, often to help a new community or people in an urban estate  to get together and meet each other, are doing a favour for potential plaintiffs. I have already given the history as to how we kept people at bay with promises that the Law Reform Commission was considering the matter, how we kept them at bay when the Law Reform Commission failed dismailly in the task allocated to them and how we kept them at bay by telling them that a Commission failed dismally in the task allocated to them and how we kept them at bay by telling them that a Government Department was considering the matter. There must be certainty in this area and landowners must be given security; otherwise defences like the Berlin Wall and barbed wire will be erected and we will have concentration camps. The only difference in this case is that the barriers will be erected to keep people out, not in.
Mr. Dukes: I am tempted to ask Deputy O'Dea if he will put up any barriers around the junkie junction to which he referred last night, but that is a different argument. I am delighted we are at last debating this Bill. It is a matter of great regret to me that Deputy O'Dea, repentant sinner that he is, is present having conspired to prevent a Bill which would have done the job perfectly adequately if it had been passed some months ago. He was not the only conspirator in that case——
Mr. Dukes: Other parties were involved with him. Too much time has been wasted and I hope there will be a conclusion to the process fairly soon. We have been trying for a long time to get action on this matter in the House.
This has become a matter of very serious concern, not only for landowners but for local authorities. Lately a fashion has grown up where people seem to succeed in claims against shopkeepers and supermarkets in circumstances which are rather dubious to say the least. Landowners now believe that to protect themselves they are obliged to restrict entry to their land. It is very  difficult to assess the extent of the danger but there is a clearly perceived risk as the law stands and people cannot be criticised for trying to take measures to shield themselves from a risk which they rightly feel will put an unjust burden on them.
I would like to see amendments to the Bill which will bring it more into line with the provisions of the Private Members' Bill introduced some time ago by my colleague, the Minister of State at the Department of Agriculture, Food and Forestry, Deputy Deenihan. I am not very happy with the Bill as it stands and curiously enough — he might be surprised to hear me say this — I share some of Deputy. O'Dea's concerns, even if his repentance is brought about by the revelation of his negligence in earlier times. However, as they say in the good book, there is more joy in Heaven over one sinner who repents than over ten just men who do not need repentance. I would like to see common-sense coming back into the law on this issue.
I wish to refer to suggestions which have been made since this matter became the subject of public debate, and some of which were repeated by Deputy O'Dea. It is nonsense to suggest that if a landowner or the owner of a premises is not to be held liable properly and justly under the law for injuries suffered by persons going on to their land or property then somebody else should carry the can, whether it is insurance companies, the State under a public liability policy, etc. That is carrying “nannyism” in the State much too far. It starts from the proposition that in some way the State should be responsible for bailing us out of every conceivable kind of trouble we get ourselves into. That is not the job of the State.
If we provide by law that in certain circumstances landowners or the owners of property are not liable for injuries suffered by people entering their property then I see no reason we should feel equally obliged by law to provide that the State has to insure people against their own negligence or that it has in  some way to pick up the tab for the stupidity of people who get themselves into trouble. I cannot see any reason for doing that either in social equity or justice, nor can I see any reason taxpayers should be landed with another bill to protect people from the consequences of their own imprudence.
I wish to refer to some of the common sense provisions. When we accept the right to private property, which is enshrined in our Constitution, we necessarily accept that the owners of that property have the rights to control who enters it. We may make provisions in law which prevent them from discriminating on certain grounds and at certain times but the essential principle should be that if I am the owner of property then I can say who may enter it.
There should be only two categories of persons who might be found on property, people there with the consent of the owner of the property, however that consent is given — we can make provisions for that — and people there without the consent of the owner of the property. If we are to lay obligations, as it seems we must in social justice and equity, on the owners of property in relation to people entering it then they must surely relate to people who are there with the consent, either express or implied by some agreed set of circumstances, of the owner, and if people are on the property without the consent of the owner then the owner should not owe that kind of duty to those persons. I was confirmed in that approach by the Law Reform Commission in its report on occupiers' liability — report No. 46 of 1994 — which basically makes the case that legislation should provide for two classes of entrant, visitors and trespassers. That is a very sensible way of dealing with this matter.
The position is fairly clear and staightforward in terms of people entering private property. It does not seem to be enormously difficult to provide for a similar categorisation of persons who enter public property. In the case of property or building belonging  to the State or a public body we can make rules which provide for the conditions under which people may enter that property and, if we wish, we can make rules for the conditions under which people are forbidden from entering that property. We can apply the principle of two categories of entrants to public property as we can to private property. There may be some problems in the case of common land, and I will refer to that point later.
If there are only two categories of entrant then visitors should be owed, whatever our definition, the common duty of care. This issue is dealt with by the Law Reform Commission in report No. 46 of 1994. Recommendation 7 on page 38 states: “Except to the extent that it may be varied by the exception to be made for recreational use, there should be a common duty of care to all visitors”. I do not agree with the idea that an exception should be made for recreational use — I will refer later to this point — but there should be a common duty of care to all visitors. This means that the same common duty of care should not extend to trespassers. That is a common sense approach to this issue, based on what our concept of private property is about. There may be a duty to others. In this legislation and in most of the work which deals with this type of legislation it is said that in relation to people who are on land or other property without the consent of the owner, there is a duty not to injure them intentionally or act with reckless disregard for them. It has been well said by Deputy O'Dea and Deputy Deasy that there are problems with the definition of “reckless disregard” but at least there should not be circumstances in which they would be injured intentionally.
We have to have regard to what is the normal use of the property concern. Let us take the case of a person who is a trespasser who is on land without the permission, express or implied, of the owner. I like walking or riding whenever I get the opportunity and one of the places I like to walk is the Burren in  County Clare. If one has any sense, one will have some regard to the use of the land there.
Often one will find that one of the enterprises carried on by farmers in the Burren area is running suckler herds. At various times of the year one will find a bull running with a herd of cows. That is a legitimate use of the land for the landowner and if one imposes on the landowner a duty not to injure persons intentionally, even if they are there without his permission, what will this mean? It cannot mean that one should not run a bull with a herd of cows because this is a legitimate and valid farming enterprise which the landowner has every right to pursue but it is dangerous to enter upon those lands, particularly if people do not know how bulls behave in such circumstances. They can be difficult customers at the best of times, particularly at the end of the mating season. Some months ago I heard an interesting discourse on this topic on the “Gay Byrne Show”. At the end of the mating season when all the cows have been covered and full the bulls become even more bad humoured because there will be no more fun for the rest of the season.
There is another difficulty of which people should be conscious and a great many users of land are not. It is a hardy thing to do to enter a farm or land where there is a herd of suckler cows with calves at foot even if there is no bull around, because a suckler cow with a calf at foot can be a contrary customer too. Again, this is a legitimate farming enterprise and the owner of that land or herd is not intentionally putting people at risk of injury by having his herd of suckler cows there with calves at foot with a few more calves to make up the balance. He or she is carrying out a legitimate farming enterprise but it carries a risk for people entering that land. We have to make provision for the normal valid uses of property in such a way that it does not give rise to an extra risk on the part of the property owner or occupier.
 It is provided that the occupier should be able to modify the duty he or she owes to persons entering land by means of a notice. The Law Reform Commission recommended this but I am not sure that it is provided for in a comprehensive way. What is a notice? How does one give it? Where should it be placed? Deputy Deasy spoke about a particular construction in County Waterford where the difficulty the landowner had was that people were approaching it from a number of different points on the perimeter of his lands. Is it reasonable to ask a property owner, if there is a risk or if he wants to modify his duty to entrants on the land, to put a notice at every conceivable point where people might enter? I do not think it is. Should the property owner be allowed to modify his duty of care towards those persons by putting a notice at the most convenient point of entry? I can foresee endless arguments about that but it is within the rights of the property owner to decide not only who may enter the land or property but where they may enter. We cannot require him to have a stile on every ditch, a gap in every hedge or a set of steps at every gate to allow people enter property without incurring extra risk or being able to use his legal right of modifying the duty he owes to persons.
Reference is made to a category of recreational user. I am not sure if it makes much sense to add this extra complication. I could not make out whether Deputy O'Dea was for or against this; perhaps we will have another opportunity to hear more but I am not sure why we should make that distinction. Most people who are not involved in farming, if they enter a farm other than for the purpose of business or having a conversation with the farm family, are there for purposes of recreation. A person who walks across a field, who goes there to shoot or horseride or who crosses it to get to a river or stream is a recreational user — all are running a different risk and doing different things.
 I speak as a recreational user; I think I am running little risk if I walk across a field, a slightly greater risk if I ride across it and an even bigger risk if I carry a shotgun across it. I am not an angler and I have never carried a fishing rod across land but I can imagine that there are a few dangers involved, especially if one is with somebody else. A few nasty accidents have been caused by people who were not careful in the management of their fishing rods.
I cannot see why we should make a distinction unless we are going to distinguish between the different burdens of care on the landowner in relation to those users. If people are doing something that is inherently dangerous or carries its own risk they have a duty to insure themselves against that risk without putting the burden on the landowner. I can see no justice in putting any extra duty of care on a landowner if I am riding a horse across land rather than walking across it. There is a bigger danger that I will fall and break my neck if I am riding a horse than if I am walking but that has nothing to do with the landowner and is a risk I assume. This has not happened so far; my neck is perfectly solid and strong enough to withstand such a fall but it could happen.
We have all read about the dangers of carrying shotguns across land. How many people have been accidentally injured or killed because they did not take proper care in carrying shotguns? The more we consider this the more the different definitions of use create extra complications in a way which is unfair to landowners.
I warn again against the idea of insurance. Over large parts of the country people are prevented from entering lands which are publicly owned because the agencies state they have a problem with insurance. Partly for this reason and partly for sheer bloody-mindedness the Office of Public Works will not allow people to ride horses along canal banks. In many parts of the country Coillte will not allow people ride horses through its woods because it is afraid of  what might happen if ordinary pedestrians or picnickers come into contact with a group of riders, there is a schemozzle and someone gets injured.
We can resolve that problem by putting the duty to provide insurance, if such there be, on to the people themselves. As I travel around the country I hear reports of more cases of Coillte property being closed off with gates or little stiles to allow pedestrians pass through. That is totally unsuitable for people who are unable to walk long distances to enjoy some of the loveliest parts of our country. It is done because the authorities are concerned about the kind of duties that are put on them and that will continue to be put on them by this Bill.
There is a definition of “occupier” in the Bill which seems to be totally unsuited to the situation that arises on farms because the “occupier” includes people who control, share control or have part of the control of lands. The effect of that provision could be that not only would the owners of premises have obligations put on them by this Bill, in whatever form it is finally passed, but members of those families could have the same obligations put on them. That is utterly unsatisfactory and it creates more of the uncertainty referred to by Deputy O'Dea and which I agree we should remove.
I am arguing that there should be only two classes of entrant — visitors who are there with the express or implied permission of the landowner and people who do not have that permission — we could avoid the infelicities of the fact that in this Bill, when we speak of people being unlawfully on land, we give no definition of what is unlawful. I hope there will be a number of amendments to the Bill to remove those problems.
Mr. Clohessy: I welcome the Bill because it addresses controversial issues which have caused concern to many people in recent years. The problem of  occupiers' liability in relation to property has been the subject of serious debate by various interests. Central to the presentation of this Bill has been the role played by farming organisations in highlighting the fears and concerns of their members. It would be unwise, however, to view this Bill as solely addressing the interests of the farming community. I would prefer to regard it as a means of introducing stability and common sense into an important aspect of national life. The Bill should not be confined to a narrow view of the problem of insurance liability but it must take an overview of the entire situation in regard to national monuments, visitor access and, of course, the tourism industry. It is important that there is balance between the genuine fears of farmers and the free access to important sites of national heritage throughout our country.
The central fear of the farming community, that those who injure themselves while crossing land or visiting local monuments may sue the landlord, is addressed in the Bill. This issue has been to the fore in recent times and has helped focus the necessary attention on the problem. For many years farmers and landowners have waged a campaign to change the law on public liability whereby members of the public would be liable for their own injuries. We are aware that the farming organisations have described the law as unfair. The strength of feeling among the farming community was demonstrated by the decision to ban all visitors from some historical sites in various parts of the country. The Bill focuses on the main areas of difficulty caused by outdated laws and we, as legislators, must take into account changing times and social developments and enact laws which reflect the reality of our society. I welcome the Bill, therefore, with some important qualifications. The fact that many of the recommendations in the report of the Law Reform Commission on occupiers' liability are included  should reassure those pressing for change in the law.
A number of important areas, however, revolve around the whole issue of insurance liability. These matters should be considered carefully as we must approach any change in the law with a serious purpose and an appreciation of how the new law may be applied in all possible circumstances. We are all aware of the uproar and social division with regard to the recent changes in the drink driving law and how it has divided the country on a rural-urban basis. If a new law is to be applied it must be enforced in all the country. The purpose of this Bill is to update the common law but we must ensure that we do not create potential areas of conflict between rural and urban dwellers.
Unfortunately, insurance liability is not only confined to the rural community, although that may have been the perception because of the vocal campaigns waged by the farming organisations. The problem of liability affects the entire spectrum of national life and it has become a notional scandal. We, as a nation, must ask ourselves how this problem has arisen in such a short space of time. We can all remember a time when there was free access over farming land to many recreational areas including beaches, historical sites and national monuments. While I have no wish to recall those far off days with a nostalgic glow, I believe that under the common law principles there was an awareness by both sides of their obligations and responsibilities.
I will illustrate my point by referring to the Lough Gur project in County Limerick which is visited by thousands of people every year. The whole area is an important site from an archaeological and historical perspective and it attracts students from all over the world. The access to this land is privately owned but for generations people have visited the vicinity to see where people lived thousands of years ago. There was never any problem with access and visitors respected the rights  of the farmers by closing gates and observing the basic safety rules of land use. For many generations, from grandfather to grandson and granddaughter, the people of County Limerick travelled to Lough Gur for a day out or a picnic by the lake. Not only was the day out a pleasant occasion, it was also an educational experience for young children as it brought them in touch with the farming community. Young children are also taught to appreciate the rights of passage over farming land. They co-operate with the farmers by closing gates and everyone is happy in those circumstances.
The fact that most of our important national monuments are located on privately owned land serves to highlight the importance of regulating the common law principles which to date govern occupiers' liability. During the campaign by the farming organisations. local people and tourists were banned from entering certain lands in order to gain access to historical sites and important monuments. We must ask ourselves, therefore, how this conflict arose and what series of circumstances led to the breakdown in the traditional approach to access across farm lands.
I have no wish to conjure up images of nostalgia or to harp back to the pages of Alice Taylor's book “To School Through The Fields”, but we have moved on from what was a traditional right-of-way to a situation of fear, distrust and confrontation. We must ask ourselves why this conflict has arisen, what are the underlying reasons for it and what does it tell us about our society or our future.
In my area of County Limerick farmers tell of the tremendous pressures on them from insurance companies to ban people entirely from their lands. The hard line approach of insurance companies, coupled with the sharp eyed solicitors, make a deadly duo and they are largely to blame for the present problem where litigation is the first option open to people who may suffer injury due to a series of circumstances. It is difficult to ascertain where this set of circumstances  first emerged but I have no fear in laying the blame at the door of some insurance companies who are placing farmers under severe pressure due to the fear of increased premiums. We must also examine the role of many solicitors who advise people to take court action under the present unclear law. This emergence of the liability mentality is set to create a new mini industry where every pothole or broken pavement is a potential source of income.
We are all aware of the scandals involving claims against public bodies and the consequent enormous rise in the cost of premiums. This type of activity is akin to a conspiracy against the people who, at the end of the day, have to pick up the tab by having to pay higher premiums. The liability mentality is a distasteful and greedy aspect of social change. A small group of solicitors have encouraged claims against landowners, farmers, supermarkets and public bodies who are seen as a soft touch. Hardly a day goes by without some such claim being made. This must stop. We cannot afford to go down this road of litigation and confrontation. Common sense must prevail.
The fear of liability has caused considerable concern to many people. Even parents are afraid to invite young neighbours to their homes. The chance of an accident is now uppermost in their minds so that even the neighbourly inter-home visits of children takes on a new and frightening dimension.
Although this Bill is welcome, there are areas of concern. Why are those under 18 years of age excluded from its provisions? In converting the common law into legislation for the Statute Book we must be mindful of the application of the new law. While there are obligations on landowners to keep their property in a safe and reasonable condition and to take adequate precautions to prevent accidents, we must also address the responsibility to the owner by those who have access to private land to, for example, close gates, take all reasonable care and obey warning signs.  This Bill imposes duties on the landowner, and no one would disagree that warning signs of danger must be posted. However, some people will ignore even the most sophisticated warning signs and behave in an unthinking and reckless manner. It is in this area that some of the difficulties of the Bill become obvious. I have no doubt that during this debate some of the flaws in the proposed legislation will be highlighted. Even young people can contribute to causing accidents. Why then should they be treated differently?
The same liability mentality is to be found in a variety of urban settings ranging from potholes and broken pavements to specially arranged accidents involving two or three motor vehicles. I would not like to give the impression that because the farming community have strongly pressed for a change in the law, and at times have even banned tourists from heritage sites, this is a source of conflict between rural communities and others. This is not so. The problem is widespread and if this Bill goes some way towards curbing the scandal of questionable liability claims it will be worthwhile.
I welcome the Bill and hope the Minister will take account of our reservations. We must be mindful of the application of the law and how it applies to the community. We cannot afford to create more social division such as we have seen in regard to the drink driving laws. Let us now examine all the questions raised and the serious doubts expressed by the speakers who contributed to the debate. I urge the Minister to take careful account of all our views.
Mrs T. Ahearn: There is general welcome for this Bill on all sides of the House, and it is time we put the principles of occupiers' liability on a firm statutory basis. I hope this legislation will bring to an end the sleepless nights and the constant worry and unrest caused to occupiers generally who never know when a claim will be made against them that could ultimately have the  effect of putting them out of business. Under present legislation landowners and occupiers pursue their business with what I would call a lethal death sentence hanging over them, a sentence which they cannot avoid if circumstances so determine, for which they need not commit an offence and against which they have no legal protection. It is not logical that landowners can be held responsible for injuries incurred on their property to people whom they never invited on their land and whose entry to their property they had no knowledge of. This is unfair, unreasonable and potentially dangerous for the occupier.
The tardiness of successive Governments in confronting the issue of public liability is inexcusable and inexplicable. The lack of urgency in addressing this grave injustice to occupiers is intolerable. The basis of our judicial system, to which we all subscribe, is that the penalty should fit the crime. However, landowners are subject to the severest of penalties without having committed any wrongdoing. A farmer could lose his farm as a result of a claim by a trespasser against him. The present law is outdated and archaic and I am glad that the Government's Bill will improve the situation. The real mystery is that some landowners have not paid the ultimate price of being forced out of business because of the present system. However, that possibility remains and that is why this legislation must pass quickly through the House. It will provide much needed protection for occupiers of land against claims by trespassers and other users.
The Bill will create a climate where occupiers will not be deterred or discouraged from making their land available for the benefit of others by the constant fear of being sued for personal injuries. The preparation time for the Bill was comparatively short, but too much time was allowed to pass with no attempt to address this issue, this was inexcusable. We must realise that farming methods have changed and are constantly modernised. This means there is more and more machinery in every  farmyard, and every machine is potentially dangerous. Newer and better technology is helping farmers to cope with farm effluent, and faster and better ways of production are now in use. All those bring new dangers and are a threat to farm safety unless care is taken and people are aware of the inherent dangers.
In a time when there is greater potential for serious accidents than ever, I am glad that all farmers take farm safety seriously and take measures to protect themselves, their families and workers — people who appreciate the inherent dangers of modern farming methods. What makes life intolerable for farmers is the effort to protect intruders who have little or no understanding of the potential dangers of modern farming practices.
I am delighted to be able to say that farmers have become very conscious of safety on the farm. Members may know that an excellent awareness programme and safety campaign has been initiated and followed up by the many farming organisations and Teagasc. Nonetheless those involved in farming know that safety will only be a real priority for those involved in agriculture and will never be fully appreciated by those outside the industry. I suppose it is reasonable to say that it is hard to expect those outside the industry to realise the many dangers. It is not only difficult but almost impossible for farmers to impress on visitors the need to take safety precautions on farms. In spite of superhuman efforts by landowners to ensure safety claims may be made against them for accidents to persons who have no real understanding of the industry.
This legislation is urgently needed. I was very proud to support a similar Bill tabled by my colleague Deputy Deenthan, in June 1993 and was most disappointed as were many others, that the Bill was defeated. The lack of adequate legislation for occupier's liability which has given rise to an increased number of claims has jeopardised job creation in tourism, sport and business interests in  rural Ireland. The threat to landowners from personal injury claims could close down the Irish countryside to all rural activities and is having serious consequences for tourism and sports. It would take only one serious accident as a result of which a farmer suffered financially from a claim by an unwanted visitor or trespasser to make people realise how right they are to be very cautious about whom they allow on their property. I agree with my colleague Deputy Deasy that landowners have co-operated in the past. I am aware of the generous welcome extended by farmers to people who wish to go shooting, fox hunting, beagling or just walking over their land. Farmers and landowners must be admired for their generosity in adverse circumstances.
The farming community should be able to extend a welcome to the sporting and outdoor leisure organisations without being exposed to clearly unjustifiable liability. That is a threat they constantly face. Landowners can go about their daily business without knowing that an activity on their property may have a disastrous effect on them. Frustration with successive Governments' failure to confront this problem has forced many farmers to fence off important historical sites on their lands. If this lack of legal protection is allowed to continue I have no doubt that many more monuments will be fenced off and people will not be able to visit them. I understand that at least four sites have been fenced off and the implications of this trend would be disastrous for tourism. Landowners do not want to be forced into a corner where for their own protection they have to refuse entry to their lands.
I am glad this Bill will mean they will no longer have to resort to such measures and will no longer have to justify their stance. For generations people have been welcome to visit monuments but farmers have extended this welcome under an enormous burden of responsibility, that is, the threat of a personal injury claim against them.
 This Bill is not the ultimate solution — one may ask could any Bill be the ultimate solution — but it is an improvement as it provides protection for landowners. It deals adequately with the duties and responsibilities of occupiers and I am glad a distinction has been made between the static condition of the premises and the activities conducted on them. It clearly states that an occupier's responsibility will relate exclusively to dangers on the premises. I welcome also the comprehensive definition of the word “premises”. Even though I speak from an agricultural point of view, I am glad the scope of the Bill is much broader than just agricultural land.
However, I have serious reservations about a section dealing with the responsibility of the occupier to children or to “minors”. I am glad the Minister referred to this in his address to the House because he as well as all of us is aware of the concerns about this section. Many farmers may justifiably feel that the inclusion of this section places a burden of responsibility on them to look after children. It is impossible for any landowner to secure his lands against the possibility of an accident involving children. After all, parents find it next to impossible to make their homes safe for children, never mind the difficulties of making land and premises safe for them. Even though the Minister has reassured us I harbour those concerns as there is still a broad responsibility on the shoulders of occupiers for the safety of children. The Bill states quite clearly that in relation to minors two factors will have to be considered: their age and ability to appreciate danger. I accept that occupiers must have a common duty of care but to provide this at a level neccesary for minors will be extremely difficult, if not impossible. The real problem will arise when children come on to the premises unknown to the owner thus making precautionary advice impossible. Far too often parents do not take responsibility for their children's actions. If this Bill  places that onus of responsibility on the shoulders of landowners it will encourage that trend.
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