The Gazette 1992

sep T em BER 1992

GAZETTE

Reform of Occup i er s' Liabi l ity?

by Eoin O'Dell*

his own risk. This left the child- trespassers without a remedy, so the Courts would go out of their way to hold that child-trespassers in effect were (implied) licensees to whom a duty could then be owed. The presence on the premises of a dangerous object alluring to children in a place which is accessible to them does not necessarily of itself make the occupier liable to a child who is injured by it, but it may aid the inference of an implied licence. 8 Furthermore, where a child is the licensee of the occupier, then the "occupier (on the footing that he knows or ought to know that pursuant to his implied licence children are accustomed to frequent his premises), must, over and above his ordinary duty of care to licensees, take reasonable care to prevent damage to the child from dangerous things with which he is liable to meddle". 9 Therefore, the line between trespasser and implied licensee was often manipulated to suit the justice of the case. However, sometimes it was not so manipulated, and the patent injustice of the law was evident. Thus for example, in Videan -v- British Transport Commission , 10 a child, playing on a railway line, was injured by an oncoming train and his father was killed trying to rescue him. The widow recovered in respect of the death of her husband, because he was the stationmaster and was thus lawfully there, but not in respect of the injuries to her son, because he was a trespasser to whom no duty could be owed. "Therefore, the line between trespasser and implied licensee was often manipulated to suit the justice of the case."

Part 1 As a response to lobbying of

successive Ministers for Justice, by the IFA and others, the Law Reform Commission has recently commenced a study of the law in relation to occupiers' liabiiity. In this area, as in so many others, as a result of our history, the Irish common law has its roots in English law. However, from this common point of departure, the two jurisdictions have embarked upon different journeys, taking different routes to different destinations. Irish law has gone down the road of judicial reform of the common law. 1 In England, reform has been comprehensive but has taken a statutory route. The aim of this article is to consider the efficacy of the English position as a model for reform of Irish law in the area. The article is in two parts. Part 1 will sketch the background to the English legislation, and will analyse the status of occupiers, premises and entrants under the English statutory position. Part 2 (which will appear in the November issue of the Gazette) will analyse the nature of the duty which the legislation imposes on the occupier, the type of damage for which he can be made liable and defences which the statute expressly supplies. It will conclude by considering whether statutory reform of the law in Ireland is necessary and whether the English statutes (or the rules they replaced) could be used as a model for such reform.

Eoin O'Dell to an entrant onto his land depended on the category into which the entrant fell. The common law analysed entrants into three categories: 2 those there (i) by the invitation, express or implied, of the occupier i.e. invitees, (ii) with the leave and licence of the occupier i.e. licensees, and (iii) trespassers. This structure was exhaustive and exclusive, 3 further refinement was resisted. No duty was owed to a trespasser; 4 a duty to warn of concealed dangers was owed to an invitee; 5 and a duty to prevent injury from dangers of which the occupier knew or ought to have known was owed to a licensee. 6 Given that so much turned on the category into which the plaintiff entrant came, the lines between the categories became very subtle. Very often, the Courts elevated meritorious plaintiffs from one category to another. This was especially so in the case of trespassing children. A trespasser is one " who goes upon the land without invitation of any sort and whose presence is either unknown to the proprietor, or if known, is practically objected to". 7 As a result, the general principle was that he who entered wrongfully entered at

Background to the English legislation

English common law proceeds on the basis that an occupier's liability

These subtle and often illogical distinctions brought no credit to the 303