The Gazette 1992

GAZETTF

OCTOBER 1992

gave sufficient control for liability to accrue to the "lessor". 20

the definitions in the 1957 Act, so that by section 1(2) of the 1984 Act, "occupier" and "visitor" have the same definitions as in the 1957 Act. The 1984 Act deals with entrants other than visitors (s. 1(3)). Consequently, the line drawn between the 1957 Act and the 1984 Act. At common law, a licence may be granted either expressly or impliedly, but one who claims that he is an implied licensee must show that the occupier has permitted his presence and not merely tolerated it: "repeated trespass of itself confers licence;... how is it to be said that he [the occupier] has licensed what he cannot prevent". 26 However, the "mere putting up of a notice ' No Trespassers Allowed' or 'Strictly Private', followed, when people often come, by no further steps, would, I think, leave it open for a judge or jury to hold implied permission". 27 Nevertheless, it would seem that "there is no duty on [an occupier] to fence his land against the world under sanction that, if he does not, those who come over it become licensees." As a result of the two Acts, especially of the 1984 Act, the impetus to manipulate this line between licensees and trespassers in the manner described earlier has disappeared, and the tenor of Herrington is hostile to it. Consequently, the courts will be more willing properly to classify the entrant as lawful or not, because in either case, if the occupier is in breach of duty, the entrant will be able to obtain a remedy. There is one situation in which this distinction is vital, where the entrant crosses the line from lawful visitor to- trespasser. An entrant is a lawful visitor only for so long as he is using the premises for the purposes for which is is invited or permitted to be there. This is so even at common law in Ireland. "When you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters". 28 If a visitor exceeds the ambit of invitation or permission he thereby becomes a trespasser. Again, it is a question of fact whether in all the

circumstances of the case the occupier has taken reasonable care to define the ambit of the invitation and thus to define the ambit of the existence and scope of the prohibited area. If a lawful visitor has strayed from the area in which he was clearly permitted to be, the question is not whether he has been invited to stray but whether there was anything to define and delimit the area of invitation, whether in space or time. Finally, it is not quite true to say that statute is silent on the question of the definition of an entrant. It does define one class of entrant as lawful: "persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or no t" (Section 2(6) of the 1957 Act). Therefore, potentially any and every entrant onto land may have a right of action. If it is a lawful visit, it will be governed by the 1957 Act, if is not then it will be governed by the 1984 Act. It ought to be noted that the definitions of premises and occupier under the legislation take their content from the common law. The Irish common law definitions of these concepts are at least very similar if not broadly the same. Thus, McMahon and Binchy consider that premises include " f o r example, platforms, grandstands, ships in a dock, a gully trap on a highway, scaffolding... electricity pylons...[and] moveables such as motorcars, ships and... airplanes". 29 Further, they conclude that a notion of control "is a more useful yardstick than occupation when one is determining liability". 30 Thus, the enactment into Irish law of these provisions would make little, if any, difference. The remaining questions under the statutes and the potential reform of Irish law in the area will be considered in Part 2.

(ii) What are premises? Again, this is not defined in the Acts, so again we must turn to the common law. The concept of premises is very wide. It embraces all real property: land, houses and buildings. 21 However, it is not confined to real property but extends to appliances or objects upon it of which the plaintiff has been invited or allowed to make use - for example, grandstands, 22 stagings, 23 ladders, 24 and, according to the Northern Ireland case of McLaughlin -v- Antrim Electricity Supply Co, 25 electricity pylons. However, the legislation is not silent on the matter of premises, adding for what it is worth, in section 1(3) of the 1957 Act that "the rules so enacted in relation to an occupier of premises and his visitors shall also apply, in like manner and to the like extent as the principles applicable at common law, to an occupier of premises and his invitee or licensees would apply, to regulate (a) the obligations of a person occupying or having control over any fixed or moveable structure, including any vessel vehicle or aircraft." common law divided entrants into the three categories of invitees, licensees and trespassers. Under the 1957 Act, the first two categories are "lawful visitors". It is to be noted that the 1957 Act did not affect the common law definitions of invitees or licensees in any way. (Section 1 (2): the Act shall "not alter the rules of the common law as to the persons... to whom [a duty] is owed; and accordingly for the purposes of the [Act] the persons who are to be treated as... visitors are the same... as the persons who would at common law be treated as... invitees or licensees".) Nevertheless, the effect was to create two categories of entrant at common law where once there were three: lawful visitors and trespassers. As we have seen, the 1957 Act applied to "visitors" and not to trespassers. The 1984 Act accepted (iii) Who are the entrants? It has been shown above that the

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