The Gazette 1993

NOVEMBER 1993

GAZETTE

by Mr. Justice Aindrias O'Caoimh, as he then was, and which had a wide representation from both professional and academic life, including such eminent scholars as Professor R.F.V. Heuston, Professor Rory O'Hanlon and Mr N Osborough should have merited some consideration in this connection. It was, after all, the only previous recommendation by a serious body in this jurisdiction on the topic. It is hoped that the Law Reform Commission will remedy this omission and reconsider its proposals before issuing its final word on the matter.

O 'Keeffe v Irish Motor Inns Ltd ([1978] IR 85) and Keane v The ESB ([1981] IR 44).. The Law Reform Commission in this consultation paper now suggests the way forward is to reduce the entrants coming on to a person's property into two categories: visitors and trespassers. To visitors, the duty which the occupiers owes should be a common duty of care, that is the duty to take reasonable care. To trespassers, however, the Commission proposes more or less to restore -the law as it existed prior to McNamara. The duty of the occupier to trespassers should, according to this proposal, be merely a duty not to intentionally injure them and not to act with gross negligence towards them. McNamara , it will be recalled required reasonable care. The Commission's proposal does, however, modify this harsh approach by suggesting that where the occupier knows of the presence of child trespassers and furthermore is aware that a condition or an activity on the premises creates a danger of death or serious bodily harm, then the duty of the occupier should be to take reasonable care. The abolition of the distinction between invitees and licensees was recommended by this reviewer as far back as 1970 and this will be supported by most persons familiar with the topic. See also report of Advisory Committee on Law Reform [Prl. 4403, 1974]. It is this reviewer's view, however, that the proposal for reform in relation to trespassers is misconceived and is a lobby driven response to a misperception of the law as it affects farmers. Having had the courage to advance the law in McNamara in 1972, the Supreme Court failed in its obligations to clarify any uncertainties which McNamara left at its wake and this uncertainty may have encouraged farmers' fears in the matter. The extension of farmers' exposure since McNamara however, is marginal and surely is a matter which can be handled by liability insurance. Insurance companies have shown no

reluctance to extend cover in such cases and, from what we know, at modest premiums. The Law Reform Commission's arguments against the reasonable care standard for trespassers as formulated in McNamara , is a general argument which highlights the weaknesses of the reasonable care standard as such. It is an argument that might easily be made also against reasonable care as a standard for road traffic accidents, employer liability claims and the law of negligence in general. Moreover, it seems strange and inconsistent that the Law Reform Commission, having on a general level refused to recommend it in the case of trespassers, should now have no hesitation in recommending the Furthermore the proposals go against the modern trend in tort liability (the most recent examples of which are to be found in the Animals Act, 1985 which in removing the rule in Searle v Wallbank also adopts reasonable care as a standard where cattle escape on to the highway. In the Control of Dogs Act, 1986, strict liability also features strongly and in the case of dogs very same standard with all its weaknesses, for lawful visitors. injuring trespassers, reasonable care is the standard preferred by the Oireachtas in that instance (section 21.(3)). It would appear that the Oireachtas in recent years has lost faith in negligence calculus. Furthermore, in the liability for Defective Products Act, 1991, the law furthers the policy which imposes strict liability whenever loss distribution can be achieved through price or insurance mechanisms. Finally, this reviewer found it strange that no specific reference whatsoever is made in the consultation paper to the Report of the Law Reform Advisory Committee (November, 1974) (Prl 4403) and its recommendation for reform in this area of law at page (vii). This Committee, having considered a long report of this reviewer, recommended that the occupier should owe a duty of reasonable care to all entrants with certain defences available in the case of trespassers. One might have expected that the recommendation of this Committee, which was chaired

Bryan M.E. McMahon

Textbook on Jurisprudence

By Hilary McCoubrey and Nigel D. White (London, Blackstone Press Limited, 1993, ix + 250pp, paperback, £15.95 Sterling) "I wish unto him the gladsome light of Jurisprudence." Coke on Littleton, Third Edition, 1633, Epilogue, p.359a. It is only as some of us grow older that we can appreciate "the gladsome light of jurisprudence". Wurzel wrote in "Methods of Juridical Thinking" in Science of Legal Method: Selected Essays that "jurisprudence was the first of the social sciences to be born". The 1 words juris prudentia mean either "knowledge of law" or "skill in law". concept of things divine and human, the science of the just and unjust". But a j writer has characterised this as no more than a piece of rhetoric. Professor Stone summed up jurisprudence as ! "The lawyer's extraversion. It is the i lawyer's examination of the precepts, ideals and techniques of the law in the light derived from present knowledge and disciplines • other than the law." The disciplines in question are most often philosophy, sociology and ethics. j In Justinian's Institutes , there is a phrase that "jurisprudence is the

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