The Gazette 1995

GAZETTE

DECEMBER 1995

Occupiers' Liability Act 1995

by Professor Bryan McMahon*

Such lawful entrants are owed a duty of reasonable care.

With the passing of the Occupiers' Liability Act 1995 a debate which has lasted in this country for over twenty years has at last come to a legislative conclusion. The criticism of this branch of the law surfaced not only in the legal journals of the state, but latterly became a political issue which surfaced in the popular media as well. Undoubtedly, the high profile which this branch of the law assumed in recent years was aided by the fact that farmers, apprehensive about their legal position, closed off their lands to ramblers, hillclimbers, picnicers and tourists in an effort to highlight their concerns and protect themselves from possible suits. Rightly or wrongly, the farming community in recent years perceived that they were vulnerable when persons were injured on their lands. The law on Occupiers' Liability had been seen to be problematic as far back as 1967 when the matter was considered by the Advisory Committee on Law Reform which eventually reported in 1971; more recently the subject was considered by the Law Reform Commission who published a Report on the topic in April 1994. The Occupiers' Liability Act 1995 is a radical reform of the law and is best appreciated now if it is not viewed in its historical context. The new Act can be compared with, and in some instances echoes the old common law, but it is better for the practising lawyer now, to approach the new Act carrying no historical baggage with him or her. Under the new law, persons who come onto another persons premises are divided into three categories:

"Trespassers" and "Recreational Users", however, are not treated so generously under the Act. To such persons the occupier owes a duty not to injure such a person intentionally and not to act with reckless disregard for their safety [S4( I)]. In determining whether the occupiers' conduct was reckless or not, all the circumstances have to be taken into account, and specifically mentioned in the Act are the following circumstances: (i) Whether the occupier knew or should have known of the danger on the premises; (ii) Whether the occupier knew or should have known of the likelihood of the persons presence on the premises or their likely presence in the vicinity of the danger on the premises; (iii) Whether the danger was one which the occupier might reasonably be expected to provide protection for the entrant; (iv) The burden on the occupier of eliminating the danger, taking into account the difficulty, the expense or the impracticality of removing the danger; (v) The character of the premises and the desirability of maintaining the tradition of open access to a premises of such a character for such an activity; (vi) The conduct which the entrant may be expected to take for his own safety; (vii) The nature of any warning given by the occupier; (viii) Whether or not the person injured was on the premises in the

Prof. Bryan M.E. McMahon

care") to a visitor, and this duty is defined in the Act as a duty "to take such care as is reasonable in all the circumstances.... to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon". This duty of care is akin to the standard of care in ordinary negligence, and like the ordinary duty in negligence it may be interestingly the occupiers' "common duty of care" may be reduced when the injured visitor is on the premises in the company of another person who may be expected to supervise the visitor, such as would be the case where a child visitor is accompanied by its parent, its supervisor, or its minder. By and large a "visitor" means an entrant who is lawfully on the premises of the occupier, and is there either at the invitation or with the permission of the occupier or at the invitation or with the permission of a member of the occupiers' family. It would also include persons who were present on the premises by virtue of an express or implied term in the contract, or persons who are on the premises as of right. affected by the plaintiffs own contributory negligence. More

(i) "Visitors", (ii) "Trespassers", (iii) "Recreational Users".

company of another person or under the supervision of another person.

Briefly speaking, the occupier owes a duty of care ("the common duty of

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