The Gazette 1995

GAZETTE

DECEMBER 1995

Section 4, subsection 3 provides that the occupier does not owe the duty - not to injure intentionally or be reckless - to persons who enter premises for the purpose of committing an offence or where present on the premises commits an offence. Such persons can only recover from the occupier when a court determines that recovery is "in the interest of justice". because the farming community feared that "recreational users" on their land and without their knowledge might sue in respect of injuries suffered as a result of dangers on the land. It is for this reason that the Act classifies "recreational users" together with trespassers and accords them only the low standard of care which the word "reckless" implies. A "recreational user" is defined in the Act as an entrant who is present with or without permission or implied invitation free of charge, including entrants to national monuments under the National Monuments Act 1930, for the purpose of engaging in a recreational activity. Excluded from this definition of a "recreational user" however, are members of the occupiers' own family who are ordinarily resident on the premises and also entrants who are expressly invited onto the premises or who are permitted onto the premises for social reasons by the occupier or a member of his family. Such lawful entrants are categorised in the higher group of visitors. The recreational user therefore must be engaged in a "recreational activity" and this, according to the Act, includes any such activity conducted in the open air including any (sporting activity), scientific research and nature study so conducted, exploring caves, visiting sites and buildings of historical, architectural, traditional, artistic, archeological or scientific importance. The scheme of the Act groups recreational users, as defined above, with trespassers and declares that the only duty owed to such persons by the occupier is not to intentionally injure them or be reckless in their regard. Part of the reason why the reforms in this area were brought about was

rule and that is where a structure or | premises is provided by the occupier for ' use primarily by recreational users. In this case the occupier shall owe a duty ! to take reasonable care to maintain the structure in a safe condition. The Act, however, makes clear that where a stile, gate, footbridge or other similar structure is on the premises, but is not there for use primarily by recreational users, the occupiers' duty is not extended in that case. Accordingly, if a Local Authority provides a playground with swings, etc., it will still be obliged to take reasonable care to make sure that the structures are maintained in a safe condition. Farmers on the other hand, do not have the higher duty in respect of stiles, footbridges etc., which although on their property are not primarily there to facilitate recreational users. The duty that the occupier owes to visitors and to trespassers and recreational users may be extended by the occupier by express agreement. On the other hand, the occupier can only restrict or modify his duty towards visitors and then, only if: prominently displays the notice at the normal means of access to the premises, he shall be presumed to have taken reasonable steps in this regard. Moreover, the restriction or modification which the occupier attempts to impose on the lawful visitor can not fall below the standard due to 5 the trespasser or recreational user. In other words, the occupier may restrict or modify the duty to take reasonable care, but such notice or restriction can not reduce his obligation below the level due to trespassers, so that even if he has an effective notice restricting his liability he will still owe to the lawful visitor the duty not to be reckless or not to intentionally injure them while on these premises. This is effect is the | minimum standard owed to all entrants. Finally, the Act provides that, where the visitor has been warned of the existence (i) it is reasonable in all the circumstances; I (ii) in the case of an occupier ! restricting his duty by notice he has taken reasonable steps to bring the notice to the attention of the visitor. i I In this connection, if the occupier

of a danger, this fact in itself does not absolve the occupier in all cases, unless the warning was enough to enable the visitor to avoid the injury or damage that were caused. It further provides (S6) that any such contractual modification by the occupier will not bind the entrant who is a stranger to such contract. Section 7 of the Act provides that the occupier of premises shall not be liable for injury or damage caused by a danger existing on the premises due to the : negligence of independant contractors, ! provided the occupier has taken care in i the selection of the independant | contractor and ought not to have noticed ; that the work was not properly done. Finally, it is provided in the legislation that the Act does not affect any enactment or rule of law relating to self defence or liability imposed on the i occupier in any other capacity, such as ! his capacity as an employer, hotel proprietor, the hirer of transport, or as a carrier, or as the bailor in the contractors bailment, neither does the Act alter the common law duty imposed on an occupier for torts committed by another person where the duty imposed on the occupier was of a non delegable nature. For the practitioner who was raised with the common law categories of invitees, licensees and trespassers, and who had to grapple with some of the technical rules and concepts such as "unusual dangers" and "concealed dangers", it might be helpful to align the provisions of the new Act with the common law rules. Firstly the new Act departs from the traditional classification of entrants into the following categories of: (a) Contractual Invitees, (b) Invitees, (c) Licensees, (d) Trespassers. The new Act by and large treats the first three categories now as "visitors", and extends to them a duty on the part of the occupier to take reasonable care in relation to the state of the premises. Trespassers survive as an identifiable group, but now under the new Act the standard of care owed to them is not that which was given to them in I McNamara v E.S.B. ([1975] IR 1), but I rather the old common law standard to ' be found in earlier cases such as Addie

There is one exception to this general

354