The Gazette 1995

GAZETTE

N O V E M B ER

1995

! themselves to guarantee full peace of mind. In the case of occupiers this means Public Liability Insurance and in the case of "visitors" and "recreational users" it may involve personal insurance. In fact if the insurance option had been more fully availed of by both occupiers and visitors, the legislative amendments contained in the Occupiers' Liability Act 1995 might not How would you like to have to get down on your knees to open your front door? How would you like to have to carry a bag full of mail and then bend down to a letter box at the bottom of a door in order to deliver the mail every day of the week? An Post ask that if keyholes are not at the bottom of the door, why put a letter box there? It does not save money and makes little or no sense. "Low letter boxes in doors are a growing concern for An Post delivery staff. Badly placed letter boxes can have a detrimental effect on the health and safety of staff delivering the mail. It means that you have to bend down virtually to the ground level while carrying a bag of mail, in order to place letters in the boxes," said Michael McCabe, Manager in An Post Letters Division. "The Standard Specification ISI 195 : was drawn up by the Irish Institute for I Industrial Research and Standards in 1976 which recommended a standard height for letter boxes in doors should be 1700mm from ground if you are standing outside the door. : In other words the letter box should be in the centre of the door" he explained. "We are contacting the appropriate bodies to ask them to stop the practice of fitting low letter boxes in doors. There are no extra costs involved in putting the letter box in the middle of i the door. It only takes a little

have been necessary in the first instance.

; and Sons Ltd v Dumbreck ([1929] AC 358), and in Donovan v Landy's Ltd ([1963] IR 441). In determining what is i reckless it would appear that these old precedents which had been rendered obsolete by McNamara, will now be revisited for their pronouncement on what the law considered to be "reckless". The 1995 Act does, however, make this search somewhat easier in that at S4 (2) it identifies certain factors which a court will take into account in determining what is or is not reckless. The third new category.under the Act is that of "recreational users", and these are classified in terms of standard of care, with trespassers. It can be said therefore, that persons who are categorised as invitees and licensees benefit from the new Act in so far as their position is now clarified and the standard applicable to them is raised from the common law standard to that of reasonable care. The courts will not have to grapple with the distinction between actual knowledge and constructive knowledge. Secondly, it is fair to conclude that trespassers under the new Act lose out in so far as the standard owed to them now is much less than it was under the McNamara rule. Thirdly, "recreational users" also lose out in so far as such persons under the pre 1995 situation might have expected in many cases to be classified as licensees, or if they were deemed to be trespassers they would be entitled to reasonable care if they were foreseeable. Finally, because the occupier can now modify his obligations to lawful visitors, the concept of notices will become more important from the occupiers' point of view. If the occupier wishes to avail of | such modification he must show that the modification is a reasonable one, but in this connection reasonableness will be assumed if the notice is prominently displayed at reasonable points of the property. concept of "unusual dangers" and "concealed dangers", or with the In conclusion the changes brought about by the Occupiers' Liability Act 1995 do not totally insulate occupiers from being sued by persons who are injured on their property. Certainly it may make recovery more difficult in some cases, but the risk, although smaller, still remains. This factor alone means that both occupiers and persons exposed to injury still need to consider insuring

*This article was commissioned by the Parliamentary Committee. *Professor Bryan M.E. McMahon, Law Faculty, University College Galway, and of the firm, Houlihan McMahon, 9/10/11 Bindon Street, Ennis, County Clare.

Low Letter Boxes

a Health Hazard

Postman Christy Lacey begins his morning delivery in Dublin. He balances his full bag of mail while bending to reach the letterbox. A large estate of similar halldoors with low letterboxes lies ahead. consideration for those who have to use it. We are confident that those affiliated to organisations and associations including the Construction Industry Federation, Home Builders Association, door and porch manufacturers and importers will take on board these standards when designing, purchasing and fitting doors as well as the Royal Institute of Architects of Ireland who design and plan houses and solicitors who negotiate the purchase of new homes," Michael said. A special information leaflet is available from An Post highlighting the standard specifications for the letter boxes.