The Gazette 1995

GAZETTE

JULY 1995

L A W B R I E F

r i t t k e i i j ^ j

The Occupiers' Liabi l i ty Act 1995: Mod i f i ca t i on of Occupiers' Du ty to Ent rants

Mr. John Cooke, BL, Professor R.F.V. Heuston, Mr. Eric A. Plunkett, Solicitor, Mr. Matthew Russell, B.L., Professor W.D. Finlay, SC, Professor Rory O'Hanlon, SC, Mr. Niall Osborough and Mr. J.C. Brady, Solicitor. There are several key definitions in the Occupiers' Liability Act, 1995. One such definition is that of "occupier" who is defined in relation to any premises as meaning: "a person exercising such control over the state of the premises that it Is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon and, where there is more than one occupier of the same premises, the extent of the duty of each occupier towards an entrant depends on the degree of control each of them has over the state of the premises and the particular danger thereon and whether, as respects each of them, the entrant concerned is a visitor, recreational user or trespasser". "Entrant" is defined in relation to a danger existing on premises as "a person who enters on the premises and is not the sole occupier". "Premises" is defined as including "land, water and any fixed or moveable structures thereon and also includes vessels, vehicles, trains, aircraft and other means of transport". In the context of premises, "danger" is defined as meaning "a danger due to the state of the premises". Key Definitions

Dr. Eamonn G. Hall .

Introduction

The Occupiers' Liability Act, 1995 became law on July 17, 1995. The principal objective of the Act is to simplify and clarify the law on occupiers' liability by giving it a firm statutory basis and to implement recommendations contained in the Law Reform Commission's Report on Occupiers' Liability (LRC 46-1994). The law on occupiers' liability in Ireland has engaged the intellects of some of the great lawyers in this State. Foi; example, in 1974 an advisory committee on Law Reform (established in 1966 and composed of representatives of the Benchers of King's Inns, the General Council of the Bar, the Law Society and the Law Faculties of Trinity College Dublin, University College, Dublin and University College, Cork) produced a report entitled Reform of Law of Occupiers' Liability in Ireland (Stationery Office, Dublin, Prl. 4 4 0 3) which made certain recommendations in relation to the reform of the law on occupiers' liability. The thesis of Professor Bryan McMahon, solicitor, for the degree of Ph.D. from the National University of Ireland on Occupiers' Liability a Comparative Study and Proposals for Reform formed the essence of the 1974 Report. Members of the Advisory Committee involved in the 1974 Report represented la créme de la créme of the legal profession at that time and included Mr. Justice A. Ó Caoimh (Chairman), Mr. Justice John Kenny,

Professor Bryan McMahon suggested as long ago as 1972. trespassers. The duty owed to visitors is to take reasonable care that they and their property do not suffer injury or damage by reason of any danger existing on the premises of the occupier ("the common duty of care") (section 3) - subject to restriction, modification or exclusion referred to below (section 5). The duty owed to the recreational users and trespassers is not to injure them intentionally or act with reckless disregard for them (section 4 of the Act). As stated, in certain circumstances, occupiers are entitled to modify their duty by agreement or notice and, in all cases, depending on the particular circumstances, a warning may be sufficient to absolve an occupier from liability (section 4(2)(h) and section 5 of the Act). reform

Entering Premises to Commit an Offence

Where a person enters premises for the purpose of committing an offence or commits an offence while there, the occupier will not be liable for injury or damage unintentionally caused to 189

The main provisions of the 1995 Act

An occupier of premises now owes a duty towards three classes of entrant - visitors, recreational users and