Report of Expert Group established to examine and
make recommendations on the Legal Issues of Land
Access for recreational use
Presented to Éamon Ó Cuív,
Minister for Community, Rural and Gaeltacht
Affairs
1
Index
Page
- Background
3
- Report of Expert Working Group
4
- Appendices
-
Appendix 1:
- Appendix 2:
Membership of Group
25
Text of Article 40.3.1 and
Article 40.3.2 of the Constitution
of Ireland
26
Text of Article 43 of the Constitution
of Ireland
Text of Article 1 of Protocol 1 to the
European Convention for the Protection
of Human Rights and Fundamental Freedoms
-
Appendix 3:
Text of the Occupiers Liability Act 1995
28
-
Appendix 4:
Section 21 of the Control of Dogs Act 1986
35
-
Appendix 5:
Reference Documentation consulted by
the Expert Group.
36
2
Background:
Comhairle na Tuaithe was established by Mr. Éamon Ó Cuív T.D., Minister for
Community, Rural & Gaeltacht Affairs in 2004 to address the three priority issues of:
Access to the Countryside;
Developing a Countryside Code, and
Developing a Countryside Recreation Strategy.
Comhairle na Tuaithe comprises representatives of the farming organisations,
recreational users of the countryside and state bodies with an interest in the
countryside.
To date, Comhairle na Tuaithe has identified and agreed a set of access parameters to
the countryside, which it believes will serve as a basis for conflict prevention and
integrate a variety of needs and responsibilities. It has also agreed the key features
necessary for countryside code development, with a focus on the potential application
of the internationally recognised “Leave No Trace” initiative.
Comhairle na Tuaithe has also completed its work on the development of a National
Countryside Recreation Strategy. In its report, Comhairle na Tuaithe made the
following recommendations in relation to access: -
That the Attorney General be requested to examine restating and/or
reflecting in legislation the current common law position in relation to the
protection of landowners’ property rights where recreational access is
allowed on their land.
-
That the Law Reform Commission be requested to make recommendations
on the broader issues of access to the countryside for recreational users
focussing on the constitutional and legal position pertaining in Ireland.
-
That no cost burden or liability, within the meaning of the Occupiers
Liability Act 1995, should attach to farmers/landowners as a result of
allowing recreational users on their land.
To ensure that these issues were addressed as a matter of priority, the Minister
established an expert group, comprising a Senior Counsel and officials from the
Office of the Attorney General, the Department of Justice, Equality and Law Reform
and the Department of Community, Rural & Gaeltacht Affairs.
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REPORT OF THE EXPERT GROUP TO EXAMINE AND MAKE
RECOMMENDATIONS ON THE LEGAL ISSUES OF LAND ACCESS FOR
RECREATIONAL USE.
(A)
TERMS OF REFERENCE
We have convened at the request of the Minister for Community, Rural and
Gaeltacht Affairs. The Minister has requested that we provide a report dealing
with the following:
(i)
(ii)
(iii)
(B)
whether legislation is necessary in order to confer on the public a right
to access private land for recreational purposes (‘right to roam’) and, if
so, the nature of the rights which might be conferred;
impact of the Constitution of Ireland and the European Convention for
the Protection of Human Rights and Fundamental Freedoms;
issues relating to occupiers and other liability, indemnity and
insurance.
OVERVIEW OF THE RELEVANT LAW
(i) Summary of the current legal position
(1)
All land within the State (including the foreshore) is in state or private
ownership. The right of the occupier of the land to exclusive use of it
is protected by the tort of trespass which, broadly speaking, is the act
of entering or remaining on another person’s land without permission
or other lawful justification. The essence of trespass is that it interferes
with possession and the consequence of this is that trespass is
actionable only at the suit of the person who is in possession.
Reversioners such as lessors have no right of action unless damage is
done to the land which affects the value of their interest.
(2)
Trespass is actionable without proof of special damage. Where no loss
is proved only nominal damages can be recovered and the remedy is,
in general, an injunction to prevent the trespass. Where physical
damage is caused to land the measure of damages may be either the
reduction in the value of the property or, in appropriate cases, the cost
of reinstatement. Where trespass involves wrongful use of land the
measure of damages is reasonable remuneration for that use.
(3)
Entry on land on foot of an express or implied permission of the person
in possession or in accordance with statutory provisions does not
amount to trespass. In addition, a person having the benefit of a
private right of way over land is entitled to go on land in exercise of
that right. Where land is subject to a public right of way or modified
right for the benefit of the inhabitants of a locality, the public at large
4
or the inhabitants of that locality are entitled to use the land in
accordance with that right.
(4)
In general, there are very few public rights of way in Ireland which are
not maintained public roads. Public rights of way acquired otherwise
than by statute arise as a result of dedication and acceptance. In
England and Wales, a way over land which has been actually enjoyed
by the public as of right and without interruption for 20 years is
deemed by statute to have been dedicated as a highway unless there is
sufficient evidence that there was no intention during that period to
dedicate it. The history of land ownership in Ireland has developed
very differently to the history of land ownership in England and Wales.
The result is that it is very difficult to establish public rights of way in
rural areas otherwise than by utilising statutory schemes involving
compulsory purchase. The common law does not recognise any “right
to roam”. The general public do not have any right to wander around
private property.
(5)
Planning authorities have compulsory powers to create public rights of
way under sections 207 and 208 of the Planning and Development Act
2000 and section 200 of that Act provides that compensation is payable
based on reduction in value and disturbance. Various statutory
provisions permit a variety of statutory authorities and others to go on
land for the purpose of carrying out specified functions.
(6)
The scope of liability of occupiers of land for injury caused to entrants,
including trespassers, from dangers due to the state of the land is
governed by the provisions of the Occupiers’ Liability Act l995.
Common law rules govern the duty of care which occupiers and other
users of land owe to entrants injured as a result of current operations
conducted on land.
(ii) Impact of the Constitution of Ireland and Article 1 of Protocol
1 to the 1950 European Convention for the Protection of Human
Rights and Fundamental Freedoms.
(1)
The State is obliged in its laws to respect, and so far as is practicable,
by its laws to defend and vindicate the property rights of citizens and
others by protecting them from unjust attack and by vindicating them
in the case of injustice done: see Article 40.3.1 and Article 40.3.2 of
the Constitution. In addition, Article 43 of the Constitution forbids
expropriation of property and recognises a “natural right” to private
ownership of property, subject to the qualification that rights of
ownership “ought in a civil society be regulated by the principles of
social justice” and that “the State, accordingly, may as occasion
requires delimit by law the exercise of private property rights with a
view to reconciling their exercise with the exigencies of the common
good.”
5
(2)
Article 1 of the first Protocol to the l950 Convention provides that
“Every natural or legal person is entitled to the peaceful enjoyment of
his possessions. No one shall be deprived of his possessions except in
the public interest and subject to the conditions provided for by law
and the general principles of international law. The preceding
provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property
in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties.”
(3)
Both the provisions of the Constitution and the l950 Convention (as
extended by Protocol 1) permit restrictions on the use of property in
accordance with “the general interest” or “the exigencies of the
common good”. The State/Oireachtas has what is called a “margin of
appreciation” in enacting legislation, which allows it to “delimit by
law” or “control” “the use of property” or the “exercise of property
rights”. The first requirement is that the legislation imposing
restrictions on property rights has a valid social purpose. The second
requirement is that the legislation designed to achieve that social
purpose strikes a “fair balance”. The concept of the “margin of
appreciation” extends to the means, which the State/Oireachtas adopts
in legislation, which “delimits by law” or “controls” the “use of
property” or the “exercise of property rights”. It does not follow that a
statutory scheme which imposes such limitations or control must
inevitably include provisions giving compensation to those whose
property rights are affected.
(4)
Property rights in land comprise a variety of rights enjoyed by a
number of different types of owner. The interest owned may be a right
to possession carrying with it a right to exclusive enjoyment. It may be
some lesser right such as a right of way or a licence to graze animals
protected by the law of nuisance. Rights in land also include the
interests of lessors and mortgagees which are protected in other ways.
(5)
As there is no “public right to roam” on land, the creation of any public
access right would require legislation. Such legislation would involve
restrictions on the exercise of some rights enjoyed by owners of land.
One effect of a statutory permission to members of the public to enter
on land is that the owner in occupation ceases to be entitled to treat
these entrants as trespassers.
(6)
The Oireachtas is entitled to pursue an objective of requiring that the
public be given access to land for recreational use so long as the
statutory regime giving effect to this intention is not disproportionate.
A “disproportionate” statutory scheme would permit some excessive
interference with the use or enjoyment of land or imposes unreasonable
burdens, costs or liabilities on the owners or occupiers of the land
affected. The concept of proportionality is relevant to the
circumstances in which a statutory interference with rights may give
rise to a right to be compensated either for damage caused as a result of
6
such interference or on the basis that the interference in question
involves loss of a property right.
(7)
We note that the statement of Costello J. on proportionality in Heaney
v. Ireland (l994) 3 I.R. 594 at 607 has been approved by the Supreme
Court in later cases involving property rights. In this case, Costello J.
stated as follows: “The objective of the impugned provision must be of
sufficient importance to warrant over-riding a constitutionally
protected right. It must relate to concerns pressing and substantial in a
free and democratic society. The means chosen must pass a
proportionality test. They must: (a) be rationally connected to the
objective and not be arbitrary, unfair or based on irrational
considerations; (b) impair the right as little as possible, and (c) be such
that their effects on rights are proportional to the objective.” We refer
to Re Article 26 and the Employment Equality Bill, l996 (l997) 2
I.R. 321 at 383 where proposed legislation was tested by reference to
whether it intruded “into constitutional rights as little as is reasonably
possible”. See also Re Planning and Development Bill 1999 (2000)
2 I.R. 321 at 354.
(8)
The State’s margin of appreciation extends to choice of method of
compensation in cases where compensation is appropriate and in some
cases the legislative intervention may result in an interference with
property rights which is of such minor importance that it is not
necessary to establish any compensation scheme. The proportionality
principle applies to whether compensation becomes payable and to the
method of calculation of compensation.
(9)
The Constitution provides for the separation of powers. Where a
legitimate social policy is being pursued, the courts defer to the right of
the Oireachtas to make policy choices. The Constitution enjoins the
Oireachtas to enact legislation which complies with its provisions and
any legislation enacted enjoys the presumption of constitutionality. A
constitutional challenge to the validity of the legislation on the grounds
that it breaches Articles 40 and 43 of the Constitution can only succeed
if the claimant demonstrates that he or she is adversely affected by
choices made in the legislation which are “disproportionate” or outside
the “margin of appreciation”.
(10)
We note that there are decided cases in the United Kingdom which
indicate that the fair balance test of proportionality for the purposes of
Article 1 of Protocol No. 1 to the l950 Convention is not synonymous
with a “least intrusive alternative” or “impair the rights as little as
possible” test.
(11)
In formulating legislation which satisfies the proportionality or “fair
balance” test a number of matters are relevant.
(a)
the object to be achieved;
7
(b)
whether those affected or some of those affected have to bear
an excessive burden in order to achieve that object;
(c)
the degree to which individuals will suffer concrete losses;
(d)
whether there is a compensation provision for those who have
to bear an excessive burden or suffer concrete losses;
(e)
where compensation is payable, whether the compensation
procedure and the criteria for the assessment of compensation
are fair and proportionate;
(f)
where rights are acquired compulsorily, whether there is a
preliminary consultation process which gives due regard to the
concerns of landowners and other interested parties.
(12)
The concept of “ownership of property” gives the person entitled a
bundle of rights. These rights of ownership are regulated by principles
of social justice. The rights are not absolute. They may be qualified
and they may be a source of obligations. Minor interference with the
potential of an owner or occupier to exploit more fully or enjoy land or
other property may be imposed for the benefit of the people of Ireland
without triggering a requirement to pay compensation.
(13)
In order to achieve the required balance the provisions of any scheme
of legislation providing for the “right to roam” has to include
exclusions or modifications of the rights granted to ensure that such
rights are not exercised in circumstances which are inappropriate
having regard to the current use of land. For example, it would be
inappropriate for the legislature to permit a right to roam within the
curtiledge of dwellinghouses or over land which is being cultivated for
crops or where the exercise of the right might damage immature forest.
(14)
In enacting legislation which impinges on property rights relating to
land the Oireachtas is concerned with the degree to which individuals
affected will suffer concrete loss. A statutory scheme which does not
include compensation provisions can be justified where the rights
conferred will not result in any significant economic loss or significant
interference with the use or amenity (by which we mean real as
opposed to theoretical losses and interference) of the land affected.
(15)
We feel that there is no case for payment of compensation merely
because a statutory scheme permits members of the public to enter on
to lands capable of being enjoyed for recreational purposes under a
regime which requires those exercising the right to defer to the
legitimate interests of those who own or occupy the property. For
instance, the mere fact that the public are given a statutory right to
walk on mountains or fields or use agricultural laneways which are
8
already in existence and which are designed to give access to the sea,
mountains, forests or fields should not carry with it a right of the
landowners to compensation. We do not envisage a statutory scheme
for public access which imposes any significant legal or financial
obligations on landowners or requires them to fund the cost of
providing the relevant public right, either directly or indirectly.
(16)
The extent of any statutory scheme giving the public a right of access
for recreational purposes to land involves the making of policy
choices. For example, in Scotland a policy choice has been made to
extend the public access right to land used for the pasture of animals,
but this is subject to section 2 of the Land Reform (Scotland) Act 2003
which specifies that “a person has access rights only if they are
exercised responsibly” and that “in determining whether access rights
are exercised responsibly a person is presumed to be exercising access
rights responsibly if they are exercised so as not to cause unreasonable
interference with any of the rights (whether access rights, rights
associated with the ownership of land or any others) of any other
person..……”.
(17)
The Scottish Act requires that those exercising the right of access must
comply with an “Access Code”. They must also “take proper account
of the interests of others and of the features of the land in respect of
which the rights are exercised”.
(18)
The question of whether a statutory scheme giving the public a new
right of access to private land for recreational purposes entitles the
landowner or occupier to compensation does not depend on the nature
of the right conferred on the public. What is at issue is the effect on
the landowner or occupier of the right as conferred. For instance, an
occupier of land is not entitled to compensation merely because he
would be entitled to refuse permission to a member of the public to
enter on his land or to charge a fee as a condition of such permission.
An occupier of land who is already exploiting a recreational amenity
on that land for commercial gain is in a different position.
(19)
Any legislation should have simple and inexpensive procedures for the
rapid resolution of disputes about access issues. These procedures may
include mediation and arbitration. There should be an appropriate
appeal procedure. There should be a consultation process where an
administering authority proposes to establish access structures and
designated walking trails.
(20)
A potential issue in any “fair balance test” is whether any proposed
legislation gives rise to a necessity to modify the rules governing
liability at law of landowners and others for injury and damage which
may be caused to members of the public exercising the statutory right.
We believe that a legislative scheme which requires that those
exercising the public access right act responsibly and take proper
account of the interests of others and the state of the land will achieve
9
the fair balance in this context and that landowners and others do not
require special immunities in order to protect their interests.
(C)
LEGISLATIVE OPTIONS
(1)
In examining legislative options we have looked at a number of
statutory models in other jurisdictions. These include the following:
(i)
(ii)
(iii)
(2)
the “access to open country” provisions in the Access to the
Countryside (Northern Ireland) Order l983 (l983 No. 1895 (N.I.
18));
the Countryside and Rights of Way Act 2000 (England and
Wales);
the Land Reform (Scotland) Act 2003 (Scotland).
The Northern Ireland legislation is based on the Countryside
(Scotland) Act l967 which has now been partially repealed by the Land
Reform (Scotland) Act 2003.
England and Wales and Northern Ireland.
(3)
The legislation in England and Wales and the legislation in Northern
Ireland confines the right of public access to “open country” which is
defined as land over a specified altitude and/or land appearing to the
relevant administering authority as consisting wholly or predominantly
of mountain, moor, heath, hill, woodland, cliff, foreshore, marsh, bog
or waterway (Northern Ireland) and as including land consisting of
mountain, moor, heath or down (England and Wales). The Northern
Ireland legislation does not extend to the foreshore and coastal land
beside the foreshore such as dunes and cliffs. The 2000 Act extends to
“coastal land” in the event that the relevant authority makes a statutory
order. It excludes what is described as “improved or semi-improved
grassland”.
(4)
The Northern Ireland legislation provides that the public access is
either permitted to the designated land under an “access order” or an
“access agreement” between the landowners and the administering
authority. The administering authority is given power to enter into
access agreements with landowners and these agreements may include
provisions for payment.
(5)
In Northern Ireland compensation is payable in the event of an access
order being made and this is assessed in the light of the actual effect on
the land during a period of five years from the coming into operation
of the order and does not become payable until after the expiration of
this period. There is also provision for payment on account in the
intermediate period “on the ground of special circumstances”. The
legislation in England and Wales does not provide for the payment of
compensation for public access to land designated as “access land”.
10
Scotland
(6)
The 2003 Act gives an access right for recreational purposes which
includes a purpose of furthering the understanding of natural and
cultural heritage (e.g. visiting a monument or geological feature). The
right includes a right of access to enable or assist others to enjoy their
statutory right of access. Commercially organised walking tours are
permitted. The access right extends to all land except land excluded
under section 6. It extends to agricultural land, except land in which
crops have been sown or are growing. There is no provision for
payment of compensation to landowners.
(7)
Various categories of land such as houses, gardens and lands
developed for sport or recreational purposes, factories and industrial
buildings are excluded. The administering authorities (local
authorities) are also given powers to make bye-laws to exclude other
lands which are not specifically referred to in section 6. The
administering authorities have power to draw up plans for what are
described as “core paths” on existing roads, pathways, footways or
tracks over which there are public rights of way. Paths may also be
designated over private land in accordance with “path agreements”
entered into between the administering authorities and the owners or
occupiers. The administering authorities may also designate paths in
certain cases without the consent of owners or occupiers by making
“path orders”.
(8)
“Path agreements” may include terms and conditions and the statutory
provisions relating to these agreements include a power to make
payments. Paths may be ploughed up or disturbed on a temporary
basis for normal agricultural purposes. Land is defined as including
inland waters, canals and the foreshore. Entry on land with horses and
bicycles is allowed. Crossing land with motorised vehicles (other than
certain invalid vehicles) or vessels is excluded as is hunting, shooting
and fishing.
Paths, trails, access points and structures facilitating access.
(9)
Statutory provisions relating to designated paths or trails within
“access land” as defined in any future legislation may include
stipulations designed to ensure that the land over which the path may
be indicated is not sterilised so that agricultural or other use is not
interfered with. It may provide that crops may be planted on the land
and that the public right to use the path or trail may be suspended
during such activities. It may permit deviations or alterations to paths
or trails where these are necessitated in order to accommodate some
legitimate interest of the landowner or occupier. It should include
provisions for consultation prior to the making of a “path order” and
for an appeal procedure. It should also include procedures for
11
termination of the right to use the path or trail in cases where the
landowner advances good reason.
(10)
A feature of the English legislation is a power given to the
administering authorities to enter into agreements for improving means
of access to “access land” and a further provision giving these
authorities power to carry out necessary works where agreement is not
forthcoming. The procedure involves an appeal process. The
improvements may consist of facilities such as steps, stiles and
stepping-stones over watercourses. By section 35 (2) of the 2000 Act
administering authorities are given powers to pay sums to landowners
in consideration of the imposition of restrictions.
(11)
We consider that there is no case for payment of compensation merely
because a path is created or designated over a private lane which
already exists for agricultural purposes and which may in any event
come within the statutory definition of “access land”. Similarly, there
is no case for compensation where the path or trail is on land which is
“access land” and consists of minor structures such as stiles, indicative
markers and stepping-stones, or where some more permanent path has
to be laid down for environmental or other reasons in areas which are
not the subject of significant agricultural activity or over land which
has been traditionally used by the public for recreational purposes.
Such minor structures would not necessarily involve any expropriation
of land or material damage to land or interference with the right of the
occupier to exploit it.
(12)
There is a case for payment of compensation where statutory powers
are used to create designated paths or trails over private land which is
not “access land”. There is also a case for payment of compensation
where statutory powers are used to create significant alterations to land
or install significant structures which sterilise its existing use or where
the use made of a designated path or trail is so intensive as to cause
permanent significant damage or materially interfere with a competing
amenity enjoyed by the occupier. Legislation ought to include a
procedure for payment of compensation in these cases. Any
compensation scheme may, in appropriate cases, provide for
assessment of compensation on a “look back basis”.
(D)
LEGAL CHARACTERISTICS OF A RIGHT TO ROAM
(1)
The legislation giving public access rights in England and Wales,
Scotland and Northern Ireland is similar in many respects. At the core
of this legislation is the concept that members of the public are given a
statutory limited licence to enter onto designated land for defined
recreational purposes on the basis that they are not trespassing so long
as they confine themselves within the limit of the statutory permission.
The right given to the public is not a “bare licence” in the sense that
this term is commonly understood in land law.
12
(2)
In land law a “bare licence” is used to describe a temporary and
terminable permission given by a person in possession of land to
another person to do something on or to that land which would
otherwise amount to a trespass. A feature of a “bare licence” is that
the grantor may terminate the permission at any time.
(3)
In the Scottish and English legislation the statutory right granted is
very limited and is not designed to amount to anything approaching
either expropriation of land or sterilisation of its use. The legislative
schemes recognise that those exercising the public right must defer to
the legitimate interests of landowners and occupiers and that the public
exercising these rights are primarily responsible for their own safety.
(4)
Even the legislative provisions relating to what are described in
Scotland as “core paths” make clear that they do not confer (and are
not equivalent to) public rights of way. Their legal nature and the
purposes for which they may be used are very confined. The
exclusions relating to recreational use are designed to ensure that
members of the public do not abuse their access rights by causing
damage or by engaging in unauthorised or inappropriate activities such
as hunting, fishing, shooting, lighting fires, leaving litter and damaging
the environment by disturbing wildlife or causing damage to protected
areas. Restrictions and qualifications relating to access areas are
designed to ensure that the statutory right of access is confined to
appropriate property. In addition, there are exclusions in order to
protect wildlife and habitats including provisions for the exclusion of
access at certain times of year or seasons. We have already referred to
section 2 of the 2003 Act in Scotland which emphasises that the access
right only exists to the extent that it is exercised responsibly.
OCCUPIERS’ LIABILITY AND OTHER LIABILITY
(E)
(i)
The existing legal framework in Ireland.
(1)
The Occupiers’ Liability Act l995 specifies the duties owed by
“occupiers” of land to “visitors”, “recreational users” and “trespassers”
as defined in section 1 (1). The duty owed to visitors is the “common
duty of care” specified in section 3 (1). The duty owed by an occupier
of land to recreational users and trespassers is set out in section 4 (1)
and is “in respect of a danger existing on premises…….a duty (a) not
to injure the person or damage the property of the person intentionally,
and (b) not to act with reckless disregard for the person or the property
of the person……..”. Section 4 (2) goes on to provide that “in
determining whether or not an occupier has acted with reckless
disregard, regard shall be had to all the circumstances of the case”,
including the criteria set out at sub-paragraphs (a) to (i): see appendix 3
(emphasis added).
(2)
Section 2 of the Act provides that “…….the duties, liabilities and
rights provided for by this Act shall have effect in place of the duties,
13
liabilities and rights which heretofore attached by common law to the
occupiers of premises as such in respect of dangers existing on their
premises to entrants thereon.”
(3)
The definition of “visitor” includes an “entrant as of right” who is
present on land “for the purpose for which he or she is invited or
permitted to be there”. Persons coming within the category of “visitor”
include those who are permitted entry on to land in return for payment.
(4)
“Recreational activity” is defined in section 1 (1) as meaning “any
recreational activity conducted, whether alone or with others, in the
open air (including any sporting activity), scientific research and nature
study so conducted, exploring caves and visiting sites and buildings of
historical, architectural, traditional, artistic, archaeological or scientific
importance.”
(5)
“Recreational user” is defined as meaning “an entrant who, with or
without the occupier’s permission or at the occupier’s implied
invitation, is present on premises without a charge (other than a
reasonable charge in respect of the cost of providing vehicle parking
facilities) being imposed for the purpose of engaging in a recreational
activity, including an entrant admitted without charge to a national
monument pursuant to section 16 (1) of the National Monuments Act
1930” but not including certain categories of entrant who are relations
of the occupier or who are present at the express invitation of the
occupier or relations of the occupier.
(6)
“Trespasser” is defined as meaning “an entrant other than a
recreational user or visitor”.
(7)
“Occupier”, in relation to premises is defined as meaning “a person
exercising such control over the state of premises that it is reasonable
to impose on 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.” It follows from this definition that there may be
two or more occupiers of the same premises. Furthermore, a person on
premises may be treated as the visitor of one of the occupiers and as a
recreational user or trespasser in relation to others.
(8)
In section 1 (1) “danger” is defined “in relation to any premises” as
meaning “a danger due to the state of the premises”. The exclusion of
activities from the provisions of the l995 Act is reinforced by the use
of the words “as such” in section 2 (1).
(9)
In summary, the duty owed by the occupier of land to recreational
users and trespassers under section 4 of the l995 Act is a duty not to
14
cause injury intentionally and “not to act with reckless disregard”.
Section 4 (2) indicates that the concept of “acting with reckless
disregard” includes omissions and is not confined to subjective
recklessness but must be assessed by reference to “all the
circumstances of the case” including the mandatory criteria set out at
section 4 (2) (a) to (i) which include some subjective criteria
(knowledge of the occupier) and some objective criteria. These criteria
include the following which are relevant to any proposed public access
right over land:
“(d)
(10)
whether the danger was one against which, in all the
circumstances, the occupier might reasonably be
expected to provide protection………;
(e)
the burden on the occupier of eliminating the danger or
of protecting the person……..from the danger;
(f)
the character of the premises…….;
(g)
the conduct of the person, and the care which he or she
may be reasonably expected to take for his or her own
safety……..”
Section 4 (4) of the l995 Act deals with stiles, footbridges and other
structures on premises which may be provided (not necessarily by the
occupier) to assist recreational use and specifies as follows:
“(4)
Notwithstanding subsection (1), where a structure on
premises is or has been provided for use primarily by
recreational users, the occupier shall owe a duty
towards such users in respect of such a structure to take
reasonable care to maintain the structure in a safe
condition:
Provided that, where a stile, gate, footbridge or other
similar structure on premises is or has been provided
not for use primarily by recreational users, the
occupier’s duty towards such a recreational user thereof
in respect of such structure shall not be extended by
virtue of this subsection.”
(11)
The effect of section 4 (4) is that the duty of an occupier in respect of a
structure “provided for use primarily by recreational users” is extended
to a duty to ensure that the condition of the structure is kept safe.
(12)
Liability of the owners of dogs is dealt with in section 21 of the
Control of Dogs Act l986. By section 21 (1) the owner of a dog is
liable in damages for damage caused in an attack on any person by the
dog and it is not necessary to show that the injury or damage was
attributable to neglect on the part of the owner. By section 21 (3) “a
15
person is liable in damages for any damage caused by a dog kept on
any premises or structure to a person trespassing thereon only in
accordance with the rules of law relating to liability for negligence.”
(13)
The liability of occupiers of land and others for injuries accidentally
caused during the course of their activities on the land is governed by
the common law rules which determine liability for negligence.
(ii)
(1)
Interaction between right of public access and occupiers’
liability legislation in some other jurisdictions
We have looked at the various statutory models which deal with
occupiers’ liability in other jurisdictions.
England and Wales and Northern Ireland
(2)
The l957 legislation in England and Wales and in Northern Ireland
defines the duty of care owed by an occupier of land to “visitors”
which are the equivalent of the common law categories of invitees or
licensees. In general, the duty of care owed to visitors under the l957
legislation is a “duty to take such care as in all the circumstances of the
case is reasonable to see that the visitor will be reasonably safe in
using the premises for the purpose for which he is invited or permitted
by the occupier to be there”.
(3)
We note that in section 13 of the Countryside and Rights of Way Act
2000 those entering land in exercise of the statutory right of access
under that Act and other legislation are not deemed to be “visitors” of
the occupier of the premises for the purposes of the Occupiers’
Liability Act l957. Article 52 of the Access to the Countryside
(Northern Ireland) Order l983 has the same effect and modifies section
1 of the Occupiers’ Liability Act (Northern Ireland) l957 by specifying
that a person entering premises in exercise of the rights conferred by
access agreement or order under the l983 Order is not, for the purposes
of the l957 Act, a visitor of the occupier of those premises.
(4)
In England and Wales the provisions of the Occupiers’ Liability Act
l984 govern the liability at law of occupiers to entrants onto land who
do not come within the category of “visitor”. The duty owed is to see
that the entrant does not suffer injury by reason of identifiable dangers
which the occupier is or ought to be aware of and against which he
may reasonably be expected to offer some protection.
(5)
This Act has been amended by section 13 (2) and section 13 (3) of the
Countryside and Rights of Way Act 2000 which modify the statutory
duty owed in cases where the right of public access conferred by
section 2 of the 2000 Act is exercisable. Firstly, section 13 (3) of the
16
2000 Act requires that, in determining whether any duty is owed by the
occupier of land under section 1 of the l984 Act and the extent of any
such duty, regard must be had to the following:
(a)
(b)
(c)
the fact that the existence of the statutory right ought not to
place an undue burden (financial or otherwise) on the occupier;
the importance of maintaining the character of the countryside
including features of historic, traditional or archaeological
interest; and
codes of conduct given under section 20 of the 2000 Act.
(6)
Secondly, section 13 (2) of the 2000 Act excludes any duty of
occupiers “resulting from the existence of any natural feature of the
landscape or of any river, stream, ditch or pond, whether or not a
natural feature” and any risk of a person suffering injury when passing
over, under or through any wall, fence or gate except by proper use of
a gate or a stile. This is subject to a proviso that an occupier may still
owe a duty in respect of a natural feature of the landscape or to persons
crossing walls and gates “where the danger concerned is due to
anything done by the occupier (a) with the intention of creating that
risk or (b) being reckless as to whether that risk is created.”
(7)
The provisions of the Occupiers’ Liability Act l957 and the Occupiers
Liability Act l984 in England and Wales refer to “dangers due to the
state of the premises or to things done or omitted to be done on them”:
see section 1 (1) of the Occupiers’ Liability Act l957 and section 1 (1)
of the Occupiers Liability Act l984.
Scotland
(8)
In Scotland the duty owed to recreational users availing of the statutory
public access right is governed by section 5 (2) of the 2003 Act which
states that “the extent of the duty of care owed by an occupier of land
to another person present on the land is not…….affected by this Part of
this Act or by its operation.” The effect of this is that the duty of care
is governed by the provisions of the Occupiers’ Liability (Scotland)
Act l960. The circumstances which may be taken into consideration
for the purposes of the l960 Act include whether or not the occupier of
the land is acting “responsibly” as required by section 3 of the Act and
section 10 which enables Scottish National Heritage to draw up and
issue a code giving guidance to “recreational users” and “owners” on
responsible conduct both in relation to land which is “access land” and
land which may be contiguous to access land.
(9)
A final feature of note in the Scottish legislation is that where an
access path is delineated under the compulsory powers under section
21 of the 2003 Act the relevant administering authority has the duty of
creating and maintaining the path. By section 21 (3A) “regard may be
had, in determining whether a local authority has control of a path for
the purposes of the Occupiers’ Liability (Scotland) Act l960 to the
17
duties imposed by subsection (3) above.” The effect is that where a
local authority has a duty of creating or maintaining a path under the
compulsory powers, it may be deemed to be an occupier, or a joint
occupier of the path having regard to the definition of “occupier” in the
Scottish legislation which extends to those occupying or having control
of land.
(10)
The United Kingdom legislation relating to public access to land for
recreational use which we have examined makes clear that common
law rules relating to highways do not apply. Designation or use of
these paths will never result in them becoming highways either at
common law or under statutory provisions. The rules governing
liability for highway nuisance do not apply. The rules dealing with the
liability of highway authorities for injury or damage caused by
inadequate maintenance of the highway are of no relevance. Liability
at law for injury to entrants as a result of the condition of these paths
and the structures on them is governed solely by the occupiers’ liability
legislation.
(11)
Section 20 of the Scottish Act dealing with paths created by voluntary
agreement between the landowner and the administering authority,
states that these agreements may deal with location, creation and
maintenance of the paths and “shall be on such terms and conditions as
to payment or otherwise as may be specified”. These agreements may
include terms dealing with responsibility for creating and maintaining
ways and structures. The specified terms may include provisions
relating to indemnity in respect of liability at law under occupiers’
liability legislation.
(iii)
Discussion and recommendations
State of premises
(1)
The Occupiers’ Liability Act l995 was passed following a lengthy
consultation process. In l966 a committee known as the “Advisory
Committee on Law Reform” was formed and it commissioned a study
which resulted in the Report on “Reform of the Law of Occupiers’
Liability in Ireland” published in November l974. The Law Reform
Commission published a Consultation Paper on “Occupiers’ Liability”
in l993 and a “Report on Occupiers’ Liability” in l994.
(2)
Section 4 of the 1995 Act represents a balancing exercise by the
Oireachtas between the property and occupation rights of landowners
and others using land and the requirement that entrants on land be
protected from death or serious injury.
(3)
There has been criticism in some quarters of section 4 of the l995 Act.
The provisions of the section are perceived by its critics as being
unclear and as encouraging unmeritorious claims. However, claims
based on the proposition that liability under the occupiers’ liability
18
legislation may be established merely because injury is foreseeable
have been rejected both in Ireland and in England: see the decision of
the Supreme Court in Weir Rodgers v. S.F. Trust Limited (2005) 1
IR 47 and the decision of the House of Lords in Tomlinson v.
Congleton Borough Council (2004) AC 46.
(4)
The former decision emphasises the point that the duty under section 4
of the l995 Act replaces any duty which might have formerly existed at
common law and that the obligation owed by the occupier to a
“recreational user” or “trespasser” is much lower than the obligation
owed by an occupier to a “visitor” under section 3 of the l995 Act (“the
common duty of care”). The decision also emphasises that even if the
plaintiff in that case were a “visitor” her claim would still have failed
because she subjected herself to an obvious danger.
(5)
In any legislation establishing a public access right, members of the
public exercising the access rights will be “recreational users” as
defined in section 1 (1) of the l995 Act and the duties of occupiers to
them will be those set out in section 4 (1) of that Act. We feel that it
would be difficult to justify a modification of the obligation to
recreational users exercising the access right which has the effect of
reducing the duty owed by occupiers to them below the threshold set
out in section 4 (1) of the l995 Act.
(6)
Section 4 of the l995 Act may require to be amended to take into
account the nature of the rights conferred and obligations imposed by
any proposed legislation giving a right of public access to land. This
can be achieved by augmenting the existing list of mandatory statutory
criteria which courts are obliged to consider in deciding whether or not
an occupier of land is in breach of the duty owed to recreational users
under section 4 (1).
(7)
We note that the definition of “visitor” in section 1 (1) of the l995 Act
includes “an entrant as of right”. We recommend that any proposed
legislation giving proposed access rights includes a provision which
makes clear that those exercising the statutory access right are not
deemed to be “entrants as of right” coming within the definition of
“visitor” for the purposes of the l995 Act.
(8)
We recommend that any legislation providing for a public access right
modifies section 4 (2) of the l995 Act by obliging courts to give due
regard to the requirement that those exercising the statutory access
right act responsibly and to the legislative objective of ensuring that
creation of the statutory right of access does not impose any additional
disproportionate financial or other obligations on the occupiers of land.
We recommend that among the matters which courts considering
claims ought to have regard to should be the content of any code of
conduct relating to responsible exercise of access issued under the
provisions of the legislation.
19
Activities
(9)
The issue of whether proposed occupiers’ liability legislation ought to
be extended to include liability for activities on land was considered by
the Law Reform Commission at paragraphs 5.10 to 5.12 of its Report
on Occupiers Liability published in l994. The Commission
recommended at that time that the proposed occupiers liability
legislation “should relate only to “static” conditions on the occupier’s
property and to such activities as are necessarily connected with the
occupation of property.” The Occupiers’ Liability Act l995 does not
deal with the liability of the occupier of premises for injury caused as
the result of the carrying out of activities except to the extent that these
activities result in a danger due to the “state of the premises”.
(10)
Many activities carried out on land have a potential to cause injury.
These activities include farm activities such as the keeping and moving
of animals and machinery. The activities may be carried on by
entrants on the land who are not necessarily the “occupier” as defined
in the l995 Act. They may be carried out by employees or independent
contractors or members of an occupier’s family and other visitors who
are on land by permission or as of right for other purposes such as
hunting, shooting and fishing.
(11)
Injury caused by activities on land may in some respects be different
from injury caused as a result of the state of the land. In the former
case the cause of the injury is often direct human intervention by those
who are physically present and controlling the activity (eg the operator
of a tractor or farm machinery or the person who is out shooting).
(12)
The existence and extent of the duty of care in negligence of occupiers
and others carrying out activities on lands to other entrants depends on
a number of factors. Liability is not imposed merely because it is
foreseeable that some other person will suffer an injury as a result of a
failure to take a precaution. There must be a sufficient relationship of
“proximity” or “neighbourhood” between the person carrying out the
activity and the person injured. In this context an issue arises in any
given case of whether it is “just and reasonable that the law should
impose a duty of a given scope on the defendant for the benefit of the
plaintiff”: see Keane C.J. in Glencar Exploration plc v. Mayo
County Council (No. 2) (2002) 1 I.R. 112 at 138 and Kearns J. in
Wildgust v. Bank of Ireland (2006) 1 I.R. 570 at 599-600.
(13)
If legislation gives a public right of access to land for recreational
purposes the main issue in any action claiming damages for injury by
activities on land is likely to be the extent to which those carrying out
the activities may be expected to anticipate the presence of recreational
users and take steps for their safety. There is a distinction between the
position of the person who permits others to be on land provided he is
not put to trouble or expense in maintaining his property and the
person who claims for himself a right to engage in activity on land
20
without exercising reasonable care: see Rogers (l957) C.L.J. 39 at page
54 quoted page 413 para. 9.21 of the 17th edition of Winfield &
Jolowitz on Torts (R.V.H. Rogers ed.). Any legislation giving a public
access right will introduce a statutory permission.
(14)
(15)
We do not believe that there is a compelling case for the introduction
of a reduced duty of care to recreational users availing of rights under
public access legislation. However, the purpose of this legislation and
the nature of the rights conferred by it are relevant in determining
whether liability ought to be imposed. Accordingly, we suggest that
any legislation includes a provision obliging courts considering
liability in negligence to have regard to the following:
(a)
a requirement that those exercising the statutory access right act
responsibly and with due regard for any activities being
conducted on land;
(b)
the provisions of any code of conduct issued under the access
legislation for the guidance of recreational users, landowners
and other persons engaged in activities on land;
(c)
the principle that the existence of the statutory right ought not
to impose significant additional financial or other
responsibilities on occupiers and users of land.
The purpose of these suggested provisions is to assist courts in
determining liability issues in accordance with established principles in
the law of negligence. In practice, courts considering claims by
recreational users arising from injuries caused by activities on land are
likely to have regard to criteria similar to those set out in section 4 (2)
of the l995 Act.
Structures and paths
(16)
We have already referred to the provisions of the Land Reform
(Scotland) Act 2003 concerning who may be deemed to be the
“occupier” of paths established in the exercise of the compulsory
power under section 21 of that Act. These provisions do not apply to
paths established by agreement under the provisions of section 20.
Members of the public using paths designated under legislation will be
“recreational users” for the purposes of the Occupiers’ Liability Act
l995. Section 4 (4) of the l995 Act will then operate to increase the
duty owed by “the occupier” to recreational users only in respect of
stiles, gates, footbridges and other structures “provided for use
primarily by recreational users”.
(17)
We suggest that where these structures are provided by an
administering authority, then that authority should be deemed to be an
“occupier” of these structures for the purposes of the l995 Act. This
rule should also apply in cases where these structures have been
21
provided otherwise than by the occupier and are subsequently adopted
by the administering authority as part of a designated path.
(18)
Landowners are unlikely to enter into agreements to install access
structures or permitting administering authorities to erect structures if
these agreements do not include indemnity provisions. The legislation
could include such indemnity provisions or provide that the
administering authority is deemed to be an “occupier” of paths
established or confirmed in exercise of the statutory power. The
provisions of section 4 (1) of the l995 Act will apply to such paths
except to the extent that they comprise “structures provided for use
primarily by recreational users” which will come within section 4 (4).
Animals
(19)
Section 21 (3) of the Control of Dogs Act l986 is designed to deal with
the use of dogs as guard dogs. Dog owners are strictly liable for
injuries caused by dogs to persons other than trespassers. The effect of
section 21 (3) of the l986 Act is that where a person becomes a
trespasser on land the duty of the dog owner to him is reduced and falls
to be “determined only in accordance with negligence principles”.
(20)
It is sometimes difficult to determine whether a person is or is not a
trespasser. Normally, there is an implied invitation to members of the
public to come to the door of a private residence. A “beware of the
dog” sign at the gates leading to a residence is not necessarily
inconsistent with this.
(21)
The presence of dogs (often in numbers) in the vicinity of farm
buildings is a feature of rural life. Access legislation may result in the
presence of recreational users who may or may not be “trespassers” in
the technical sense in which that word is used in section 21 (3) of the
l986 Act depending on whether or not they have deviated from “access
land” or have otherwise exceeded the ambit of their statutory
permission.
(22)
Legislation providing for a public access right must, in order to be
effective, include measures which ensure that landowners and others
respect the entitlement of members of the public to exercise that right.
This means that statutory provisions or codes of practice under any
legislation must include effective measures to counter activities
designed to discourage exercise of the right. These provisions should
deal with the control of dogs and also with the safe keeping of bulls
and other animals which have a potential to be dangerous.
(23)
We have considered whether section 21 of the l986 Act ought to be
modified in the context of any proposed public access legislation. An
advantage of maintaining the strict liability regime in the context of
this legislation is that it would counter activities by landowners
designed to discourage exercise of the statutory right. An adverse
22
consequence is that rural landowners will be exposed to strict liability
if their dogs cause injury to uninvited strangers. Any public access
legislation ought to be based on a principle that the statutory right of
access may only be exercised in a responsible manner and with due
regard for legitimate competing rights of landowners and other land
users. It should follow that the duty of dog owners to those exercising
the statutory right of access should be determined only in accordance
with negligence principles and should be the same duty of care as is
owed by occupiers and other users of land in respect of their activities.
(24)
An advantage of this approach is that it does not seek to distinguish
between entrants on land who are exercising their rights in accordance
with the access legislation and those who become trespassers because
they act in excess of their statutory permission. Furthermore, the
provisions of any code of conduct issued under the access legislation
for the guidance of recreational users, landowners and others may
include rules relating to the control of dogs which will be relevant in
determining whether the owner of any dog has been negligent in
failing to exercise proper control over it. Any other statutory criteria
which a court is obliged to consider in determining the existence and
scope of a duty of care in negligence would also be relevant. These
may include a principle that the existence of the right of access ought
not to place undue burdens (financial or otherwise) on other occupiers
or users of land and a requirement that those exercising the right of
access act responsibly and with due regard for activities being
conducted on the land.
Appendix 1
Membership of the Group
The Group is made up as follows:
Mr. Alexander J. Owens, Senior Counsel (Chairperson)
Mr. Seamus Carroll, Department of Justice, Equality & Law Reform,
Mr. Damien Moloney, Advisory Counsel, Office of the Attorney General,
Ms. Finola Moylette, Department of Community, Rural & Gaeltacht Affairs
Mr. Mícheál O Corcora, Department of Community, Rural & Gaeltacht Affairs
Mr. Steven Fadian, Department of Community, Rural & Gaeltacht Affairs (Secretary)
23
The Group would like to thank Mr. Laurence Keating from the Department of
Community, Rural & Gaeltacht Affairs for his assistance in sourcing reference
documentation.
Appendix 2
Text of Article 40.3.1 and Article 40.3.2 of the
Constitution of Ireland
Text of Article 43 of the Constitution of Ireland
Text of Article 1 of Protocol 1 to the European
Convention for the Protection of Human Rights and
Fundamental Freedoms
Personal Rights
24
Article 40
3. 1° The State guarantees in its laws to respect, and, as far as practicable, by its
laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from
unjust attack and, in the case of injustice done, vindicate the life,
person, good name, and property rights of every citizen.
Private Property
Article 43
1. 1° The State acknowledges that man, in virtue of his rational being, has the
natural right, antecedent to positive law, to the private ownership of external
goods.
2° The State accordingly guarantees to pass no law attempting to
abolish the right of private ownership or the general right to transfer,
bequeath, and inherit property.
2. 1° The State recognises, however, that the exercise of the rights mentioned in
the foregoing provisions of this Article ought, in civil society, to be regulated
by the principles of social justice.
2° The State, accordingly, may as occasion requires delimit by law the
exercise of the said rights with a view to reconciling their exercise with
the exigencies of the common good.
25
European Convention for the protection of Human Rights and
Fundamental Freedoms
Protocol I
1. Enforcement of certain Rights and Freedoms not included in Section I of the
Convention
The Governments signatory hereto, being Members of the Council of Europe,
Being resolved to take steps to ensure the collective enforcement of certain rights and
freedoms other than those already included in Section I of the Convention for the
Protection of Human Rights and Fundamental Freedoms signed at Rome on 4th
November, 1950 (hereinafter referred to as 'the Convention'),
Have agreed as follows:
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject to
the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other contributions or
penalties.
Appendix 3
26
Text of the Occupiers Liability Act 1995
Occupiers Liability Act 1995
An act to amend the law relating to the liability of occupiers of premises (Including
land) in respect of dangers existing on such premises for injury or damage to persons
or property while on such premises and to provide for connected matters.
[17th June, 1995]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Interpretation.
1—(1) In this Act unless the context otherwise
requires—
"damage" includes loss of property and injury to an
animal;
"danger", in relation to any premises, means a danger
due to the state of the premises;
"entrant", in relation to a danger existing on premises,
means a person who enters on the premises and is not
the sole occupier;
"injury" includes loss of life, any disease and any
impairment of physical or mental condition;
"occupier", in relation to any premises, means 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;
"premises" includes land, water and any fixed or
moveable structures thereon and also includes vessels,
vehicles, trains, aircraft and other means of transport;
27
"property", in relation to an entrant, includes the
property of another in the possession or under the
control of the entrant while the entrant is on the
premises of the occupier;
"recreational activity" means any recreational activity
conducted, whether alone or with others, in the open air
(including any sporting activity), scientific research and
nature study so conducted, exploring caves and visiting
sites and buildings of historical, architectural,
traditional, artistic, archaeological or scientific
importance;
"recreational user" means an entrant who, with or
without the occupier's permission or at the occupier's
implied invitation, is present on premises without a
charge (other than a reasonable charge in respect of the
cost of providing vehicle parking facilities) being
imposed for the purpose of engaging in a recreational
activity, including an entrant admitted without charge to
a national monument pursuant to section 16 (1) of the
National Monuments Act 1930, but not including an
entrant who is so present and is—
( a ) a member of the occupier's family who is
ordinarily resident on the premises,
( b ) an entrant who is present at the express invitation
of the occupier or such a member, or
( c ) an entrant who is present with the permission of the
occupier or such a member for social reasons connected
with the occupier or such a member;
"trespasser" means an entrant other than a recreational
user or visitor;
"visitor" means—
(a) an entrant, other than a recreational user, who is
present on premises at the invitation, or with the
permission, of the occupier or any other entrant
specified in paragraph (a), (b) or (c) of the definition of
"recreational user",
(b) an entrant, other than a recreational user, who is
present on premises by virtue of an express or implied
term in a contrAct and
(c) an entrant as of right,
while he or she is so present, as the case may be, for the
purpose for which he or she is invited or permitted to be
there, for the purpose of the performance of the contract
28
or for the purpose of the exercise of the right, and
includes any such entrant whose presence on premises
has become unlawful after entry thereon and who is
taking reasonable steps to leave.
(2) In this Act—
(a) a reference to a section is to a section of this Act
unless it is indicated that reference to some other
enactment is intended,
(b) a reference to a subsection is to the subsection of the
provision in which the reference occurs, unless it is
indicated that reference to some other provision is
intended, and
(c) a reference to any enactment shall be construed as a
reference to that enactment as amended, adapted or
extended by or under any subsequent enactment
including this Act.
Replacement of
common law rules
2 - (1) Subject to section 8, the duties, liabilities and
rights provided for by this Act shall have effect in place
of the duties, liabilities and rights which heretofore
attached by the common law to occupiers of premises as
such in respect of dangers existing on their premises to
entrants thereon.
(2) This Act does not apply to a cause of action, which
accrued before the commencement of this Act.
Duty owed to visitors.
3 — (1) An occupier of premises owes a duty of care
("the common duty of care") towards a visitor thereto
except in so far as the occupier extends, restricts,
modifies or excludes that duty in accordance with
section 5.
(2) In this section "the common duty of care" means a
duty to take such care as is reasonable in all the
circumstances (having regard to the care which a visitor
may reasonably be expected to take for his or her own
safety and, if the visitor is on the premises in the
company of another person, the extent of the
supervision and control the latter person may
reasonably be expected to exercise over the visitor's
activities) to ensure that a visitor to the premises does
not suffer injury or damage by reason of any danger
existing thereon.
Duty owed to recreational
4 — (1) In respect of a danger existing on premises, an
29
Users or trespassers
occupier owes towards a recreational user of the
premises or a trespasser thereon ("the person") a duty—
(a) not to injure the person or damage the property of
the person intentionally, and
(b) not to act with reckless disregard for the person or
the property of the person,
except in so far as the occupier extends the duty in
accordance with section 5.
(2) In determining whether or not an occupier has so
acted with reckless disregard, regard shall be had to all
the circumstances of the case, including—
(a) whether the occupier knew or had reasonable
grounds for believing that a danger existed on the
premises;
(b) whether the occupier knew or had reasonable
grounds for believing that the person and, in the case of
damage, property of the person, was or was likely to be
on the premises;
( c ) whether the occupier knew or had reasonable
grounds for believing that the person or property of the
person was in, or was likely to be in, the vicinity of the
place where the danger existed;
( d ) whether the danger was one against which, in all
the circumstances, the occupier might reasonably be
expected to provide protection for the person and
property of the person;
( e ) the burden on the occupier of eliminating the
danger or of protecting the person and property of the
person from the danger, taking into account the
difficulty, expense or impracticability, having regard to
the character of the premises and the degree of the
danger, of so doing;
( f ) the character of the premises including, in relation
to premises of such a character as to be likely to be used
for recreational activity, the desirability of maintaining
the tradition of open access to premises of such a
character for such an activity;
( g ) the conduct of the person, and the care which he or
she may reasonably be expected to take for his or her
own safety, while on the premises, having regard to the
extent of his or her knowledge thereof;
( h ) the nature of any warning given by the occupier or
another person of the danger; and
( i ) whether or not the person was on the premises in
the company of another person and, if so, the extent of
the supervision and control the latter person might
reasonably be expected to exercise over the other's
activities.
30
(3) (a) Where a person enters onto premises for the
purpose of committing an offence or, while present
thereon, commits an offence, the occupier shall not
be liable for a breach of the duty imposed by
subsection (1) (b) unless a court determines
otherwise in the interests of justice.
(b) In paragraph (a) "offence" includes an
attempted offence.
(4) Notwithstanding subsection (1), where a structure
on premises is or has been provided for use primarily by
recreational users, the occupier shall owe a duty
towards such users in respect of such a structure to take
reasonable care to maintain the structure in a safe
condition:
Provided that, where a stile, gate, footbridge or other
similar structure on premises is or has been provided
not for use primarily by recreational users, the
occupier's duty towards a recreational user thereof in
respect of such structure shall not be extended by virtue
of this subsection.
Modification of occupiers'
duty to entrants.
5— (1) An occupier may by express agreement or
notice extend his or her duty towards entrants under
sections 3 and 4.
(2) (a) Subject to this section and to section 8, an
occupier may by express agreement or notice restrict,
modify or exclude his or her duty towards visitors under
section 3.
( b ) Such a restriction, modification or exclusion shall
not bind a visitor unless—
(i) it is reasonable in all the circumstances, and
(ii) in case the occupier purports by notice to so restrict,
modify or exclude that duty, the occupier has taken
reasonable steps to bring the notice to the attention of
the visitor.
( c ) For the purposes of paragraph (b) (ii) an occupier
shall be presumed, unless the contrary is shown, to have
taken reasonable steps to bring a notice to the attention
of a visitor if it is prominently displayed at the normal
means of access to the premises.
(3) In respect of a danger existing on premises, a
restriction, modification or exclusion referred to in
subsection (2) shall not be taken as allowing an
occupier to injure a visitor or damage the property of a
visitor intentionally or to act with reckless disregard for
a visitor or the property of a visitor.
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(4) In determining for the purposes of subsection (3)
whether or not an occupier has acted with reckless
disregard, regard shall be had to all the circumstances of
the case including, where appropriate, the matters
specified in subsection (2) of section 4.
(5) Where injury or damage is caused to a visitor or
property of a visitor by a danger of which the visitor
had been warned by the occupier or another person, the
warning is not, without more, to be treated as absolving
the occupier from liability unless, in all the
circumstances, it was enough to enable the visitor, by
having regard to the warning, to avoid the injury or
damage so caused.
Duty of occupiers towards
strangers to contracts.
6— (1) The duty which an occupier of premises owes to
an entrant under this Act shall not be capable of being
modified or excluded by a contract to which the entrant
is a stranger, whether the occupier is bound by the
contract to permit the entrant to enter or use the
premises or not.
(2) For the purposes of this section, an entrant shall be
deemed to be a stranger to a contract if the entrant is not
for the time being entitled to the benefit of the contract
as a party to it or as the successor by assignment or
otherwise of a party to it, and, accordingly, a party to
the contract who has ceased to be so entitled shall be
deemed to be a stranger to the contract.
(3) This section applies to contracts entered into before
the commencement of this Act as well as to those
entered into after such commencement.
Liability of occupiers
for negligence of
independent contractors.
7— An occupier of premises shall not be liable to an
entrant for injury or damage caused to the entrant or
property of the entrant by reason of a danger existing on
the premises due to the negligence of an independent
contractor employed by the occupier if the occupier has
taken all reasonable care in the circumstances
(including such steps as the occupier ought reasonably
to have taken to satisfy himself or herself that the
independent contractor was competent to do the work
concerned) unless the occupier has or ought to have had
knowledge of the fact that the work was not properly
done.
Saver.
8 — Nothing in this Act shall be construed as affecting
any enactment or any rule of law relating to—
32
(a) self-defence, the defence of others or the defence of
property,
(b) any liability imposed on an occupier as a member of
a particular class of persons including the following
classes of persons:
(i) persons by virtue of a contract for the hire of, or for
the carriage for reward of persons or property in, any
vessel, vehicle, train, aircraft or other means of
transport;
(ii) persons by virtue of a contract of bailment; and
(iii) employers in respect of their duties towards their
employees, or
( c ) any liability imposed on an occupier for a tort
committed by another person in circumstances where
the duty imposed on the occupier is of such a nature that
its performance may not be delegated to another person.
Short title and
commencement.
9— (1) This Act may be cited as the Occupiers'
Liability Act 1995.
(2) This Act shall come into operation one month after
the date of its passing.
Appendix 4
Section 21 of Control of Dogs Act 1986
33
Liability of owner
for damage by dog.
21 — (1) The owner of a dog shall be liable in damages
for damage caused in an attack on any person by the
dog and for injury done by it to any livestock; and it
shall not be necessary for the person seeking such
damages to show a previous mischievous propensity in
the dog, or the owner's knowledge of such previous
propensity, or to show that such injury or damage was
attributable to neglect on the part of the owner.
(2) Where livestock are injured by a dog on land on to
which they had strayed, and either the dog belonged to
the occupier of the land or its presence on the land was
authorised by the occupier, a person shall not be liable
under this section in respect of injury done to the
livestock, unless the person caused the dog to attack the
livestock.
(3) A person is liable in damages for any damage
caused by a dog kept on any premises or structure to a
person trespassing thereon only in accordance with the
rules of law relating to liability for negligence
( 4 ) ( a ) Any damage or injury for which a person is
made liable under this section shall be deemed to be
attributable to a wrong within the meaning of the Civil
Liability Act, 1961, and the provisions of that Act shall
apply accordingly.
( b ) Sections 11 (2) (a) and 11 (2) (b) of the Statute of
Limitations, 1957, shall apply to such damage.
Appendix 5
Reference Documentation consulted by the Expert
Working Group
34
Access to the Open Countryside in England And Wales 1998 Consultation Paper
Access to the Countryside in England and Wales, The Governments Framework for
Action;
Access to the Countryside (Northern Ireland) Order 1983 (1983 No. 1895 (N.I. 18)
Analysis of Responses to the Access to the Open Countryside Consultation Paper
Animals Act 1985
Appraisal of Options on Access to the Open Countryside of England and Wales,
March 1999
Australian Recreational Greenways Act 2000
Comhairle na Tuaithe information booklet
Comhairle na Tuaithe, National Countryside Recreation Strategy
Consultation paper on Access to the Seashore (Natural England)
Control of Dogs Act 1986
Countryside Access Regulations S.I. 1994/2349
Countryside and Rights of Way Act 2000 (Explanatory Notes)
Countryside and Rights of Way Act 2000
Countryside (Scotland) Act 1967 (Scotland)
35
Court of Human Rights Judgement on removal of fishing rights in Finland
Forestry Act 1988
Heritage Act 1995
Irish Creamery Milk Suppliers Association Proposals on Access to Land
Irish Farmers Association Proposals on Access
Irish Sports Council Act 1999
Labour Party Bill on Access to the countryside
Land Reform (Scotland) Act 2003 (Scotland)
Law Reform Commission Consultation Paper on Occupiers Liability 1993
Law Reform Commission Report on Occupiers Liability 1994
Occupiers Liability Act 1995
Occupiers Liability Act 1957 (England and Wales)
Occupiers Liability Act 1984 (England and Wales)
Occupiers Liability Act 1957 (Northern Ireland)
Occupiers Liability (Scotland) Act 1960 (Scotland)
Occupiers Liability Act 1962 (New Zealand)
36
Private Members Bill by the Green Party on Access 2004
REPS 3 Hand book
Report on “Reform of the Law on Occupiers’ Liability in Ireland” November 1974
Residential Tenancies Act 2004
Rural Environmental Protection Scheme (REPS)
-
General Information on the scheme
-
Terms & Conditions of the scheme
-
EU Council Regulations;
1257/1999
1783/2003
445/2002
817/2004
Special Areas of Conservation / EU Habitats Directive
Walkways Act 1990 (New Zealand)
Wildlife Act 1976
37