Posted in Personal Injury Litigation on 04 March 2015

If you suffer an injury or damage on another person’s premises it is important to first establish who the occupier of that premises is and secondly to establish if that person owes you any duty in respect of the injury/damage caused.

The Occupiers’ Liability Act came into force in 1995 and governs recovery for injury/damage suffered by an entrant as a result of the dangerous state of an occupiers’ premises.

An occupier is defined in terms of his/her control over the state of the premises. The level of control that a person exercises over a premises is examined to assess if it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger. There can be more than one occupier and the extent of the duty owed is based on the degree of control and the class of entrant.  

Liability under the Act is based on dangers which are present due to the "state of the premises".

Categories of Entrants

There are three different categories of entrants under the Occupiers’ Liability Act and the duty owed depends on which category that entrant falls into. An entrant is defined within the Act as a "person who enters on the premises and is not the sole occupier". The Act makes a distinction between visitors, recreational users and trespassers.

Visitors

Visitors are defined as people who are present on the premises with permission or by invitation of the occupier, the occupier’s family or any person ordinarily resident on the premises, or an entrant present for social reasons.

Duty of Care Owed to Visitors: The occupier has a duty to take such care as is reasonable in all of the circumstances to ensure that a visitor on the premises does not suffer injury or damage due to a danger existing on the premises.

To determine the reasonable standard of care it is necessary to take into account:

  1. The level of care visitors are expected to exercise for their own safety.

  2. If visitors are in the company of others i.e. parents or a school supervisor, the level of supervision and control those persons can be expected to exercise over the visitors must be considered.  

For example, in the case of Power v Governor of Cork Prison [1] a prisoner slipped and fell in a toilet cubicle due to water on the floor which was caused by the fact that there were no hand towels or hand dryers provided.  The Court found that the occupier of that premises could be held liable for breach of duty of care owed if reasonable steps could have been take to prevent this injury. The occupier was found to be liable as reasonable steps could have been taken i.e. non-slip mats could have been placed in the toilet or the floor could have been replaced with non-slip tiles.

Recreational Users

A recreational user is a person present on a premises with or without permission/invitation. They must be on the premises free of charge (not including a small fee for parking) for the purposes of engaging in a recreational activity. Recreational activity includes any activities done in the open air i.e. sport activities, nature studies, exploring historical sites or buildings etc.

Duty of Care Owed to Recreational Users: An occupier owes a duty to avoid injuring recreational users intentionally and to avoid acting with reckless disregard for their safety. To decide if an occupier has acted with reckless disregard for a recreational users safety there are a number of factors taken into account such as whether the occupier knew that a danger existed on the premises and that the entrant was likely to be near it, the care an entrant is expected to take for his/her own safety and any warning given in respect of the danger etc.

In the case of Weir Rodgers v SF Trust Ltd [2] the Plaintiff decided to visit a local beauty spot and sit on the edge of a cliff to admire the scenery. Upon getting up she lost her footing and fell down the edge of the cliff. She subsequently sued the occupier of the land. The court found that the occupier was not liable for her injuries as there were obvious dangers attached to sitting on the edge of a cliff and she failed to take care for her own safety. It was also argued that a warning notice should have been placed on the land but the court rejected this argument as again the danger should have been obvious to the Plaintiff and the Defendant could not be said to have acted in reckless disregard for her safety.

Trespassers

Trespassers are entrants who do not have permission to be on the land and are not there for recreational purposes. Therefore they do not fall under the category of visitors or recreational users.

Duty of Care Owed to Trespassers: An occupier owes the same duty to trespassers as he/she does to recreational users i.e. to avoid injuring them intentionally and to avoid acting with reckless disregard for their safety. A number of factors, including those listed above, will be taken into account to see if the occupier has acted with reckless disregard. However, if a trespasser enters a premises with the intention of committing an offence then the above statutory duty does not apply.

Defences

Contributory negligence can operate as a partial or full defence and can be pleaded by an occupier in a case taken against him/her if he/she can prove that the Plaintiff was downright careless in respect of their own safety. If this is successfully pleaded as a full defence then the occupier will not be held liable. If it succeeds as a partial defence then the amount of damages that the occupier is liable to pay may be reduced accordingly. For example, in the case of McNamara v ESB [3] the court found an 11 year old minor to be contributory negligent as the minor had been repeatedly warned by his parents not to play near the ESB station and there were warning signs around the station which the young boy was capable of reading and understanding for himself.

Contributory negligence by the Plaintiff provides a defendant occupier with a full/partial defence as does any contribution to the injury by any other person in control such as a parent or school supervisor.


Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.


[1] (2005) IEHC 253
[2] (2005) 1 ILRM 471(SC)
[3] (1975) IR1


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