Occupier's Liability - CASE LIST

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Split between Common Law (activity on premises) and Legislation (state of the premises)

Hackett v Calla Associates - plaintiff was thrown out of club and started a riot - suffered injuries due to activity on premises and could not claim under the act which was only available for state of the premises.

Turner v Curragh Racecourse [2020] - plaintiff was injured by galloping horses and could therefore claim under the common law.

Common law duty of care is higher for activity on premises than state of premises duty of care under the act.

Common Law

Contractual Entrants, Invitees, Licensees, Trespassers.

Contractual Entrants - duty governed by contract but courts inferred duty to take reasonable care in respect of entrants.

O'Gorman v Ritz - a cinema patron

Callaghan v Killarney Race Company - spectators at sporting event.

Invitees - duty to warn invitees of any known dangers or dangers which ought to be known.

White v France - customer making a complaint

Hayward v Drury Lane Theatre - auditioning actress

Indermaur v Dames - a gas-fitter lawfully on the premises - fell through an uncovered hole - entitled to reasonable care to protect from unusual dangers

Licensees - duty to ensure there were no concealed dangers on premises

Southcote v Stanley - a guest at a house

Dunster v Abbott - a person entering premises to solicit business or beg for money

Lawery v Walker - a person crossing a known right of way or shortcut.

Trespassers - duty not to act with reckless disregard (until McNamara v ESB)

United Zinc - no liability to trespasser for having a pond which was poisonous

G'Central R'Way v Bates - no liability for an unfenced saw-pit

Deane v Clayton - no liability for broken glass on a wall to prevent intruders

Bird v Holbrook - incurred liability for a spring-gun trap - intentional harm?

Challenges to the Common Law Orthodoxy -

McNamara v ESB - boy severely injured when he was electrocuted on the premises of the defendant - the defendant knew of the trespassing children and that they played in the area - it did nothing to safeguard against this or stop their trespassing.

New Duty of care under common law - a reasonably foreseeable trespasser is owed the general duty of care - must take reasonable steps to prevent harm -

Current position - unexpected trespasser - must not act with reckless disregard -

reasonably foreseeable trespasser - must take reasonable steps to prevent the harm

Foley v Musgraves - duty to invitees was to take reasonable care in all the circumstances to see that the premises are reasonably safe

Duty of care for invitees, licensees and reasonably foreseeable trespassers is the same - occupier must take reasonable care in the circumstances.

Statutory Footing

Occupier - Keegan v Sligo - occupier is the person exercising control over the property - can be more than one at once.

Danger - must be a danger due to state of premises.

Premises - broadly construed and can be almost anything - land, water, fixed or movable - ladders, machinery, lifts, etc.

Damage - to person, property or animals.

Injury - loss of life, a disease, any impairment of physical or mental condition.

Recreational Activity - anything which is in the open air and considered a recreation.

Reckless disregard - (a) did occupier know or ought to know there was a danger on premises (b) did occupier know or have reason to know that the person was on the premises (c) did occupier know or was he likely to know the person was in the vicinity of the existing danger (d) was the danger one which the occupier could reasonably be expected to provide protection to the person (e) the burden of eliminating the danger or protecting the person from it (f) character of the premises - would it be used for recreational activity (g) conduct of the person and the care he would be expected to take (h) the nature of any existing warnings and (i) whether the person is in the company of another and the degree of control they should have over them.

Power v Governor of Cork Prison - duty owed to prisoner but could have discharged it by putting mats down or drying showers.

McDonald v Fossway - plaintiff suffered injury when going down a dimly lit stairs with no handrail in a restaurant - duty existed.

Visitors - lawfully on premises with permission - duty is reasonable care in all circumstances to ensure no injury or damage.

(1) the level of care the visitor can be expected to take for their safety and (2) company of others and degree of control.

Fitzgerald v South Dublin County Council - precautions existed so no reckless disregard for plaintiff who cut knee on glass.

Heaves v Westmeath - considered a visitor if you pay to enter the premises.

Newman v Cogan - standard of care is lower for an amateur than a professional.

Stokes v South Dublin County Council - visitor even though carrying out recreational activity of jogging past premises.

Walsh v Wexford Rugby - alcohol will be a factor in occupier's liability - no liability here where plaintiff was intoxicated.

Recreational Users - entrant who at the implied invitation of occupier, is on the premises for a recreational activity.

Duty owed is not to intentionally harm or act in reckless disregard.

Section 4(4) if a structure is on premises primarily for use of recreational users, the occupier owes a duty to maintain it.

Weir Rodgers v SF Trusts - plaintiff fell off a cliff - went through broken fence and ignored / didn't see the warning sign - objective test for reckless disregard - she was unable to recover in this case.

Ryan v Office of Public Works - defendant not liable for a plaintiff who tripped on bars at ankle level in a playground.

Wall v National Parks Service - cost of maintaining structures is a policy consideration for recreational users - no liability here where plaintiff injured due to poor maintenance of Wicklow Way walkways.

McGowan v Dun laoghaire - plaintiff paralyzed when jumping off a popular diving and swimming spot and hitting his head on rocks - duty of care existed as it was a well-known area, and this duty could have been discharged with a warning sign - this sign did not exist.

Sign only has to be present in known busy locations. No duty to move rocks in this situation.

Trespasser - any entrant without express or implied invitation of the occupier.

Duty owed - occupier must not intentionally injure them / their property nor act in reckless disregard.

Same duty as a recreational user...

Williams v TP Wallace - if a visitor over-extends his permission, he will become a trespasser.

Defences

Section 4(3) - no duty owed to a trespasser who enters premises to commit a crime.

Section 5 - duty owed can be modified but cannot fall below that duty owed to a trespasser / recreational user - must be done by express notice or agreement.

Section 7 - occupier never liable for danger existing on premises due to negligence of independent contractor as long as there was no negligence in the selection of that contractor and the defendant was not aware that the work was done deficiently.

Contributory Negligence - Kennedy v East Cork Foods - "downright carelessness" is what is required to satisfy contributory negligence in occupier's liability.

Is missing a warning sign sufficient for this??