Public Liability

Terms and Conditions of Entry

In the case of public lands, they may be subject to byelaws made by the relevant body which apply. Sometimes these byelaws are made as rules and published. In other cases, they are posted up at entrances as well.

As a general rule, a private owner may place terms and conditions on its consent. The owner may erect signs and declare the limits of consent. These are effectively a statement of the permitted use of the land concerned.

There is no general right to roam through an open area or open land.  The public as a whole cannot obtain ownership by squatters’ rights. No general right is acquired by long use. It may be given by permission or exist in practice, but not as an established property right.

Implied Consent

They must not exceed the terms of the consent under which they entered. In many cases, consent will be implied. The terms of the implied consent are likely to be limited to the minimum use possible of the land for the purpose covered.

Therefore, if the purpose of the permission is to allow passage through the land: stopping and having a picnic, et cetera is unlikely to be impliedly permitted. The implied permission will usually be limited to a particular part of the land.

There may be a limit implied as to the number of persons on the land at once. Bringing pets, dogs and other things onto the land may be limited or disallowed. The terms of implied consent are largely a matter of common sense in the circumstances.

There is trespass where a person exceeds the terms of consent. Technically they can be deemed trespassers from the outset. This has consequences in determining the level of duty owed to the person concerned, which is even less than owed to recreational use. The person may be liable to be sued for technical trespass. They can be asked to leave.

Liability of Users

Persons on land with the consent of the or even without consent, themselves a general common law duty is to take care. They must not damage the owner’s property in any way. If they do so, they are liable for damages.

A person using land is liable for the consequences of his actions. If, for example, leaving a gate open is likely to cause loss, the person may be liable for such loss and damage if it ensues.

Activities such as lighting fires on land are very unlikely to be within the terms of implied consent. A person lighting fires or undertaking a risky or dangerous activity is likely to be strictly liable for all damage and loss either immediately by the fire or if it spreads and causes extensive damage. It will often be an offence under Forestry or Wildlife legislation.

Roads may be closed permanently under the local government acts and road acts.

Liability to Entrants

A long-standing complaint on the part of farmers and others about allowing people, walkers, river users and other recreational users to enter the land is the risk of liability for personal injury. The common law rule was that where a person entered land with permission, they were owed a higher duty than a trespasser.

Where somebody slipped and fell suffering personal injuries with perhaps significant consequences, there was a real risk that they would sue the landowner alleging breach of duties. As in other areas of negligence, liability might be found on the basis of some failure to warn about the dangers or risks that might have been obvious to somebody familiar with the land.

Once some element of liability was found the landowner or occupier was liable to compensate the person injured for all their damages, including pain and suffering economic loss past and future. There may or may not be insurance.

Although public liability insurance is not mandatory, in practice, it is very desirable. The presence of insurance tends to attract claims, but its absence leads to the risk that the occupier landowner could be left liable for a huge liability in certain circumstances. He would generally be personally liable as there would not usually be, in contrast to the case of a  business.

Occupiers Liability Act

The Irish courts had pushed out the principles of occupiers’ liability in areas such as supermarkets and businesses premises. Not unreasonably, farmers’ bodies and others lobbied for legislation to reduce the risk and liability that arose when persons were allowed to enter the land.

The Occupiers Liability Act distinguishes between users of who enter premises in the interests of the business concerned (e.g customers) and recreational users.

The legislation applies to “premises” which includes land, water and buildings.

The first category is owed the ordinary duty so that the risk of liability to them is higher. The second category of user’s recreational users is owed a  much lower duty of care.

A “recreational user” is an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on the occupier’s premises without a charge being imposed for the purpose of engaging in a recreational activity.

The occupiers of property owe, towards a recreational user, a duty not to injure them or damage their property intentionally, nor to act with reckless disregard for the person or the property of that recreational user.

Recreational Users Cases

The idea was to reduce the possible liability to recreational users insofar as possible.Recklessness is a  hard standard of which to prove a breach. It requires very high gross negligence or conscious disregard of a very serious risk.

The effect of the act can be seen in the case of Weir Rodgers v The S.F. Trusts Ltd.  The claimant used a road on private land that was not fenced. When she fell down a deceptively sheer cliff and suffered injuries. She recovered damages in the High Court, but the  Supreme Court overturned the award emphasising the legislation.

In Wall v National Parks and Wildlife Service [2017] IEHC 85, White J. reversed a judgment of Judge Linnane in the Circuit Court ([2016] IECC 1), which had held in favour of a hillwalker who had been injured on a defective boardwalk when hiking in the Wicklow Way. The plaintiff, an experienced hillwalker, went hill walking with her husband on the Wicklow Way. She was wearing appropriate clothes and boots and using a walking stick.

There was specific signage directing walkers to use a wooden boardwalk, where provided, in order to protect the mountain habitat in a special area of conservation. When she was on the boardwalk, her foot got caught in a depression or hole on the boardwalk, causing her to fall and injure her right knee.

The boardwalk was made up of second-hand wooden railway sleepers, which had been installed between 1997 and 2000. In some areas, a chicken wire was stapled or nailed onto the sleepers. The purpose of the sleepers was to protect the habitat from being eroded by walkers.

White J.

“This court does not accept that the duty imposed on an occupier by Section 4(4) of the Act is an absolute or strict duty. It has to be construed in its ordinary meaning, the duty of reasonable care to maintain a structure in a safe condition, has to be interpreted by applying the law of negligence, in particular the standard of care applicable.

The Court does not agree that a trip hazard is the same no matter what the location. It approves of the passages from the English and Scottish authorities recited, in respect of outdoor pursuits and it is also not the law as applied in the Irish courts. It also approves the passages of extracts from the judgments quoted on the social utility of the activity in dispute.

Because of the vigilance expected from hill walkers, walking on moderate mountain trails, and the application of the legal principle that the standard of care has to be adapted to the conditions, the social utility of the provision of the boardwalk, the isolated location of same, I do not hold that the defendant was negligent in not filling in the indentations or replacing the sleepers with new sleepers and will accordingly allow the appeal in full.”

Level of Duties

The Occupiers Liability Act applies to claims arising out of the state and the land condition as such.  It does not apply to dangerous activities such as felling trees or undertaking other activities which injure others on the land. The legislation does not deal with the duties owed to employees and persons in the means of transport.

The greatest duties are owed to visitors who are persons on land under a contract or at the invitation of the owner. These higher duties may also apply to a recreational user (in the everyday sense of the word)  who is invited by the occupier or a member of the occupier’s family or under a contract.

The ordinary common law duty of care is owed to a visitor. The occupier/owner must take all reasonable care in the circumstances to see ensure that they are not injured or suffer loss by reason of the state and condition of the property.

Recreational activity is an activity conducted, whether alone or with others in the open air (including sporting activity) scientific research and nature study so conducted by exploring caves and sites and buildings of historical, architectural, traditional, artistic, archaeological or scientific importance; It, therefore, includes any almost all activities.

A recreational user is an entrant who, with or without the occupiers/owner’s permission, is present on land) without a charge (other than a reasonable charge for vehicle parking facilities) for the purpose of engaging in a recreational activity

Standard of Duty Owed to Recreational Users

The act contains criteria for determining whether or not an occupier has acted with reckless disregard. Regard shall be had to all the circumstances of the case, including—

• whether the occupier knew or had reasonable grounds for believing that a danger existed on the premises;
• 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;
• 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;
• 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;
• 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;
• 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;
• 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;
• the nature of any warning given by the occupier or another person of the danger; and
• 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.

Animals

At common law, the owner of an animal is not liable for damage caused by the animal straying onto the highway. There was no duty of care to repair fences.

The Animals act 1985 abolished the common law rules that excluded or restricted the duty. A person owes a duty to take such care as is reasonable to see the damage is not caused by an animal straying onto the public road.

There is an exception for damages caused by an animal straying from unfenced land onto a public road. A person who placed the animal on the land shall not be regarded as breaching the duty if the land is situate in an area where fencing is not customary, and he had a right to place the animal on the land. Fencing includes any obstacle.

More prevalent in Ireland than pasturages are licences or agreements for arable or pastoral purposes. These are effectively licences similar to leases. They may be for part of the year, commonly 11 months.

Volunteers

So-called good Samaritan legislation was introduced in 2011. Voluntary work includes charitable and emergency work and work for the purpose of sport or recreation.

A volunteer person does voluntary work authorised by a volunteer organisation without payment other than expenses. A volunteer organisation is not for profit. The Legislation states that a volunteer shall not be personally liable in negligence for any act done when carrying out voluntary work.

The protection from personal liability shall not apply if the act was done by the volunteer in bad faith or without gross negligence or of the volunteer new or ought reasonably to have known that the act was outside the scope of the voluntary workers authorised by the volunteer organisation concerned contrary to the instructions of the volunteer organisation concerned.

An agreement is invalid to the extent that it provides for a volunteer to give a volunteer organisation an indemnity against in relation to liability the volunteer would otherwise incur for his negligence but for the above provision and the volunteer organisation occurs as a result of vicarious liability for that negligence.