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“I am a landowner and feel that I am becoming over-run with people freely roaming through our land. I heard of recent changes to the law. Am I still liable if someone gets hurt while walking on our farm?”
Generally, farmers are happy to facilitate members of the public going for a walk. Under Irish law, in the absence of a right of way, access is at the discretion of the landowner and he or she may deny access or withdraw consent without prior notice. If someone is not taking due care or causing interference while on your property, you should ask them to leave. If they refuse to do so, you should call the Gardaí.
Under Irish law, occupiers of land have a duty of care to those entering their property, including trespassers. The Occupiers Liability Act 1995 contains specific provisions designed to facilitate the use of land for recreational activity and the duty owed depends on the category of persons who come onto the property, i.e. visitors, recreational users or trespassers.
Under the act, a recreational user is a person present on the premises or land of a person without charge (other than a reasonable charge for parking facilities) for the purposes of engaging in a recreational activity. In this situation, the owner of the land is obliged to not intentionally injure or harm the recreational user or act with reckless disregard for the recreational user’s welfare.
Essentially, this means that if a landowner is deemed to fail to prevent danger when they were aware of it and a walker is subsequently injured, then the landowner can potentially be liable for that injury.
In relation to visitors, the duty is to take such care as is reasonable in the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. It is for this reason you often see signs at entrances to farms such as the picture featured, limiting the occupiers’ liability to visitors under the act.
Recent changes to the law
The changes to the law come as a result of some recent court decisions rebalancing the duty of care owed by occupiers to visitors and recreational users. These include:
1. The Court of Appeal decision in Byrne v Ardenheath Company Limited [2017], where the claimant fell and sustained injuries whilst walking down a grassy bank from the defendants’ car park to an adjacent footpath. The court held that when considering whether an occupier has complied with their duty of care towards a visitor, regard should be given to the care a visitor may reasonably be expected to have for their own safety in all the circumstances, the probability of an accident occurring, the severity of the injury that might result, and the cost for the occupier of eliminating the risk. The court also set out that occupiers are entitled to assume that an adult can look after their welfare.
2. The High Court decision in Mulcahy v Cork County Council [2020], where the claimant, a minor, suffered an injury after jumping between boulders. The court held that the social cost of removing all features from a public area, as well as the burden on occupiers, should be taken into consideration. Mr Justice White reiterated in this decision that the duty of landowners was not to remove all dangers.
3. The High Court decision in Wall v National Parks and Wildlife Service [2017], where the claimant sustained injuries after tripping on a boardwalk while hiking. The court allowed the appeal of the defendant, noting the legal principle that the standard of care has to be adapted to the conditions and emphasising the social utility of the provision of the boardwalk by the defendant. The court also found that there was a high degree of negligence on the claimant’s part, in that she was not looking at the surface of the boardwalk when she fell, noting the impracticality of requiring occupiers of open terrain to avoid all risks associated with recreational activity.
Anticipated to reduce claims
Under the old law, an occupier need only have had reasonable knowledge of a hazard to be considered to have acted with reckless disregard for a visitor or recreational user. An occupier will now only be considered to have acted with reckless disregard if they act recklessly in relation to a hazard.
The circumstances in which a court can impose liability on the occupier for injury suffered by a person who entered on to a premises to commit an offence will be more limited. A broader range of scenarios where it can be shown that a visitor or recreational user has voluntarily assumed a risk resulting in harm is also provided for. Under the old law, there must be a written agreement in place for an occupier to be relieved of liability. The new measures mean an occupier may be relieved of liability without such a contract once they demonstrate they have not been reckless and the risks have been willingly accepted.
The Minister for Justice, Helen McEntee, has commented that these new measures are designed to strike a reasonable balance between the responsibilities of the owner and/or operator of a premises to keep their customers and visitors safe and what the individuals themselves must do when entering a business, club or community building. It is anticipated that it will reduce the number of claims under the Occupiers Liability Act and thereby help in reducing insurance costs.
Disclaimer: The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information contained in this article, Aisling Meehan, Agricultural Solicitors does not accept responsibility for errors or omissions howsoever arising. E-mail aisling@agrisolicitors.ie
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