Occupiers' Liability from the Common Law

1704 WordsJul 13, 20187 Pages
The first point to note when analysing occupiers’ liability is that originally it was separate to the general principles of negligence which were outlined in Donoghue v Stevenson .The reason for this “pigeon hole approach” was that the key decision of occupiers’ liability, Indermaur v Dames was decided sixty six years prior to the landmark decision of Donoghue v Stevenson . McMahon and Binchy state the reason why it was not engulfed into general negligence, was because it “… had become too firmly entrenched by 1932 … to be swamped by another judicial cross-current” Following on from Indermaur v Dames the courts developed four distinct categories of entrant which I will now examine in turn. The first category of entrant is that of a…show more content…
This was evident in the case of Rooney v Connolly where liability was imposed on a priest when a girl that he had encouraged to visit the local church injured herself stretching over lighted candles. The permission to enter the land as a licensee may be expressed or implied. An issue arises when the permission is implied. Often children entered premises without the permission of the landowner without the objection of the landlord. But did this make them a licensee or a trespasser? Fitzgibbon J put it eloquently in Kenny v ESB “An open gate or an unfenced field does not amount to an invitation or licence urbi et orbi to enter upon private property” Often the courts would have to interpret particularly in cases involving minors whether tolerance could be implied as amounting to permission to enter the land. The courts would often analyse the tolerance issue in deciding cases as best to deliver justice in cases where there was no clear outcome. The fourth category is that of a trespasser. This category has radically developed in the last thirty years. Originally a trespasser was owed a very limited duty of care. The duty owed to a trespasser was that they could not be injured “intentionally and not to act with reckless disregard to their person or property”. The idea behind such a narrow duty was that a trespasser was illegal on the property and that the occupier should owe little
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