Michael McDowell (Dublin South East, Progressive Democrats)

If this is the case, it means that in an action for damages, a trespasser cannot rebut the fact that massive and excessive force was used against him or her, for example, if his or her legs were broken or he or she was beaten to a pulp, because he or she refused to leave someone's home.

Moreover, section 7 requires the court, in determining whether the actions were reasonable, to take into account the particular circumstances described in the section but the section fails to make any reference to section 4, which I believe is a mistake. The distinctive feature of the Occupiers' Liability Act of 1995, which is the principal legislation in this area, is that it reduced the extent of the occupier's obligations to trespassers. That Act broadly followed the recommendations contained in a report published by the Law Reform Commission in 1994. This report was preceded by a consultation paper published in 1993.

The 1995 Act provides that an occupier owes a duty not to injure a trespasser intentionally and not to act with reckless disregard. However, section 4(3)(a) states that where a person enters onto a premises for the purpose of committing an offence or, while present thereon, commits an offence, the occupier is not liable for a breach of the duty imposed generally on trespassers unless a court determines otherwise in the interests of justice. An overall saver in section 8(a) is the occupier's entitlement to use proportionate force for his or her self-defence, the defence of others or the defence of the property.

Undoubtedly, the 1995 Act cured some serious shortcomings in the law created by the Supreme Court judgment in the McNamara v. ESB in 1975. The facts of this case are fairly well known. The plaintiff, who was a young boy, climbed over a wire fence which surrounded a transformer station and was injured when he came in contact with a high tension cable. The High Court ruled that the plaintiff had not been guilty of contributory negligence in awarding damages in his favour. However, on hearing an appeal against the judgment, the Supreme Court held that the plaintiff was guilty of contributory negligence. The effect of this judgment, nevertheless, set out that the duty owed to trespassers was the duty to take reasonable care.

The 1995 Act helped to restore the pre-McNamara v. ESB common law standard that the duty owed to trespassers is not to injure them intentionally and not to act with reckless disregard to their person or property. The occupier is not required to discharge the same standard of reasonable care which visitors can insist on by virtue of section 3 of the Act. In determining whether an occupier has acted with reckless disregard for a trespasser on his or her property, a court must have regard to all the circumstances of the case, including nine factors specified in section 4(2) of the 1995 Act. These include the conduct of the person and the nature of any warning given by the occupier. It is also important to bear in mind that section 57(1) of the Civil Liability Act 1961 provides that it shall not be a defence in an action of tort to show that the plaintiff is in breach of the civil or criminal law.

Some commentators believe that the 1995 Act was quite radical in the changes it brought about in overhauling the law on occupiers' liability. The passage of time since then indicates that at the time, there was a need for a response from the Oireachtas in this important area of the law.

In so far as trespassers in general on property are concerned, the Bill now does two things on the civil side. It assumes reasonableness in difficult circumstances on the part of the occupier and places the onus of disproving that presumption on the trespasser. In attempting this, there are drafting difficulties with the Bill and questions to be answered about the extent to which section 4 gives occupiers exemption from all civil liability. These matters will require careful examination by me in consultation with the Attorney General.

Section 3 of Deputy Jim O'Keeffe's Bill creates a rebuttable presumption that defensive force used by an occupier of a dwelling in respect of a trespasser who has unlawfully gained entry to and remains within the dwelling is reasonable force. In section 2, an occupier is defined as any person who could reasonably be considered to be resident in the dwelling or any person present in the dwelling with the consent and approval of an occupier. If a person gate-crashed a party held in a house, all the guests would be exempt from civil liability, irrespective of the force they used to throw the gate-crasher out. If they beat him or her black and blue and left him or her hospitalised, Deputy Jim O'Keeffe has told us that his Bill intends to leave that person with no protection whatsoever. That person would have gained entry as a trespasser and the guests who set upon him or her would be considered occupiers for the Deputy's purposes. Deputy Jim O'Keeffe is saying that if the person's bones were broken and he or she was beaten to a pulp, no civil liability should attach to any of the guests in those circumstances. That is a very far-reaching proposition——

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