Sir, I refer to letters in The Irish Times, in mid August, under the heading "Wicklow hill walks." One, by David Herman, referred to ICMSA approved notices and goes on to state "The purpose of the Act was to take the onus of responsibility from occupiers from accidents to trespassers on their land".
The Act referred to is the Occupier's Liability Act (1995), and the statement quoted is not correct. The Act states clearly. "An occupier of premises owes a duty of care (the common duty of care,) towards a visitor [Section 3(1)]
It goes on to describe in detail the precise nature of "the common duty of care" which the occupier owes to visitors [Section 3(2)].
In Section 4(1) the Act also describes in detail the nature of the duty an occupier owes towards a recreational user and a trespasser. The definitions of "visitor" and "recreational user" are given under Section 1, where a trespasser is defined as "an entrant other than a recreational user or a visitor.
The Act regards persons engaging in recreational activity, who are present at the expressed invitation of the occupier, or with the permission of the occupier, as visitors. It thereby obliges the occupier to assume the responsibility of having the highest duty of care towards such entrants.
During the various stages of drafting the relevant Bill, ICMSA representatives had numerous discussions with officials in the Department of Justice, all of whom were very helpful, and with the Law Reform Commission. Our submissions sought the removal from occupiers of care responsibilities towards entrants. The legislation enacted does not provide for this (as it does in some European countries).
The Act describes how occupiers may reduce their duty of care towards visitors. One such way is the prominent display of a notice at the normal means of access to the premises" [Section 5(1)]. In accordance with that section of the Act, ICMSA provided notices for the express purpose of reducing the responsibilities attaching to farmers. There is ample evidence of the growing practice of claiming from property owners and occupiers for damages arising from accidents.
The necessity for notices would not exist if the legislation placed total responsibility for their own care and safety on the entrants to property. It is accepted, however, that despite the inadequacy of the present legislation, it is far better than the common law rules which proceeded it. Yours, etc.,
General secretary, Irish Creamery Milk Suppliers, Organisation, John Feely House, Upper Mallow Street, Limerick.