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What are we to make of this analysis? The most obvious point to note is that Geoghegan J makes it abundantly plain that he is not coming to any final conclusion on the issue. He canvasses three possible interpretations of recklessness under s 4. The first is gross negligence but he seems to believe that, because the Oireachtas used the term “recklessness” after the Law Reform Commission had recommended a gross negligence test, the concept of recklessness cannot mean gross negligence. Such a conclusion does not necessarily follow. In choosing not to define “recklessness” but prescribing a detailed series of factors to which the court is to have regard when determining whether the defendant was reckless, the Oireachtas may well have sought to achieve this equiparation. The content of these several factors involves an objective test whereby the reasonableness of the defendant’s conduct is to be assessed; the only matter left unstated is just what level of reasonableness is envisaged. (It should be mentioned that the Oireachtas debates provide surprisingly little guidance on the exact meaning of “recklessness”.)

The second possible interpretation canvassed by Geoghegan J is some objective standard even less demanding (from the occupier’s point of view) than gross negligence. This would involve a novel test in Irish law. Some American jurisdictions have a “wantonness” criterion. Perhaps this is the level that Geoghegan J is envisaging.

The third possible interpretation mentioned-but not developed-by Geoghegan J is to interpret recklessness in subjective rather than objective character. This would require the defendant actually to have addressed the danger: if the defendant did not, then, however negligent he or she might have been, and however obvious the danger, he or she would not be held liable. There is an obvious difficulty with this interpretation. The factors listed in s 4(2) clearly are objective rather than subjective in character. The reference to the question whether the occupier “knew or had reasonable grounds for believing” certain facts is a constant refrain in factors (a) to (c). Factor (d) requires the court to make a value judgment: whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection for the person or property of the entrant. Factors (e) to (i), in referring to empirical matters, clearly place a burden on the court to respond normatively to them when making its objective value judgment. There could just be a tenuous argument that factors (a) to (c), in referring to whether the occupier had reasonable grounds for believing certain facts, was doing no more than what s 2(2) of the Criminal Law (Rape) Act 1981 does-namely, refer to an objective reasonable test merely as a guide to determining a factual question of what the defendant actually believed. This interpretation cannot prevail in the face of factor (d), which simply does not involve any transposition from the normative to the empirical order and factors (e) to (i), which require the court to journey in precisely the opposite direction.

When one turns to seek guidance from the prelegislation case law as to the meaning of recklessness on the part of an occupier, one encounters difficulty.

The concept of recklessness was developed against a very restrictive background in which no duty of care was owed to trespassers. The progress of judicial thinking on the subject was first to acknowledge that an occupier might not intentionally injure a trespasser (subject, of course, to the defences of self-defence, defence of others, and defence of property), and only later to countenance the idea that liability should extend further to embrace egregious conduct lacking the intent to injure the trespasser. The language used by the judges varied fairly widely and lacked analytic sophistication. Most courts required that there have been some positive conduct on the part of the occupier: mere culpable inaction resulting in the maintenance of premises in a dangerous state was not enough to warrant the imposition of liability. The courts also, understandably, required that the culpable act take place at a time when the occupier was actually aware of the trespasser’s presence on the property or there was a very strong likelihood that the trespasser would be there.

A flavour of the judicial approach may be obtained from the following quotations. In the Privy Council case of Grand Trunk Railway of Canada v Barnett,1 Lord Robson referred to “a wilful or reckless disregard of ordinary humanity rather than mere absence of reasonable care”. In Coffee v McEvoy,2 Holmes LJ referred to damage being caused to a trespasser “by wilful or reckless act”. In the House of Lords decision of Addie v Dumbreck Collieries Ltd,3 Lord Dunedin referred to a situation where “the acting was so reckless as to amount to malicious acting”. In a number of decisions prior to Purtill v Athlone UDC4 and McNamara v ESB,5 the Irish courts displayed a lack of concern as to whether a test of recklessness or negligence should be applied towards trespassers where some positive act was occurring on premises or involving machinery. These earlier decisions may perhaps be regarded as not being helpful on the question of the actual meaning of the concept of recklessness, though they are important in guiding analysis on the separate question as to whether the 1995 Act has overtaken the common law in respect of activities as opposed to the state of the premises. It will be recalled that Purtill and McNamara involved a movement away from the traditional constriction of the occupier’s duty to trespassers so as to allow for the imposition of a duty of care in negligence on occupiers relative to trespassers were there was a sufficient proximity of relationship between them. In the absence of such proximity, no duty of care was imposed: see Keane v ESB,6 O’Keeffe v Irish Motor Inns Ltd,7 and Smith v CIE.8

This brings us to a real confusion in the drafting of the legislation. Section 4(1) is dealing with the duty an occupier owes recreational users and trespassers “[i]n respect of a danger existing on premises”. Section 1(1) defines “danger” in relation to any premises as meaning a danger due to the state of the premises. Such a danger, one might reasonably infer, should be contrasted with a danger due to some activity taking place on the premises. Yet s 4(1) requires the occupier not to injure the entrant intentionally or to act with reckless disregard for the entrant. Of course it is possible that with respect to dangers due to the state of the premises-an unsafe ceiling, for example-the occupier by his or her act in reckless disregard of the entrant could bring about injury to the entrant-by banging a pole against the ceiling. But there will be other cases where an occupier can injure an entrant by reckless conduct without there being any danger due to the state of the premises-as, for example, where an occupier chooses to spray the land with poison. There will also be cases where an occupier, with serious moral culpability, does nothing to protect an entrant from a danger that is exclusively due to the state of the premises. Can it be that the only case in which s 4(2) imposes liability is where the occupier, with respect to a pre-existing danger due to the state of the premises, recklessly engages in positive activity that causes injury to the entrant? This is what the language of ss 1(1) and 4(1), in cumulation, appears to provide. Such a conclusion is an unpalatable one, for a number of reasons. First, it would constitute a huge reduction in the scope of the occupier’s duty to trespassers to a point less extensive than the common law courts, long before Purtill or McNamara, countenanced. Once the courts acknowledged that reckless disregard of a trespasser involved liability on the part of the occupier, they did not relieve the occupier of liability merely because such reckless disregard did not relate to a danger due to the state of the premises. No moral distinction could be drawn on this basis and the courts rightly made no attempt to draw such a legal distinction. Second, the Oireachtas debates on the legislation involve no suggestion that such a distinction was intended.

Section 2(1) is relevant to the solution of this puzzle. It provides that, subject to s 8 (which preserves certain rules relating to liability (such as employers’ liability) and defences (such as self-defence)), the duties, liabilities, and rights provided for by the Act are to have effect in place of those which previously attached by the common law to occupiers of premises “as such in respect of dangers existing on their premises to entrants thereon”. It may be argued that this provision makes it clear that the legislation is not seeking to alter common law duties so far as they do not relate to occupiers’ conduct in other contexts. Thus it seems clear enough that an occupier who is negligent towards a visitor in contexts other than those relating to dangers due to the state of the premises may still be sued for negligence at common law. In Hackett v Calla Associates Ltd,9 where the plaintiff was assaulted by a member of security staff engaged by the occupier of premises, Peart J referred to the restricted definition of “danger” in s 1(1) as meaning a danger due to the state of the premises and commented:

“It must follow from this that the plaintiff’s claim is not one coming within the duty of care imposed by section 3 as the allegations of negligence are not related in any way to the state of the premises but rather the behaviour of the bouncers on the night in question. It is necessary to consider this claim by reference to the more unusual non-statutory criteria in relation to the possible breach of the common law duty of care owed to the plaintiff by the owners/occupier of the premises …”.

Peart J did not refer to s 2 but his acceptance that the common law claim for negligence survived the legislation is to be noted. His approach contrasts with that of Herbert J in Meagher v Shamrock Public Houses Ltd t/a the Ambassador Hotel,10 but it would seem mistaken to build too much theoretical analysis on the brief reference in Meagher to s 3(2) of the 1995 Act.

It is striking that in England, where the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984 both replaced the rules of common law, not only in respect of dangers due to the state of the premises but also in respect of dangers due to “things done or omitted to be done” on the premises, some courts and commentators argued that these Acts did not affect the “activity duty”: see.11 If a credible case can be made that the “activity duty” remains even where legislation refers to things done or omitted to be done on premises, the case is far stronger where, as is the position under the Irish legislation of 1995, the statute professes to affect only the rules relating to dangers due to the state of the premises.

The issue is of little practical importance in relation to the occupiers’ duty to visitors since, on the assumption that s 2(1) has the effect of preserving the common law position, outside the context of dangers resulting from the state of the premises, since the occupier’s duty to the visitor will in any event be one of due care, whether categorised as the statutory “common law duty of care” or the duty of care under common law negligence principles. With regard to recreational users and trespassers, however, the issue assumes supreme significance. If s 2(1) preserves the pre-existing common law rules relating to occupiers’ positive acts (save perhaps those acts relating to dangers due to the state of the premises), then the law as stated in Purtill and McNamara would continue to apply so far as such acts are concerned. It is true that the facts of both these cases might be categorised as involving dangers due to the state of the premises, but the legal principles expressed in them clearly extended to cases involving activities by the occupier. Let us now try to bring these strands of analysis together. Section 2 of the 1995 Act makes it clear that the Act changes only the rules relating to the occupiers’ duty to entrants relative to dangers resulting from the state of the premises. Section 4(1) requires the occupier, relative to trespassers and recreational users only to avoid injuring them intentionally or acting with reckless disregard for them. The reference to “act” in s 4(1) is highly problematic. It appears to relate to acts in respect of dangers to the state of the premises. If this is so, what about other acts? If Purtill and McNamara still apply for them, the Act will have had a radically different effect than what the farmers’ lobby believed it had achieved. Moreover, difficult questions of characterisation will arise. Take the facts of Smith v CIE, where the plaintiff, having got onto the Dublin- Cork railway line near Ballyfermot through a breach in the wall was struck by a train as he was running down the track with the intention of chasing a boy who had ridden his horse without his consent. The Supreme Court held that there was no proximity of relationship between the parties, but was the defendants’ alleged culpability its failure to repair the [wall] which exposed the plaintiff to damages resulting from its activities or, on the other hand, its operation of a fast train in circumstances where the presence of the trespasser was foreseeable?

It is hard, nevertheless, to see how s 4(1) can reach acts unconnected with dangers due to the state of the premises. This raise the question as to what rules apply to omissions by an occupier relating to dangers due to the state of the premises. The use of the word “act” in s 4(1) might reasonably indicate that omissions – even reckless ones are not to generate liability. But that would involve such a retrogression that, unless the language of s 4(1) absolutely compels such a conclusion, it should be resisted by the courts. It would mean that occupiers would have no liability, however egregious their recklessness, for their culpable inaction relative to dangers due to the state of their premises. If an occupier let a ceiling, known to him to be highly unstable, fall on the heads of recreational users visiting a building of artistic importance, he would incur no liability. This is simply unacceptable; indeed it would raise a serious doubt as to the constitutional validity of the legislation in its failure to protect the rights to life and bodily integrity of such entrants. The courts would seem well entitled to interpret “act” broadly so as to include omissions. Any other course is likely to result in unconstitutionally draconian and anomalous outcomes.

If, therefore, s 4(1) is interpreted broadly, the question of what constitutes “recklessness” can be more easily addressed. It is respectfully suggested that, for the reasons stated above, it involves an objective rather than subjective test. As to the stringency of that objective test, s 4 is silent. It has to be acknowledged that all of the factors specifically set out (as a nonexhaustive list) in s 4 (2) are ones that a court would address when determining whether the occupier was guilty of negligence relative to the recreational user or trespasser? Could it possibly be the case that, again contrary to the understanding of the farming lobby, “recklessness” is really the same as negligence? In spite of the use of the expressions “reasonable” or “reasonably” in six of these nine factors, it may strongly be argued that “recklessness” must mean some degree of carelessness worse than negligence. It is used in contradiction to the “common duty of care” which applies in respect of visitors; the Minister, in the Oireachtas Debates, represented the recklessness test as one less demanding than that of negligence; moreover, the term itself suggests conduct more egregious than negligence. Assuming that “recklessness” involves conduct worse than mere negligence, how much worse is it? “Gross negligence” has a long common law pedigree as a term indicating seriously substandard conduct, in a range of contexts. Of course, there is no scientific way of calibrating gross negligence (or indeed negligence itself). The term is in the realm of values, derived from, but not reducible to facts. A court charged with the obligation of imposing liability only in cases of gross negligence will naturally hesitate longer before imposing liability than it would if negligence had been the test. If the use of the word “reckless” instils the same judicial hesitation, it will have achieved its goal. The court does not formally have to interpret s 4 as incorporating a “gross negligence” test, provided it does not go further than what gross negligence involves. If it were to interpret s 4 as actually involving conduct more egregious than gross negligence, it may be suggested that it would be going too far, for two principal reasons. First, nothing in the language of the Act itself requires such an interpretation. Indeed, the frequent use of the words “reasonable” or “reasonably” in s 4(2) contrasts strongly with it. Second, a grosser than gross negligence test would afford such scant protection to recreational users again to raise constitutional concerns. Would it be consonant with justice for an occupier whose grossly negligent act results in the collapse of a ceiling of a building of artistic importance to avoid any liability towards entrants permitted by him to be in the building without charge? Catering to lobbies must surely have some limits.

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Volume 1 | Issue 1 | Winter 2005/6 IBLQ

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Sample article taken from the Irish Business Law Quarterly, “Employment Law Update”, by Stephen O’Sullivan, Barrister at law.

Industrial Relations: The Consultation Directive

Directive 2002/14 (otherwise known as the “Consultation Directive”) has been in force in Ireland since 23 March 2005 though legislation has not yet been enacted to transpose it.

The Directive sets out the minimum requirements for employees to be informed and consulted by their employer regarding developments in their business. Currently the Directive applies in Ireland to undertakings with at least 150 employees or establishments with at least 100 employees. From 2008 onwards, the Directive will apply to undertakings of at least 50 employees or establishments of at least 20 employees.

Article 4 of the Directive provides inter alia:

“2. Information and consultation shall cover:

(a) information on the recent and probable development of the undertaking’s or the establishment’s activities and economic situation;

(b) information and consultation on the situation, structure and probable development of employment within the undertaking or establishment and on any anticipatory measures envisaged, in particular where there is a threat to employment;

(c) information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations, including those covered by the Community provisions referred to in Article 9(1). [Note-this relates to provisions on collective redundancy, transfer of undertakings and European Works Councils]

3. Information shall be given at such time, in such fashion and with such content as are appropriate to enable, in particular, employees’ representatives to conduct an adequate study and, where necessary, prepare for consultation.

4. Consultation shall take place:

(a) while ensuring that the timing, method and content thereof are appropriate;

(b) at the relevant level of management and representation, depending on the subject under discussion;

(c) on the basis of information supplied by the employer in accordance with Article 2(f) and of the opinion which the employees’ representatives are entitled to formulate;

(d) in such a way as to enable employees’ representatives to meet the employer and obtain a response, and the reasons for that response, to any opinion they might formulate;

(e) with a view to reaching an agreement on decisions within the scope of the employer’s powers referred to in paragraph 2c.”

The Minister for Labour Affairs published the Employees Provision of Information and Consultation) Bill 2005 at the end of July 2005. This is the first draft of legislation to implement the general provisions of the Directive listed above. In s 7 of the Bill, the onus is placed on employees to trigger a request that an employer sets up an information and consultation procedure.Once ten per cent of employees subject to a minimum of 15 and a maximum of 100) make such a request, an employer must enter into negotiations to agree an appropriate procedure with employees. The parties have six months to conclude a negotiated agreement, after which the “standard fall-back rules” apply if no agreement is reached. The standard rules in the Bill prescribe the procedures to be followed in setting up an “information and consultation forum”. This forum must comprise elected employee representatives.Industrial Relations Act 2001-2004 Ryanair v Labour Court, unreported, High Court, Hanna J, 14th October 2005Prior to 2001 trade disputes were investigated by the Rights Commissioner or the Labour Court. The term “trade dispute” was given a wide interpretation and encompassed almost any grievance an employee or a group of employees had in relation to the employment. The only problem with bringing such a claim was that it was not enforceable.

This problem was remedied by the Industrial Relations Act 2001 where it is now possible to bring a trade dispute before the Labour Court, provided certain conditions are met, which can result in an enforceable order. The most important condition is that “it is not the practise of the employer to engage in collective bargaining”.

Under the legislation, for instance, a group of employees could bring an action that their pay is not in line with the pay of comparable employees who work for an employer who engages in collective bargaining (who negotiates with unions). In cases CD 04/364, CD 04/362, CD 04/414, the Labour Court made orders in favour of employees under the Acts 2001-2004 to provide for better pay. This line of authority has posed a serious threat to companies that do not engage in collective bargaining.

The position in Irish law has long been that while an employee has a constitutional right to join a union he does not have a constitutional right to have that or any union recognised.

In Ryanair v Labour Court, IMPACT, a trade union acting on behalf of pilots, wrote to the chief executive of the respondent seeking written particulars of the contract of employment for pilots, details of the principles to be applied in the event of redundancy affecting pilots, and arrangements for pilot movement to other aircraft. Much of the dispute surrounded the decision of the applicant to change its fleet of aircraft, which would require many of its pilots to undergo additional training at their own cost if they did not remain with the company for five years. The applicant refused to deal with the union in respect of the matters raised. As a result of that refusal, IMPACT referred the dispute to the Labour Court under the Industrial Relations Amendment Act 2001.

As a preliminary issue, the applicant argued before the Labour Court that the Court did not have jurisdiction to hear the dispute in particular that the conditions in s 2 of the Act of 2001 were not met. The Labour Court held, in a decision reported at Irish Municipal, Public and Civil Trade Union/Irish Airlines Pilots Association v Ryanair [2005] 16 ELR that it had jurisdiction to investigate the dispute.

The applicant sought to judicially review this decision. The applicant argued, inter alia:

(1) that the applicant ran employment relations committees (ERCs). Therefore it was the employer to engage in collective bargaining. Therefore the respondent was incorrect in finding the precondition in section 2.1.a was met;

(2)The respondent had not used fair procedures. In particular it did not require the individual pilots to appear before the Labour Court and give oral evidence. It relied on documentary evidence presented by IMPACT which was not formally proven.

The High Court refused the application. In relation to (1) above, the court stated that the ERC forum did not constitute collective bargaining since such a body did not carry a trade union negotiation the employees had indicated a preference to negotiate through a trade union with such a licence-that union being IMPACT.

In relation to (2) above the court stated:

“In my view, the Labour Court is entitled to manage its own affairs and to conduct proceedings before it as it sees fit provided it so conducts itself within the limits of the statutory provision for which it derives its authority …” and “[N]ot only was the applicant the author of the essential documentation relied upon by the respondent in coming to its conclusion but, furthermore, it was fully aware that such documents were before the respondent and the applicant had every opportunity of addressing the Labour Court on them.”

Stress at Work Maher v Jabil Global Services Ltd, unreported, Clarke J, 12 May 2005

The principles for stress at work cases were laid out in UK law in Sutherland v Hatton [2002] 2 All ER 1. These were adopted by the Irish High Court in McGrath v Trintech Technologies Limited [2005] 16 ELR 49.

The principles have been applied again in Maher v Jabil Global Services Limited (unreported, Clarke J, 12 May 2005) the plaintiff claimed damages for stress. He claimed two matters caused the stress. First, that he took up a position of shift manager and after two months in employment, he had to take sick leave for approximately two months. He argued he was subjected to unreasonable pressure during this period. Second, that on his return he was moved to a different role. Three months later he went out on sick leave. He then resigned from the post seven months into this period of sick leave. He argued that this was effectively a “non-job” which exposed him to humiliation amongst his fellow workers to whom it would be obvious, in his case, that he had been, in effect, demoted.

The Court refused to award damages on either ground despite being satisfied that he had suffered personal injury, which had been caused by his work environment. This was after a trial of some seven days before the High Court. Effectively the Court applied the principles to find that it was not reasonably foreseeable that the employer’s action would cause the damage complained of.

The test the court applied was as follows:

(a) Has the plaintiff suffered an injury to his or her health as opposed to what might be described as ordinary occupational stress?

(b) If so is that injury attributable to the workplace; and

(c) If so was the harm suffered to the particular employee concerned reasonably foreseeable in all the circumstances.

The court concluded that the on the test identified and having regard to the facts of that case, the “objective threshold” for foreseeable harm caused was not met. The court could not identify evidence that the plaintiff’s workload was unusual or that the employer should have know that the plaintiff would find it so. In so finding the court had regard to the demands made on other employees in comparable jobs and such evidence as suggested that those employees did not find it unduly stressful. The court specifically had regard to the level of sickness and absenteeism in this regard.

The court concluded on the facts that there was not any concerted plan on the part of the employer to seek to exclude the plaintiff from his employment. Although he made complaints these were not as frequent as originally suggested by the plaintiff. The court took into account Item 11 of the practical propositions set out in Hatton which indicates that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty. In doing so, the court indicated that this proposition is subject to a caveat that if the court was satisfied that notwithstanding the provision of such a service the truth was that an employer was intent on removing an employee the availability of such a service might be regarded as being more a matter of form than substance (“going through the motions”).

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