Legal Updates

 Litigation and Dispute ResolutionJuly 26, 2023

Changes to the Duty of Care owed by Occupiers

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The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (‘2023 Act’) was signed into law by the President on 5 July 2023. It contains amendments to the Occupiers’ Liability Act 1995 (‘1995 Act’), which modifies the duty of care owed by occupiers in respect of dangers existing on their premises.

The new measures have been described by the government as striking a reasonable balance between the responsibilities of the owner and/or operator of a premises and what individuals themselves must do when entering the premises. The express intention of these changes is to reduce the volume of claims and lower insurance costs.

In this article, we look at some of the key changes introduced by the new legislation.

Duty to Visitors

Section 3 of the 1995 Act already provided that an occupier must take such care as is reasonable in the circumstances to ensure a visitor to the premises does not suffer an injury or damage. However, in determining this general duty of care, it is now required that regard be given to the following factors:

  • the probability of a danger existing on the premises;
  • the probability of the occurrence of an injury to, or of damage suffered by, a visitor by reason of a danger existing on the premises;
  • the probable severity of an injury to a visitor that might result from a danger existing on the premises;
  • the practicability, and the cost, of precautions or preventative measures; and
  • where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in (b);

These changes are useful in that they require consideration be given to the probability of risks and the occurrence of an injury when determining the general duty of care of an occupier.

Duty to Recreational Users or Trespassers

Section 4 of the 1995 Act requires that an occupier does not act with reckless disregard towards a recreational user or trespasser of the premises. In considering whether an occupier has acted with reckless disregard, the 2023 Act has removed reference to whether an occupier “knew or had reasonable groundings for believing that” a danger existed on the premises or whether the person was likely to be on the premises or in the vicinity of the danger. The standard is now whether the occupier “knew of, or was reckless” in this regard.

The purpose of these changes is to clarify that when the occupier of a property has acted with reckless disregard, it is the higher standard of reckless disregard rather than reasonable grounds which should apply in relation to any consideration of liability.

In addition, it is no longer relevant whether the danger was one against which the occupier might reasonably be expected to provide protection for the person and their property.

Duty to those Entering a Premises to Commit an Offence

The law had previously stated that where a person enters onto a premises and commits an offence, the occupier would not be liable for a breach of the common duty of care, unless the court determined otherwise “in the interests of justice”. However, the discretion of the court to consider “the interests of justice” has now been removed and instead, the occupier shall not be liable unless in “exceptional circumstances”, having regard to matters such as the nature of the offence, the extent of the recklessness on the part of the occupier or the fact the person was not a trespasser.

The purpose of this change is to limit the circumstances in which a court can impose liability on an occupier where a person has entered onto premises to commit an offence.

Voluntary Assumption of Risk

The changes to the 1995 Act allow for a broader range of scenarios where it can be shown that a visitor or recreational user to a premises has voluntarily assumed a risk resulting in harm.

An occupier will not have obligations pursuant to section 3 and section 4(4) of the 1995 Act to a visitor or recreational user in respect of risks willingly accepted by them, provided they are capable of comprehending the nature and extent of those risks.

A visitor or recreational user can be said to have willingly accepted a risk based on their words or conduct without a requirement for evidence of communication or interaction with the occupier. As such, a written agreement is not necessary to limit or release an occupier from liability.

What Lies Ahead

The government has indicated that it sees the introduction of this legislation as leading to reduced insurance premiums, the start of a cultural change surrounding the claims environment and also, Ireland being a more attractive market for new insurance entrants.

These reforms are significant and put recent decisions of the High Court, which dealt with the balance between the obligations of occupiers and the rights of visitors and recreational users, on a statutory footing. It represents a shift toward limiting the scope of claims that can be made against occupiers.

The relevant provisions are now in force, having come into effect on 31 July 2023.

DISCLAIMER: This document is for information purposes only and does not purport to represent legal advice. If you have any queries or would like further information relating to any of the above matters, please refer to the contacts above or your usual contact in Dillon Eustace.

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