Occupiers’ Liability Act 1995 Ammendments.

Welcoming the enactment of legislation reforming the law of occupiers’ liability.

Government ministers say it rebalances the duty of care owed by occupiers to visitors and recreational users.

The reforms amend the provisions on the duty of care and on the duty owed to recreational users and trespassers under the Occupiers’ Liability Act 1995.

Speaking about the new provisions, which are included in the Court and Civil Law (Miscellaneous Provisions) Act 2023, the Minister for Justice, Helen McEntee, and the Minister of State for Law Reform, James Browne, said the Act contains four key developments regarding occupiers’ liability:

“The occupier of a property had acted with reckless disregard for a visitor or a customer”

• Recent court decisions, which rebalance the duty of care, have been inserted into primary law.
• The standard of care has been clarified, so that it has to be shown the occupier of a property had acted with reckless disregard for a visitor or a customer – and that it is the standard of reckless disregard rather than reasonable grounds which should apply in relation to any consideration of liability.
• It limits the circumstances in which a court can impose liability on an occupier where a person has entered a premises for the purpose of committing an offence.
• It allows for a broader range of scenarios where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm.

The new provisions have been welcomed by Insurance Ireland and the Alliance for Insurance Reform.

The amendments are set out in Part 6 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023. When considering the amendments, it is useful to have regard to the definition of the common duty of care (see table below)

“The occupier of a property had acted with reckless disregard for a visitor or a customer ”

SECTION 3 OF THE OCCUPIERS’ LIABILITY ACT 1995: THE DUTY OF CARE

The section now requires courts, when determining the extent of the common duty of care of an occupier to a visitor and whether it has been complied with by the occupier, to have regard to all the circumstances and matters, including: The probability of a danger existing on the premises; The probability of an occurrence of an injury or damage suffered by a visitor existing on the premises; The probability of the severity of the injury from an existing danger on the premises; The practicality and cost of precautions or preventative measures; The social utility of the activity that gives rise to the risk of injury.

SECTION 4 OF THE OCCUPIERS’ LIABILITY ACT 1995: DUTY OWED TO
RECREATIONAL USERS OR TRESPASSERS

The section now provides that in determining if an occupier acted with reckless disregard, regards should be had to all the circumstances, including whether the occupier knew, or was reckless as to: Whether the danger existed on the premises; Whether the person was likely to be on the premises; Whether the person was in, or likely to be in, the vicinity of the place where the danger existed; Whether the person entered onto the premises as a trespasser.

SECTION 5 OF THE OCCUPIERS’ LIABILITY ACT 1995: VOLUNTARY ASSUMPTION
OF THE RISK

A new sub-section 5A provides the common duty of care under section 3 shall not impose an obligation on an occupier to a visitor in respect of risks willingly accepted by the visitor, where the visitor is capable of comprehending the risks. The section goes on to provide the occupier shall not owe a duty to a recreational user in respect of risks willingly accepted by the recreational user, where the use is capable of comprehending the risks. A determination of whether the recreational user willingly accepted the risk may be based on the conduct of the visitor without the requirement of communication with the occupier.