The Courts and Civil Law (Miscellaneous Provisions) Act 2023 was signed into law by the President on 5 July 2023. The Act includes new provisions governing an occupiers’ duty of care under the Occupiers’ Liability Act 1995. The part of the Act relevant to occupiers' liability commenced on 31 July 2023.

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 a premises. The express intention of these changes is to reduce the volume of claims and lower insurance costs. Broadly speaking, these amendments update our duty of care legislation, aiming to strike a balance between ensuring that businesses, community groups and organisers of events fulfil their duty of care responsibilities, while acknowledging the importance of the personal responsibility of visitors, recreational users and trespassers.

A visitor is a person on the property with the actual or implied consent of the occupier. The highest duty is owed to visitors. A recreational user is a person who enters a property, with or without the occupier’s permission without charge to engage in recreational activity. A trespasser is a person who is neither a visitor or recreational user.

Duty of care owed to visitors

An occupier continues to owe a common duty of care to lawful visitors. The 1995 Act 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:

1. the probability of a danger existing on the premises;
2. 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;
3. the probable severity of an injury to a visitor that might result from a danger existing on the premises;
4. the practicability, and the cost, of precautions or preventative measures; and
5. where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in (2).

These factors provide clarity in respect of the approach the Courts should take when assessing the potential liability of an occupier who is facing a claim for breach of their duty of care under the legislation.

Duty of care owed to recreational users and trespassers

Where there is a danger on the premises, an occupier continues to owe recreational users and trespassers a duty not to intentionally injure them or damage their property and not to act with reckless disregard for their person or their property.

In considering whether an occupier has acted with reckless disregard, the 2023 Act has removed reference to whether an occupier “knew or had reasonable grounds 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 the reasonable grounds standard 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.

The legislation now also states that regard may be had to whether the entrant entered the premises as a trespasser.

Duty to those Entering a Premises to Commit an Offence

Previously, where a person entered a premises for the purpose of committing an offence or committed an offence while on the premises, the occupier was not liable unless a Court determined otherwise “in the interests of justice”. This reference has been removed and the legislation now provides that 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. Again, this raises the threshold for a finding of liability.

Voluntary assumption of risk 

Helpfully, the legislation now provides statutory recognition of the defence of voluntary assumption of risk. This is a key change and should reduce the risk of claims and litigation faced by business owners, community groups and organisers of events.

An occupier now does not owe any duty to a visitor or recreational user in respect of risks willingly accepted by them where they are capable of comprehending the nature and extent of those risks. A visitor or recreational user may accept the risk by their words or conduct. It is not necessary to evidence the communication or interaction with the occupier.

Looking to the future

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.

By Aislinn Collins Solicitor.

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

September 2023 Wolfe & Co. LLP Solicitors