The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (2023 Act) was signed into law on 5 July 2023.
The 2023 Act contains new provisions which govern occupiers' duty of care under the Occupiers' Liability Act 1995 (1995 Act). The sections relevant to occupiers' liability came into effect on 31 July 2023.
The Irish Minister for State with responsibility for Financial Services, Credit Unions and Insurance, Dr. Jennifer Carroll MacNeill, stated that the 2023 Act has the aim of re-balancing the duty of care owed by occupiers to entrants (visitors, recreational users, and trespassers) and bringing Ireland's claims environment and personal responsibility culture more in line with other EU Member States. The Irish government anticipates that the legislation will reduce insurance premiums and make Ireland a more attractive market for new insurance companies.
Summary of Key Changes
1. Duty of Care Owed to Visitors
The 2023 Act amends section 3 of the 1995 Act and requires the consideration of a number of factors when determining the duty of care owed to visitors. Before the amendment, occupiers had a duty to take "such care as is reasonable" in the circumstances, to ensure the visitor does not suffer damage because of any danger on the premises (common duty of care). Under the new section 3, in determining the common duty of care, regard must be given to a number of factors including:
- the severity of the injury/damage;
- the probability of the danger existing and injury or damage being suffered; and
- the cost of taking preventative measures and practicability and social utility of the conduct creating the risk.
A "danger" is defined under the 1995 Act as a "danger due to the state of the premises".
This amendment brings the legislation in line with recent judicial decisions. In the case of Byrne v Ardenheath Company Limited [2017] IECA 293, the plaintiff was walking from the Defendant's car park to a nearby footpath when she slipped and sustained injuries. Ms Justice Irvine (a former President of the High Court), stated that in determining the occupier's duty of care to a visitor, the court must take into account the level of care that a visitor may reasonably expect to have for their own safety, the likelihood of the accident occurring, the seriousness of the injury and the cost to the occupier of removing the risk. In Mulcahy v Cork County Council [2020] IEHC 547, the minor plaintiff was injured when jumping between boulders. The High Court held that the social cost and burden on occupiers of eliminating all features from the public area should be taken into consideration, and dismissed the claim.
2. Duty of Care Owed to Recreational Users and Trespassers
Under the 2023 Act, the occupier continues to owe recreational users and trespassers a duty not to act with "reckless disregard" where there is a danger on their premises. However, it is no longer relevant whether the specific danger was one which the occupier was reasonably expected to provide protection against. The new standard under the 2023 Act is whether the occupier "knew of, or was reckless" as to the existence of this danger. This raised standard aims to rebalance the duty of care owed to recreational users and trespassers and the rights of occupiers.
3. Entry With Intention to Commit an Offence
Under section 4(3) of the 1995 Act, where a person entered the occupier's premises with the purpose of committing an offence, or where they committed an offence on the premises, the occupier was not liable unless the court decided otherwise "in the interests of justice".
The 2023 Act amends section 4(3) to provide that the occupier will not be liable unless the court determines otherwise "in exceptional circumstances", having regard to considerations such as the nature of the offence, the extent of the occupier's recklessness and/or whether the person accused is a trespasser.
The amendment purports to raise the threshold for a finding of occupier's liability and limit the circumstances where the courts can impose liability.
4. Voluntary Assumption of Risk
The 2023 Act inserts section 5A into the 1995 Act, which provides for the voluntary assumption of risk by entrants. Under section 5A, an occupier does not owe obligations to visitors or recreational users where they have willingly accepted a risk and where they are capable of comprehending that risk. Acceptance is based on their words or conduct, without proof of communication with the occupier. As such, a written agreement is not necessary to limit or release an occupier from liability.
Notably from an insurance coverage perspective, occupiers can assume that visitors or recreational users will take reasonable care for their own safety on the occupier's premises.
Practical Steps for Insurers
Arising from the 2023 Act, insurers should consider the following practical steps:
- Undertake a review of product offerings to reflect the new balancing of rights. Existing policies covering occupiers' liability are most likely drafted with the previous 'pro-entrant' duty of care in mind. This should include a review of terms and conditions, and specific inclusions and exclusions of certain provisions/terms; and
- Insurers and insurance intermediaries should assess the impact of the changes on their product oversight and governance processes and ensure proper policyholder communication on these matters.
Overall, the implementation of the 2023 Act delivers a welcome harmonisation of the legal framework governing occupiers' liability. It remains to be seen to what extent these changes deliver on policymakers' hopes for reduced insurance premiums and increased attractiveness of the Irish insurance market more generally.
Contributed by Catherine Carrigy & Tara McCormack
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
