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Changes to Irish law on occupiers’ liability
Insurers and businesses alike will welcome changes to the law on occupiers’ liability that took effect on 31 July. Broadly speaking, the changes reduce the burden on occupiers in respect of the duty of care they owe to entrants on their premises and raise the threshold for a finding of liability against an occupier.
The changes will not impact on any claims or proceedings already in being – these will continue to be decided under the “old regime”.
It may take some time before cases under the revised legislation make their way to the courts and we see how the new provisions are applied in practice.
Duty of care owed to visitors
An occupier continues to owe a common duty of care to lawful visitors, i.e. the occupier must take such care as is reasonable in all the circumstances to ensure that the visitor does not suffer injury or damage by reason of any danger on the premises.
The legislation now sets out a non-exhaustive list of factors that will be taken into account in determining whether an occupier complied with this common duty of care:
- the probability of a danger existing on the premises;
- the probability of injury or damage to 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;
- where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in paragraph (b).
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.
Previously, the factors to take into account when determining whether an occupier had acted with reckless disregard (and so breached their duty of care) included whether the occupier “knew or had reasonable grounds for believing” that (a) there was a danger on the premises; (b) the person (or their property) was or was likely to be on the premises; (c) the person (or their property) was in or likely to be in the vicinity of the danger.
Now the test is whether the occupier “knew of, or was reckless” as to the above factors. This raises the threshold for a finding of liability against the occupier.
The legislation now also states that regard may be had to whether the entrant entered the premises as a trespasser.
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”. The legislation now provides that an occupier will not be liable unless a court determines otherwise “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 that fact that the person was not a trespasser. Again, this raises the threshold for a finding of liability.
Duty to recreational users to maintain a structure in a safe condition
Where there is a structure on a premises for use primarily by recreational users, an occupier continues to owe a duty to maintain the structure in a safe condition. The legislation now sets out a non-exhaustive list of factors that will be taken into account when determining whether an occupier has complied with this duty. These factors are the same as those set out above in respect of visitors.
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.
The legislation states that liability will not be apportioned (as is the case where a court makes a finding of contributory negligence) in respect of a finding that a visitor or recreational user willingly accepted a risk. Where a court makes such a finding, an occupier will have no liability.
Ireland