Welcome change to the duty of care in Ireland
The Irish Government is set to approve significant amendments to the Occupiers’ Liability Act 1995 (the Act) as part of its plan to reform the insurance sector in Ireland.
The proposed amendment will curtail the liability of occupiers in this jurisdiction, and as such, will be a welcome development for business owners in Ireland. The proposals are a result of the Cabinet Sub-Group on Insurance Reform Action Plan, chaired by Tánaiste Leo Varadkar.
Four key amendments have been submitted by the government for approval by the Oireachtas:
1. The amendment of Section 3(2) by the insertion into primary law of three recent decisions, rebalancing the duty of care owed by occupiers.
The Court of Appeal decision in Byrne v Ardenheath Company Limited , where the claimant fell and sustained injuries whilst walking down a grassy bank from the defendants' car park to an adjacent footpath. The Court held that when considering whether an occupier has complied with their duty of care towards a visitor, regard should be given to the care a visitor may reasonably be expected to have for their own safety in all the circumstances, the probability of an accident occurring, the severity of the injury that might result, and the cost for the occupier of eliminating the risk. The Court also set out that occupiers are entitled to assume that an adult can look after their welfare.
The High Court decision in Mulcahy v Cork County Council , where the claimant, a minor, suffered an injury after jumping between boulders. The Court held that the social cost of removing all features from a public area, as well as the burden on occupiers, should be taken into consideration. Mr Justice White reiterated in this decision that the duty of landowners was not to remove all dangers.
The High Court decision in Wall v National Parks and Wildlife Service , where the claimant sustained injuries after tripping on a boardwalk while hiking. The Court allowed the appeal of the defendant, noting the legal principle that the standard of care has to be adapted to the conditions and emphasising the social utility of the provision of the boardwalk by the defendant. The Court also found that there was a high degree of negligence on the claimant’s part, in that she was not looking at the surface of the boardwalk when she fell, noting the impracticality of requiring occupiers of open terrain to avoid all risks associated with recreational activity.
2. The amendment of the criteria in Section 4(2) of the Act regarding when an occupier will be considered to have acted with reckless disregard.
Under the proposed amended legislation, an occupier will only be considered to have acted with reckless disregard if they act recklessly in relation to the existence of a hazard. Under the current Act, an occupier need only have had reasonable knowledge of a hazard to be considered to have acted with reckless disregard.
Whether the person has entered the premises as a trespasser will also be taken into account under the proposed amendments.
3. The amendment of Section 4(3) clarifying what is meant by ‘in the interests of justice’.
Under Section 4(3) of the Act, liability will not be imposed on an occupier if the injured person committed an offence on the premises, unless a court determines otherwise in the interests of justice.
The proposed amendment of Section 4(3) clarifies that a court will have “…regard to the nature of the offence involved and the extent of the recklessness on the part of the occupier, and the fact that the person was not a trespasser….” when considering when to impose liability in the interests of justice.
4. The insertion of Section 4A into the Act, allowing for the voluntary assumption of risk by a visitor.
Under the existing law contained in Section 34 of the Civil Liability Act 1961, in order for an occupier to be relieved of liability there must be a written agreement in place.
Under the new proposal, the occupier may be relieved of liability without a contract. The occupier must demonstrate that the risks have been willingly accepted and that this acceptance does not require evidence of communication with an occupier. However, this limitation of liability will not be relevant when an occupier is reckless.
The proposed amendments to the Act are the latest in a significant suite of changes to personal injury litigation in Ireland, following on from the success of the Judicial Guidelines on Personal Injury damages and the introduction of Statutory Instrument 490/2021 to reduce delays in proceedings.
The proposed reform of the Act will be a welcome development for Irish businesses, community groups, sports/cultural organisations and charities. The Act will provide for a fairer liability landscape and these reforms are also expected to result in a reduction in insurance premiums.
The draft legislation will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022, which is on the priority list for publication this Dáil session.
Related items: The Personal Injuries Guidelines 2021: Ireland