Duty of Care – Legislative changes Occupiers Liability Act

August 3, 2023 in News

The significant changes to the duty of care owed by occupiers, contained in the Courts and Civil Law (Miscellaneous Provisions) Act, 2023 (“2023 Act”), will be roundly welcomed by businesses and insurers as a re-alignment of the balance between the responsibilities of business owners and the rights of those visiting their premises. 

The new legislation, which came into effect on 31 July 2023, has amended several sections of the Occupiers’ Liability Act, 1995 (“1995 Act”), viewed by many businesses as being unfairly favourable towards visitors to their premises in respect of dangers existing on their premises.

This new legislation has been welcomed by Business in Ireland and particularly community groups, charities, sports and cultural organisations.  

This Act must also be seen in context as part of a wider set of reforms to personal injury litigation in Ireland.

In this article, we consider some of the main points of interest introduced in the 2023 Act.

Duty to Visitors

The 1995 Act provides that an occupier must take such case as is reasonable in all of the circumstances to ensure that the visitor does not suffer injury or damage. Whilst this still applies, the new legislation sets out that a court, when determining the duty of care owed by an occupier, must consider a number of factors:

The probability of danger on the premises;
The probability of injury or damage occurring, due to the presence of danger on the premises;
The probable severity of such injury or damage to a visitor, due to the danger on the premises;
The predictability and the costs of precautions and preventative measures; and
Where applicable, the social utility of the activity or conduct that gives rise to the risk of the injury or damage.

These factors clarify what the court must consider in assessing the potential liability of an occupier, and the duty of care owed by an occupier to a visitor to the premises.

Duty to recreational users and trespassers

Previously, under the 1995 Act, an occupier was required to not act with reckless disregard towards a recreational user or trespasser. However, the 2023 Act, in a significant departure from that position, has removed reference to the occupier’s knowledge on “reasonable grounds for believing that” a danger existed, that the person (or their property) was likely to be on the premises, and whether they were likely to be in the vicinity of the danger. 

The test is now whether the occupier “knew, or was reckless” in this regard. Judicial interpretation of this is awaited with interest in respect of new cases.

The new legislation also allows for consideration as to whether the entrant entered the premises as a trespasser. Previously, when an entrant entered the premises for the purpose of committing an offence, the occupier would not be liable unless a court held it was in the “interests of justice”. However, the 2023 Act now provides that this liability will not attach to an occupier, except in “exceptional circumstances”, such as the nature of the offence, the effect of the recklessness of the occupier or the fact that a person was not a trespasser.

This will limit the court’s scope in the imposition of liability on an occupier in cases of injury sustained whilst trespassing.

Voluntary assumption of risk

The 2023 Act has given statutory footing to the defence of voluntary assumption of risk. Where a visitor or a recreational user willingly accepts risks, and where they are capable of understanding the nature and extent of those risks, then an occupier will not owe them a duty of care. The risks may be accepted by words or by actions, and when a court finds that the risks were willingly accepted, this will remove the liability of the occupier in that regard.

The changes under the 2023 Act will not apply to any claims or proceedings already in being, which will remain subject to the previous position. As such, it may take some time, much like the introduction of the personal injuries’ guidelines, for these new provisions to be applied and for the reforms to have the impact intended of limiting the scope of an occupier’s liability and thus reducing the number of claims brought. 

Niall Bass

Senior Associate

OBL Solicitors

3rd August 2023

Foxrock Golf Club Foursomes Event

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OBL are delighted to sponsor the Foxrock Golf Club Foursomes event that commenced in glorious sunshine yesterday. The event runs all week with the eventual winners of this prestigious event celebrated at the Foursomes Dinner next Friday.

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May 29, 2023 in News


The Supreme Court has acceded to an application for leave to appeal a decision of the Court of Appeal in a dispute to determine liability as between two insurers, arising from a claim for compensation for injuries sustained by an employee whilst he was operating a rubbish truck.

The case arises from an accident in December 2013 involving an employee of Urban and Rural Recycling Limited, which occurred when he was using a lifting hoist mechanism at the back of a rubbish truck, to lift a wheelie bin full of glass, and during this process, the wheelie bin became detached and fell on top of him, causing him to sustain serious injuries.

The employer held two insurance policies at the time of the accident, namely an employer liability policy with RSA Insurance and a motor fleet policy with Zurich Insurance. The RSA policy covered any injuries sustained by an employee in the course of their duties, unless such injuries were relating to a liability under the Road Traffic Acts. The Zurich policy covered injury or loss from the use of a mechanically propelled vehicle, with an exclusion for liability for injury suffered by anyone driving the vehicle or anyone in charge of the vehicle for the purpose of driving, which is standard in motor insurance policies.

The plaintiff, Mr Moore, brought proceedings against his employer, and arising from these proceedings, Urban and Rural Recycling Limited and RSA sought a declaration from the High Court that Zurich was liable to indemnify the employer against Mr Moore’s claim.

In the High Court, Ms Justice Reynolds held that Zurich was responsible, as the employer’s liability to the employer was one required to be insured under the Road Traffic Acts. This was on the basis that term “use” under the Road Traffic Acts included the use of the lift mechanism. Despite the fact that Mr Moore had driving the vehicle immediately before the accident, the court found that at the time of the accident, he was not in charge of the vehicle for the purpose of driving 

Zurich appealed this decision to the Court of Appeal, which held that liability to be insured under the Road Traffic Acts is a liability arising out of the negligent use of a vehicle, by the user of the vehicle. The court concluded that Mr Moore was the user, and as such, liability of the employer to the employee was not a liability that was required to be insured under the Road Traffic Acts. Mr Moore, as an employee, could not be legally liable to pay damages to himself, and so his employer could not incur any vicarious liability. The court found that Mr Moore was in charge of the vehicle for the purposes of driving the vehicle at the time of the accident, and thus the accident fell within the exclusion clause in the Zurich policy.

The Court of Appeal overturned the High Court decision, and found RSA were responsible to answer the claim of Mr Moore.

RSA applied to the Supreme Court for leave to appeal, outlining that the Court of Appeal judgment was based upon the assumption that Mr Moore was the sole user of the vehicle, and thus could have no liability to himself. It was also submitted that the case raised important issues relating to whether the employer was a “user” of the vehicle within the meaning of the Road Traffic Act, 1961, and whether the 1961 Act operates to exclude civil liability of one user, arising out of the use of the vehicle, from mandatory insurance requirements.

The Supreme Court this week accepted that the appeal raises significant issues relating to the Road Traffic Acts, to ambit of mandatory motor insurance, and potentially novel issues in respect of the correct implementation of EU Directives. which requires mandatory insurance cover for all personal injuries to “all passengers, other than the driver, arising out of the use of a vehicle”.

A date for the hearing has not yet been set, and the precise questions to be asked of the court shall be refined at case management of the matter in due course. A definitive decision from the Supreme Court will provide welcome clarification on the term “user” under the Road Traffic Acts, which should in time negate further indemnity and cover arguments between insurers arising from workplace injuries arising from vehicles covered under motor fleet policies.

Niall Bass Senior Associate OBL Solicitors