On Wednesday 15 th May 2024, OBL Partner Mary Byrne, on behalf of the Michael McLoughlin trading as Dundalk Cabs successfully obtained an Order to Dismiss a Plaintiff’s action before Judge Patrick Quinn of Dundalk Circuit Court on the grounds that the Plaintiff’s delays in bringing the claim resulted in a prejudice against the Defendant, who could not adequately defend the claim. The Court was not satisfied that the Plaintiff discharged his onus of proof in establishing negligence as against the Defendant. The Plaintiff’s claim was for the recovery of damages allegedly sustained in a trip and fall type accident in December 2017.

The Plaintiff claimed to have slipped and fell on the Defendant’s premises sustaining facial injuries. He further claimed that he suffered the injuries due to the Defendant’s negligence in failing to have mats covering the tiled floor causing him to slip on wet tiles and require nine stitches above his eyebrow causing him to suffer anxiety due to the permanent scarring.

The Defence claimed that the mats were always present on the floor, the floor was cleaned regularly by staff members and that the incident was never reported to any employee on the night.

The Defendant’s position was that they received no notification of the claim for almost two years after the incident. Frank Martin BL argued on behalf of the Defendant that this amounted to prejudice against the Defendant as the Defendant could not adequately defend the action and that it was a grossly unfair way to litigate.

Judge Patrick Quinn accepted that the Plaintiff did indeed suffer an injury on the night in question. However, he went on to state that it was unfair to fix responsibility on the Defendant in the circumstances where the Plaintiff brought a claim almost 2 years after the accident occurred. Judge Quinn accepted the Defendant’s engineering evidence which established the presence of mats. He also commented that the Plaintiff could have brought witnesses to Court to support his version of events
but did not.

The Supreme Court has ruled, by a majority of five to two in a landmark challenge, that judge-approved guidelines slashing awards for mainly minor personal injuries have legal effect and are legally binding.
That means the guidelines can only be departed from where there is no reasonable proportion between the guidelines and the damages award that should be made, the court said.
A majority of the court, four to three, ruled on Tuesday that section 7.2.g of the Judicial Council Act 2019 giving power to the Judicial Council to make guidelines in its present form is unconstitutional on the basis it infringes judicial independence.
However, six of the seven judges held the guidelines were subsequently independently ratified by the Oireachtas, and given legal effect, by the provisions of another Act which came into force in April 2021.
A majority of four also rejected Bridget Delaney’s claim she had vested property or personal rights to have her application for damages assessed by either the Personal Injuries Assessment Board or a court under any earlier personal injuries guidelines
The court has also indicated, given its findings and the importance of the case, it is prepared to grant Ms Delaney her full legal costs in the High Court and Supreme Court.
The outcome of the appeal has significant implications for the future assessment of damages for personal injuries.
The majority court who decided the guidelines have legal effect were Mr Justice Peter Charleton, Mr Justice Brian Murray, Mr Justice Maurice Collins, Ms Justice Mary Faherty and Mr Justice Robert Haughton. Mr Justice Gerard Hogan and Ms Justice Máire Whelan dissented.
From Co Waterford, Ms Delaney initiated her challenge after damages for an ankle injury suffered by her were assessed at €3,000 under the guidelines when, she contends, it was worth up to €34,000 under earlier guidelines.
In a personal injuries action against Waterford City and County Council, Ms Delaney claimed, due to the council’s negligence, she fractured her ankle bone after tripping and falling on a public footpath in Dungarvan on April 12th 2019. She required medical treatment and physiotherapy, and used a walker boot for several weeks.
After she submitted an application to the Personal Injuries Assessment Board (PIAB) in June 2019, it used the guidelines, which came into operation in April 2021, to assess her claim in May 2021 at €3,000.
In her High Court proceedings, Ms Delaney argued her claim should have been assessed under the guidelines’ predecessor, the book of quantum, at between €18,000 and €34,000.
She claimed the PIAB acted outside its powers and breached her rights in assessing her claim under the guidelines and the Judicial Council acted outside of its powers in adopting the guidelines.
After the High Court rejected her case, the Supreme Court agreed to hear a leapfrog appeal – one directly to that court from the High Court – due to the importance of the issues raised.
Because some Supreme Court judges hold positions with the Judicial Council, the appeal was heard by a court comprising four Supreme Court and three Court of Appeal judges.
The court reserved judgment in March 2023 but, in an unexpected development, asked the parties last month for written submissions on a specific legal issue relating to the impact, if any, of legislation enacted by the Oireachtas after the guidelines were approved by a majority of the judiciary in March 2021. The legislation provided for amendments to the Judicial Council Act 2019 and the Personal Injuries Assessment Board Act 2003 to make further provision in relation to the operation of the guidelines.

Article by Mary Carolan The Legal Affairs Correspondent of the Irish Times

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:

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