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