Redressing the balance: Changes to the Occupiers Liability Act

Background

On the 5th July 2023 the President signed The Courts and Civil Law Miscellaneous Provisions Act 2023 ("the 2023 Act") into law. On the 31st July 2023 new provisions which govern the duty of care under the Occupiers' Liability Act 1995 (the 1995 Act) were enacted. The 2023 Act aims to provide a balance between the rights of occupiers and the duty of care owed to (i) visitors and (ii) trespassers and recreational users. In addition, the 2023 Act sought to make it simpler for occupiers to limit their liability.

The reason for the legislation was that it was felt that the duties under the 1995 Act were too onerous meaning an increase in claims. The 2023 Act was one of 66 actions brought around by the Irish Governments Action Plan for Insurance Reform with the aim of (i) bringing down insurance costs for consumers and businesses, (ii) introduce more competition into the insurance market (iii) prevent fraud and (iv) reduce the burden on business, community and voluntary organisations.

Key elements of the act in relation to claims defensibility

1. Extent of Duty of Care: Visitors

Under section 3 of the 1995 Act, an occupier must take such care as is reasonable in all the circumstances not to injure a visitor, this is known as the "common duty of care".

Section 40 of the 2023 Act has amended section 3 and now requires a court to consider the following criteria when deciding if the occupier has a liability:
 

1. the probability of an accident occurring;
2. the severity of the injury which might occur;
3. the cost and practicability of eliminating the risk; and
4. the social utility of the activity which gave rise to the risk of injury.

     2.  Reckless disregard: Recreational Users & Trespassers

Under section 4(2) of the 1995 Act, an occupier owed a duty of care to recreational users or trespassers as to whether an occupier had ‘reasonable grounds’ for believing a hazard was on the premises. However, the duty of care now owed to recreational users or trespassers under the 2023 Act is not to intentionally or recklessly injure them. This is a higher standard of care than under the old provision and provides occupiers' with more protection.


3. Voluntary Assumption of Risk

Another area that Occupiers fall foul of under the old provisions was under section 5 of the 1995 Act where a written agreement was needed to limit or relieve an occupier from liability.

Section 42 of the 2023 Act has amended section 5 to allow a court to consider whether an entrant has accepted a risk based on their words or conduct, without the need for any overt interaction from the occupier of the premises. In other words, an occupier will not be found liable where a visitor or recreational user has willingly accepted a risk when entering onto their premises.

Conclusion

The aim of the new legislation is to rebalance the duty of care owed by occupiers to visitors and recreational users and bring down insurance premiums for individuals and business. Whilst the new legislation is welcome it remains to be seen how the courts will interpret them and it must be noted that the 2023 Act does not change an occupiers’ obligation under the law of negligence. However, there is no doubt that it provides new ammunition in the defendant's arsenal when seeking to defend claims of this nature.

Written byu Leanne Kiernan and Andrew Murphy.