Navigating Change: Key Amendments to Occupier’s Liability for Insurance Companies commenced on 31 July 2023

The Courts and Civil Law (Miscellaneous Provisions) Bill 2023 has been signed into law by the President, Michael D Higgins on 5 July 2023. This Bill encompasses a range of reforms, including provisions that govern occupier’s duty of care. These are long-awaited and will be welcomed by insurers and businesses alike. This article written by Deborah Moore, Managing Partner and Elena O’Driscoll, Trainee Solicitor gives an overview of the key changes.

Introduction:

This Bill aims to bring about significant reforms in various areas of law, including insurance, court processes, and legal services. The primary focus of the Bill, however, is to amend the Occupiers Liability Act 1995, and reduce insurance costs for businesses, community groups and organisers of events by acknowledging personal responsibility of visitors, recreational users, and trespassers. The part of the Act relevant to occupier’s liability was commenced on 31 July 2023.

Three Key Amendments:

This new Bill introduces three key amendments to Sections 3, 4, and 5 of the Occupier’s Liability Act 1995, as follows:

1. Duty of care to visitors:

Section 3 introduces a new subsection that determines the extent of the common law duty of care owed by an occupier to a visitor. It emphasises factors such as the probability of a danger, the likelihood of injury or damage, the severity of potential injuries, the practicality and cost of preventive measures, and the social utility of the activity or conduct giving rise to the risk. This provision shows an acceptance that the duty of care on occupiers to remove all risks from a premises is impractical.

Section 3(A) addresses the liability of an occupier when a person enters the premises with the intention of committing an offense. The amendment states that the occupier will not be liable for breaching the duty imposed under the Act unless the court determines it to be in the “interest of justice”.

2. Duty of care to recreational users or trespassers:

Section 4 eliminates the basis of liability for an occupier being “reckless” about the existence of a danger. Instead, the occupier must have known or had reasonable grounds to believe that a danger existed on the premises. This amendment also extends to the duty owed to recreational users and trespassers. The occupier must have reasonable grounds to believe that a danger existed or that the person was likely to be in the vicinity of the danger for a duty of care to arise.

3. Voluntary assumption of risk by the entrant:

A new provision, Section 5(A), introduces the concept of voluntary assumption of risk. Occupiers will not be obliged to fulfil their duty of care under Section 3 if a visitor willingly accepts the risks. The determination of same depends on whether the occupier has communicated the risks, interacted with the visitor, or demonstrated awareness of the risks. Where a court finds that a visitor or recreational user has willingly accepted a risk, the occupier will have no liability.

Conclusion:

Overall, the Courts and Civil Law (Miscellaneous Provisions) Bill 2023 seeks to reform various aspects of Irish civil law. By amending the Occupiers Liability Act 1995, the Bill aims to reduce insurance costs and reduce legal burden on some occupiers in some respects. Additionally, it clarifies the obligations of entrants and aims to rebalance the duty of care owed by occupiers to visitors and recreational users.

For more information on anything related to this article, please contact our Insurance Team.