Changes to Occupiers Duty of Care

Published 20 April 2023

In May 2022, the Cabinet approved proposed amendments to the Occupiers Liability Act 1995 (‘the Act’) which will see occupiers duty of care being rebalanced in line with recent decisions of the Courts and to effect reforms set out in the Government’s Action Plan on Insurance Reform.

What are the significant changes?

1. Section 3

An amendment to Section 3 of the Act so that the common duty of care owed to a visitor shall now also be determined with regard to –

O      the probability of an occurrence causing a danger on the premises;

O      the probability of an injury to a visitor occurring by reason of the danger existing on the premises;

O      the probable severity of the injury to a visitor that might result from the danger;

O      the practicability, and the cost of, precautions or preventative measures; and

O      the social utility of the activity or conduct which gives rise to the risk.

The amendments takes into account the Court of Appeal decision in Byrne v Ardenheath [2017] IECA 293 and the High Court decisions in Mulcahy v Cork County Council [2020] IEHC 547 and Wall v National Parks and Wildlife Service [2017] IEHC 85.

2. Section 4(2)

Amendments to subsections of Section 4(2) of the Act which relates to the duty owed to recreational users or trespassers.

The amendments remove an inconsistency whereby despite the section seeking to impose liability only if the occupier was reckless, some of the subsections which followed imposed a lower standard of negligence due to references to reasonable grounds or reasonable action.

The amendments delete the references to reasonableness and makes it clear that recklessness is the appropriate standard for this category of entrant.

The section is also amended to includes a clarification that, when determining whether or not the occupier was reckless, the assessment of the conduct of an entrant includes whether the person entered as a trespasser - which was not specifically stated in the legislation previously.

3. Section 4(3)

The proposed legislation amends Section 4(3) of the Act by offering clarity as to when liability will be imposed on an occupier if a person enters a premises for the purpose of committing an offence or actually commits an offence.

The proposed amendment provides more certainty to occupiers as it states liability shall not be imposed. A court may however in an exceptional circumstances impose liability having regard to the nature of the offence and the extent of recklessness on the part of the occupier.

This amendment clearly has the effect of setting the bar high and it is expected that the imposition of liability on an occupier in these circumstances will be rarer than heretofore.

4. Section 4A

A new section 4A introduces a provision allowing for a broader range of scenarios where it can be shown that there was a voluntary assumption of risk on the part of a visitor or recreational user. Risks willingly accepted by the visitor/recreational user where they are capable to comprehend the nature and extent of the risks willingly accepted previously required demonstration in writing however when passed the amended legislation will allow voluntarily assumption of risk being demonstrated by reference to the words or conduct of the visitor/recreational user and does not require evidence of communication with an occupier.

These are welcome developments. The proposed changes outlined above were due to be introduced as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022 however at the time of writing this bill has not yet been passed by the Oireactas (Irish Parliament). It is anticipated that the changes will come into effect during 2023.