Like all owners and occupiers of domestic and commercial property, those operating in the sports and leisure industries have obligations when it comes to ensuring the safety of people present on their premises.

For almost 30 years in Ireland, the Occupiers’ Liability Act 1995 (“the 1995 Act”)[1] has represented the settled law in relation to an occupier’s liability to various categories of persons, from visitors to recreational users, to . The 1995 Act was amended last year,[2] with the intention of addressing an imbalance between protecting the rights of occupiers whilst at the same time endeavouring to provide a right of recourse for injured parties.

The obligations arising under the 1995 Act are ever present for land and property owners and occupiers active in the Irish sports and leisure industries, from those providing services, like gyms and swimming pools, to sporting venues. These organisations must be constantly alive to the conditions of their premises and take appropriate care to ensure that people present thereon do not suffer injury.

We explore below the impact of the recent law change on sporting organisations, as well as offer comment on how occupiers’ liability risks arising in sports contexts can be effectively mitigated to limit liability exposure.

If you have any questions or would like advice on OL or civil liability claims in Ireland, please contact Chris Carlyle via Chris.Carlyle@h-f.co.uk. For matters outside of Ireland (in the UK or internationally), please contact HF’s Head of Sports, Imogen Mitchell-Webb via Imogen.Mitchell-Webb@h-f.co.uk.

 

Duty owed to visitors

 ‘Occupier’ is defined in the 1995 Act as “… a person exercising such control over the state of the premises that it is reasonable to impose upon that person a duty towards an entrant in respect of a particular danger thereon”. The definition of ‘premises’ includes “land water and any fixed or moveable structures thereon”. These broad definitions therefore capture organisations operating in the sporting sector, from grassroots sports facilities, through to professional club facilities and stadiums.

A ‘visitor’ is defined in the 1995 Act as someone who is present on premises at the invitation, or with the permission, of the occupier. Therefore, both sporting participants and spectators can be visitors.

An occupier must take such care as is reasonable in all the circumstances to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.[3] This is a wide description, and it is key in OL disputes to define the precise scope and extent of the duty of care in each situation. Only then can you explore whether that duty has been breached.

The 2017 case of Massey[4] provides a good illustration of applying this general obligation to specific circumstances. This case related to an injury sustained by the plaintiff whilst he was partaking in a game of five-a-side football on an astroturf pitch at the defendant’s premises, Longwood G.A.A. Club. The GAA club was found to have failed in its duty of care to maintain the ball stop netting in a safe and proper condition and in particular to ensure that the netting did not become slack over time. The plaintiff, deemed a visitor to the property and who’s finger had to be partially amputated, was awarded just under €150,000 in damages by the High Court.

The 2023 amendments seek to assist with identifying the scope of the duty of care, by including a non-exhaustive list of considerations to which an occupier must have regard, such as the probability of the danger existing, the probability of an injury occurring, the severity of a likely injury, the cost of preventive measures, and the social utility of the activity.

In the world of sports, the concept of ‘social utility’ is key, and the High Court has previously noted the ‘chilling effect’ that claims can have on sporting facilities and sporting venues.[5] Although sports can present risks, they also offer invaluable health, social and cultural utility for participants and the public at large.

Similarly, consideration of the practicability and cost of potential risk mitigation measures reflects years of case law in which defendants argue against unreasonable expectations being placed on organisations to eradicate risks entirely, or to maintain their premises in a constant state of near perfection.

 

Duty owed to recreational users and trespassers

‘Recreational user’ is defined as “an entrant who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge (other than a reasonable charge in respect of the cost of providing vehicle parking facilities) being imposed for the purpose of engaging in a recreational activity […].” In the sporting context, this can include, for example, persons engaging such as walking, kayaking, wakeboarding, wild swimming etc, as well as those playing sports in public spaces such as parks.

Following the 2023 amendments, occupiers are obliged not to injure a recreational user or damage their property either intentionally or owing to reckless disregard.[6] This signals a significant change from the pre-2023 legal position, which fixed occupiers with liability simply if an injury or damage occurred and the occupier had

The requirement for there to be intention or reckless disregard on an occupier’s part limits the scope of the duty of care owed to recreational users when compared to that owed to ‘visitors’. The same list of considerations referred to above applies vis-a-vis an occupier’s duty of care to a recreational user.

The duty of care owed to trespassers (i.e. persons who commit or are present for the purpose of committing a criminal offence), has also been reduced in the 2023 amendments. Previously, liability would arise where this was in the interests of justice, whereas now, ‘exceptional circumstances’ are required.

 

Voluntary assumption of risk

Another amendment to the 1995 Act[7] clarified that an occupier will not be held liable for injury to a visitor or recreational user who voluntarily accepts a risk, in circumstances where they are capable of comprehending the nature and extent of such a risk. This reflects the ‘common sense’ approach to liability which has been increasingly favoured by the Irish Courts in recent years and is a welcome development for sporting organisations and their insurers, given the inherent risks involved in participating in and viewing sports.

This principle is well illustrated in the case of Dunne[8], where a student claimed that a PE teacher breached their duty of care in respect of failing to instruct the class adequately about high jump technique, and failing to conduct the exercise safely. The case ultimately failed, as Mr Justice Barr acknowledged the need for sporting participants to have due regard to their own safety. It was also relevant that the plaintiff had done three successful jumps prior to injuring himself. The judge noted that “such injuries occur when one is participating in a sporting activity” and found no breach of duty or negligence.

Former Justice Mary Irvine has also been a fervent advocate of a greater emphasis being placed on personal responsibility. As was so succinctly put by her in O’Flynn[9], “Adult members of society are obliged to take care for their own safety and cannot divest themselves of responsibility for their actions.”

Importantly – particularly in a jurisdiction where the view has long been held that waivers of liability carry little weight – a defendant need not establish evidence of communication with the plaintiff, as acceptance of risk can be adduced from the words and/or conduct of the visitor or recreational user.

The risks arising at a sporting premises will depend on the sporting activities taking place, the features of the venue and the visitors and participants present. Generally speaking, occupiers will need to ensure they are identifying and adequately mitigating risks in order to limit their exposure to claims, and to improve claims defensibility.

Some key considerations are:

  • Risk assessments – Detailed and thorough risk assessments should be carried out in relation to all premises, equipment and activities taking place on site. Risks should be highlighted and appropriate risk mitigation measures set out.
  • Implementing risk mitigation measures – A paper risk assessment will have no impact on minimising risk unless the measures proposed are put into practice. Appropriate measures will depend on the circumstances and can include things like staff training, maintenance of equipment (e.g. gym equipment) and implementing specific procedures around tasks (e.g. cleaning).
  • Enforcement – It is important to assess compliance with training and procedures and ensure that compliance is maintained over time. Arrangements should be in place to re-train and refresh staff where necessary, and to discipline staff for non-compliance as and when required.
  • Regular review – Organisations, premises, visitors, and staff change, and over time shared learning within the sports sector improves. Therefore, it is vital to ensure that policies and training are reviewed at suitable intervals and updated as necessary, in line with any change in risks or industry standards.
  • Accurate reporting and record keeping – Incidents and injuries are inevitable, and it is therefore paramount that occupiers ensure they are best placed to deal with and defend any personal injury claims arising. In this regard, nothing beats being able to produce and rely on in court, contemporaneous written and visual evidence. Therefore, it is imperative that when accidents happen, CCTV footage and relevant documents are retained, accident report forms are completed, and detailed witness statements are taken, where possible. Legal advice should be sought as and when necessary.

 

Comments

In short, the recent amendments to the 1995 Act will be welcomed by sporting organisations and their insurers, as they assist with defining the scope of the duty of care owed by occupiers to visitors, and notably limit that duty in respect of recreational users. Furthermore, the concept of acceptance of risk and personal responsibility has been reinforced, which is of particular relevance in sporting contexts. This has the effect of addressing the previous imbalance between the duties imposed on occupiers in the sporting sector, and the rights of those who suffer injuries on sporting premises.

This development of the law demonstrates application of ‘common sense’ to the determination of an occupier’s liability, and updates the law in line with jurisprudence that has developed over the last 25 years. This approach of the Irish Courts is perhaps best summed up in a particularly pithy decision of Mr Justice Twomey the High Court in Cronin, where he stated that “when unfortunate accidents occur it is not always somebody else’s fault …”.[10]

 

[1] Occupiers’ Liability Act 1995

[2] By the Courts and Civil Law (Miscellaneous Provisions) Act, 2023 (“the 2023 Act”), which was signed into law on 31 July 2023.

[3] s.3 1995 Act. Not only is there an obligation pertaining to the condition of the premises, but occupiers must also be alive to the potential for vicarious liability to attach under the 1995 Act.

[4] Massey -v- Prionsias Stagg [2017] IEHC 21

[5] See for e.g. comments in Donnelly -v- Dunnes Stores [2019] IEHC 347 and O’Mahoney & Kennedy -v- Tipperary County Council & Ors [2021] IEHC 643

[6] s.4 1995 Act

[7] s.5A 1995 Act

[8]Dunne -v- Trustees and Board of Management of St. Paul’s Secondary School [2019] IEHC 22

[9] O’Flynn -v- Cherry Hills Inns Ltd [2017] IECA 211

[10] Cronin -v- Ardkeen Sales Ltd [2017] IEHC 406