For almost 30 years, the Occupiers’ Liability Act, 1995 (“the 1995 Act”) has represented the settled statutory position in Ireland in relation to an occupier’s liability to various categories of persons present on their premises. A position which business-owners and homeowners, as well as their indemnifiers and insurers, have long considered to fix occupiers with an unduly onerous duty of care.

The Courts and Civil Law (Miscellaneous Provisions) Act, 2023 (“the 2023 Act”), which was signed into law on 31 July 2023, has now amended key parts of the 1995 Act, with the intention of addressing the imbalance which has existed between protecting the rights of occupiers whilst at the same time endeavouring to provide a right of recourse for injured parties.

 

Duty owed to Visitors:

Section 3 of the 1995 Act deals with the duty of an occupier towards visitors to their premises. 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 [1]. This includes someone present as of right or by virtue of a term in a contract.

Section 3, as amended, continues to oblige an occupier to 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.

Guidance has, however, now been provided, by way of a new Section 3(1A), to assist in determining both (1) the extent of the duty owed by the occupier; and (2) whether they can be considered to have complied with it.

Although not an exhaustive list, Section 3(1A) provides that in considering an occupier’s duty of care to a visitor, regard shall be had to things such as:

  • The probability of the danger existing on the premises;
  • The probability of the occurrence of an injury to […] a visitor by reason of a danger existing on the premises;
  • The probable severity of an injury to a visitor that might result […];
  • The practicability, and the cost, of precautions or preventative measures; and
  • Where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage.

The same list of considerations applies to an occupier’s duty of care to a recreational user.

 

Duty owed to Recreational Users

Section 4 of the 1995 Act provides for the duty owed by an occupier to a recreational user of the premises. It also deals with an occupier’s duty of care to trespassers. In that respect, occupiers are, of course, still obliged not to injure the person/damage their property intentionally, or whilst acting with reckless disregard. What has changed, however, is the level of knowledge required of the occupier before any liability can attach.

Matters such as the existence of a ‘danger’ on the premises, and whether it was something which the occupier might reasonably be expected to protect against, are at the heart of any consideration of potential liability arising under Section 4 in relation to recreational users.

However, whereas under Section 4 as originally drafted, if an occupier was deemed to have “reasonable grounds for believing” something (i.e., that the entrant was there on the premises), they would be fixed with liability in the event that person suffered injury. In a welcome amendment, however, the threshold has been raised: – now requiring an occupier to have been “reckless as to” something – necessitating a higher degree of culpability in order for fault to attach.

The duty owed by occupiers to persons present for the purpose of committing a criminal offence or who commit a criminal offence whilst on the premises has also been revised. Previously, an occupier would not be held liable for injury to those persons unless a court felt such was in the interests of justice. The position now is that an occupier will only be liable in ‘exceptional circumstances’. This is a sensible change, and one clearly made with the protection of property owners and their insurers in mind.

 

Voluntary Assumption of Risk

Finally, a new Section 5A provides that an occupier will not be held liable for injury to visitors or recreational users who voluntarily accept/take a risk, in circumstances where they are capable of comprehending the nature and extent of such a risk.

Importantly – particularly in a jurisdiction where the view has long been held that waivers ‘are not worth the paper they’re written on’ – showing that a person willingly accepted a risk will not require producing evidence of communication or interaction with the occupier; rather, such will be capable of being adduced purely from the words and/or conduct of the visitor/recreational user.

The nature of the language used in Section 5A suggests that being able to maintain a full defence of claims involving younger children (i.e., minors) may continue to be challenging.

 

Opinion

As was so succinctly put by Justice Irvine in O’Flynn v Cherry Hills Inns Ltd, “Adult members of society are obliged to take care for their own safety and cannot divest themselves of responsibility for their actions.” It was in the same case she noted that “… an occupier is not the insurer of the welfare of a visitor …”.

Similarly, in a less-oft cited, but nonetheless pithy decision of the High Court, Justice Twomey in Cronin v Ardkeen Sales Ltd noted that, “When unfortunate accidents occur it is not always somebody else’s fault …”.

Whilst these (and other) comments and observations from the Courts over the last few years clearly represent the application of ‘common sense’ to the determination of liability in public and employer liability claims – and evidence an increased willingness on the part of the judiciary to take proper account for the concept of personal responsibility – they were not underpinned by legislation. In placing the list of considerations referred to above on a legislative footing, therefore, the Oireachtas is arguably now recognising at least some of the jurisprudence which has developed over the last 25 years – and, in particular, the last decade since the establishment of the Court of Appeal – in the context of public liability claims.

In having explicit regard, for example, to the concept of ‘social utility’, the amended Section 3(1A) echoes observations from the High Court as to the ‘chilling effect’ of public liability claims; in particular, on the operators of leisure and sporting facilities (to include Local Authorities)[2].

Similarly, consideration as to the practicability, and the cost, of precautions or preventative measures also reflects arguments put forward by defendants in numerous cases over the last few years as to the unreasonable expectations placed on them that they maintain their premises in a state of near perfection.

The changes introduced by the 2023 Act, whilst long overdue, will no doubt be welcomed, not only by those in control of premises, but also their insurers and indemnifiers, who, going forward, will now be better equipped to fight personal injuries claims brought on foot of the 1995 Act. It will take time before the true effect of the changes is seen – the amendments will not act retrospectively –, but it is hoped that they will go towards ensuring as fair a balance as possible between the rights of occupiers of premises versus those of the entrants thereon.

Martin Browne and Chris Carlyle

[1] A distinction is drawn with a recreational user, who is a person who, with or without the occupier’s permission or at the occupier’s implied invitation, is present on premises without a charge […] for the purpose of engaging in a recreational activity.

[2] 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

Occupiers' Liability