Signed into law on 5th July 2023, the Courts and Civil Law (Miscellaneous Provisions) Act 2023 (“the Act”) has considerably altered the duty of care owed by occupiers to entrants. In a welcome development, through amendment of the Occupiers’ Liability Act 1995 and the Civil Liability Act 1961, this new legislation ensures that certain obligations placed on occupiers are now less onerous.
Duty of Care to Visitors
Of note, the Act incorporates recent seminal decisions of the superior courts in this jurisdiction, such as Wall v National Parks and Wildlife Service [2017] and Mulcahy v Cork County Council [2020]. As a result, the duty of care owed to visitors has lessened, such that courts must now be cognisant of the likelihood of an accident occurring, the severity of the possible injury, the cost and practicality of removing the risk, as well as the social utility of the activity in question.
Reckless Disregard
Furthermore, in respect of recreational users and trespassers, an occupier will now be considered to have acted with reckless disregard only where they had knowledge of the danger or was reckless as to its existence. This marks a change from the previous position whereby either knowledge of a danger or reasonable grounds of such knowledge was sufficient to impose liability on occupiers.
Breach of Duty
As well as this, the Act ensures that a trespasser who commits an offence on a premises (or has the intention of doing so) will not succeed with a claim for a breach of duty, save where the interest of justice requires so. In this regard, the nature of the offence and degree of recklessness on the occupier’s part will be considered by the court.
Voluntary Assumption of Risk
A significant change ushered in by the Act relates to the voluntary assumption of risk. Hence, a duty of care is no longer owed to visitors or recreational users who are deemed to have voluntarily assumed the risk, such that they have consented to and understand it. This removes the need for a written agreement between the parties.
Conclusion
In summary, the duty of care owed by occupiers to those who enter their premises has been rebalanced by virtue of the Act’s introduction. Indeed, a primary focus of this new legislation is to reduce insurance costs, and this, along with the key amendments outlined, can only serve to benefit businesses and landowners moving forward.
For further details on the impact of these legislative changes, please contact Avril Scally, Partner or a member of our Commercial Litigation and Dispute Resolution Team.
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