Important reforms were approved by Cabinet recently which seeks to strike a balance with a property owner's duty of care, whether they are a business or otherwise with the personal responsibility of customers, visitors, recreational users, or members of the public.
This will be welcome news for any business or property owner where perceivably the Occupiers Act 1995 is unfairly balanced towards visitors. This is also demonstrated by section 34 of the Civil Liability Act 1961 where an occupier is not relieved of liability to a visitor if the visitor willingly accepted the risks - there must be a written agreement relieving the occupier of liability.
Key areas of reform are considered in more detail below.
1. Standard of reckless disregard rather than reasonable grounds which should apply to visitors
If legislation is enacted as proposed, it is intended to provide clarification that when the occupier of a property has acted with reckless disregard for a visitor or customer, it is the standard of reckless disregard, not reasonable grounds which should apply in relation to any consideration of liability. If recklessness is shown, the occupier is not excluded from liability.
2. Trespassers and those intent on committing an offence
This change proposes to limit the circumstances in which a court can impose liability on the occupier of a premises where a person has entered onto premises for the purpose of committing an offence. Under the current regime it is not clear what is meant by imposing liability "in the interests of justice" in this type of situation and an occupier could not know what it means.
3. Introduce a provision Voluntary Assumption of Risk
The existing draconian regime is acknowledged in the proposal where it is noted that common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by the visitor even where such a visitor can comprehend the nature and extent of the risks are willingly accepted
The proposed changes allow a broader range of scenarios where an occupier can be excluded from liability where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm. It is sufficient to demonstrate this by reference to the words or conduct of the visitor that the risks have been willingly accepted.
Although these changes are being proposed by Government, they have also been driven notably the Court of Appeal ruling in Byrne and the High Court rulings such as Mulcahy and Wall, all of which sought to rebalance responsibility between occupier and visitor.
At this point, it is planned that these changes will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022 which is still not on the Oireachtas website.The Government needs to act more quickly to bring about these changes which can only have a positive impact on Irish businesses and drive down insurance costs as envisioned.
Originally Published 22 June, 2022
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