Press release
Tánaiste and Minister McEntee announce amendments to duty of care legislation
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- occupiers’ duty of care responsibilities must be balanced with personal responsibilities, including those of customers and members of the public
- reform proposed to include voluntary assumption of risk, and will deliver upon another key action in the government’s Action Plan for Insurance Reform
- shared determination across Government to remove the impediment that high insurance costs have on our economy and communities
The Minister for Justice, Helen McEntee, has received government approval to reform duty of care legislation, a key insurance reform measure.
The Tánaiste and Minister for Enterprise, Trade and Employment, Leo Varadkar, who chairs the Cabinet sub-committee on insurance reform, said it is an important part of the government’s Action Plan on Insurance Reform. It will amend the Occupiers’ Liability Act 1995 in relation to the duty of care.
The specific proposals around duty of care follow recommendations from a review of current legislation in Ireland and other common law jurisdictions, as well as notable Irish case law, in relation to occupiers' liability.
The Tánaiste said:
"This new law is an important part of what we are doing to make insurance more available and less expensive for customers, community groups, clubs and businesses and to give them more choice of insurers. I believe it strikes a new, fairer and more reasonable balance, between the steps an owner or operator of a premises must take to keep their customers and visitors safe, and what individuals themselves can be expected to take responsibility for when entering a business, club or community building for example."
Announcing her plans for reform, Minister McEntee said:
"I am proposing to amend a number of sections of the Occupiers’ Liability Act 1995 in line with the government policy objective of restricting the liability of occupiers.
"There is a shared determination across Government to remove the impediment that high insurance costs have on our economy and communities – on our community groups, organisers of community events and small businesses.
"I believe these proposals strike the right balance between ensuring that businesses, community groups and organisers of events fulfil their duty of care responsibilities, while also acknowledging the importance of personal responsibility on the part of customers and members of the public.
"The proposed reform builds on a Review Paper published by my department in February 2021. The amendments contain 4 key developments:
- inserting into primary law a number of recent court decisions which rebalance the duty of care owed by occupiers to visitors and recreational users
- changing the standard to clarify that when the occupier of a property has acted with reckless disregard for a visitor or customer, it is the standard of reckless disregard rather than reasonable grounds which should apply in relation to any consideration of liability
- limits to 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; and
- allowing for a broader range of scenarios where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm
"The combined effect of these developments is intended to lead to further reductions in insurance premiums, building on the success of the personal injuries guidelines introduced last year. We will now proceed to draft the proposed legislation, which will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022."
An outline Scheme of the Minister’s proposals for the amendment of the Occupiers’ Liability Act 1995 is available below.
Outline Scheme of proposals for the amendment of the Occupiers' Liability Act 1995
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The proposed amendments to the Occupiers’ Liability Act 1995 are summarised as follows:
The Occupiers’ Liability Act 1995 should be amended to take account of recent case law, notably the Court of Appeal ruling in Byrne and the High Court rulings in Mulcahy and Wall, all of which sought to rebalance responsibility between occupier and visitor.
This Head provides for amendments to section 4(2) of the Occupiers’ Liability Act 1995 which provides for circumstances to which a court shall have regard in determining whether or not an occupier has acted with reckless disregard for the person or the property of the person.
This Head provides for an amendment to section 4(3) of the Occupiers’ Liability Act 1995 which provides for the circumstance where a person enters onto premises for the purpose of committing an offence or, while present thereon, commits an offence. The purpose of the amendment is to provide for legal clarity.
This Head has essentially the same objective as Head 1 to amend the Occupiers’ Liability Act 1995 to take account of the recent case law in the cases of Byrne, Mulcahy and Wall, which sought to rebalance responsibility between occupier and recreational user in respect of a structure, as provided for in section 4(4) of the Act. Accordingly, the explanatory note for Head 1 applies also in the relation to this Head.
The purpose of this Head is to amend the Occupiers’ Liability Act 1995 to introduce a provision on the voluntary assumption of risk into the 1995 Act. Under the existing law contained in section 34 of the Civil Liability Act 1961, in order for an occupier to be relieved of liability to a visitor, it is not sufficient that the visitor willingly accepted the risks. There must be a written agreement relieving the occupier of liability.