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At present, the law on Duty of Care in respect of the Occupiers Liability Act, 1995, is seen by many business owners as unfairly favoured towards visitors to their premises, which results in a greater chance of business owners being held liable in insurance liability claims. Section 34 of the Civil Liability Act 1961, provides that for an occupier to be relieved of liability to a visitor, it is not sufficient that the visitor willingly accepted the risks, but rather there must be a written agreement relieving the occupier of liability.

The aim of the proposed amendments would see a significant rebalancing of the law on Duty of Care. The planned reforms for the insurance sector would seek to balance a business’s duty of care or that of a property owner with the personal responsibility of customers, visitors or members of the public. The Government believes it is crucial to drive down insurance costs as they have now become an encumbrance to communities and economies around Ireland.

Changes to the law on duty of care will be brought through amendments in four key areas, which will be placed before the Oireachtas as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022. Minister for Justice Helen McEntee set out what these amendments will entail as follows, if passed:

• A rebalancing of the duty of care owed by occupiers to visitors and recreational users being inserted into primary law. Recent Irish case law has been considered, notably the decision in Byrne v Ardenheath Company Ltd [2017] IECA 293 and the recent High Court cases of Mulcahy v Cork City Council [2020] IEHC 547 and Wall. Mr Justice White, in Wall v National Parks and Wildlife Service [2017] IEHC 85, did not accept that the duty of care imposed on an occupier under the Occupiers Liability Act 1995 was an “absolute or strict” duty.
• Change to the standard of clarity in respect of when the occupier of a property has acted with reckless disregard for a visitor or customer, the standard of reckless disregard rather than reasonable grounds which should apply in relation to any consideration of liability.
• Limitations on the circumstances 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.
• A broader range of scenarios will be accommodated for in these amendments, where it can be shown that a visitor or customer has voluntarily assumed a risk resulting in harm.

The Director of the Alliance for Insurance Reform, Peter Boland, indicated that while the news of the approval of proposed measures was “balanced, fair, practical and propionate”, there is a need for urgency on the part of the Government to ensure that working legislation is not delayed.

Tánaiste Leo Varadkar believes that the steps being taken will greatly impact society resulting in reduced insurance costs and a wider insurance market to choose from and striking a new and fairer balance between the steps required to be taken by the owners of a property and what individuals/visitors can be expected to take responsibility for when entering a premises.

The Government is now proceeding to draft the proposed legislation, which will be placed before the Oireachtas for enactment.

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