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‘Voluntary assumption of risk’ key in liability reform

Reform of duty-of-care legislation is to go ahead with an amendment to the Occupiers’ Liability Act 1995, in a bid to drive down insurance costs which the Government regards as an impediment to economies and communities.

The move follows recommendations from a review of current legislation here and in other common law jurisdictions, and will rebalance towards the personal responsibility of customers and members of the public.

The proposed reform will include voluntary assumption of risk, as part of the Government’s Action Plan for Insurance Reform.

Head 5 will amend the 1995 act to introduce a provision on the voluntary assumption of risk. 

Willing acceptance of risks

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. 

Recent Irish case law, in relation to occupiers' liability, has also been taken into account, notably the Court of Appeal ruling in Byrne and the High Court rulings in Mulcahy and Wall.

Tánaiste Leo Varadkar 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.”

Reasonable balance

He said the change will strike a more reasonable balance, between operator responsibility to keep customers safe, and that which individuals themselves can be expected to take responsibility for when entering a business, club or community building.

Justice minister Helen McEntee said that the proposed reforms contain four 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,” she said.

The proposed legislation will be placed before the Oireachtas for enactment as part of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022.