The Courts and Civil Law (Miscellaneous Provisions) Act 2023 has been signed into law and brings some significant changes to the law in Ireland.
The main changes concern the Occupier’s Liability Act 1995 and the venues in which you can pursue data protection breaches.
Occupier’s Liability Act 1995
Section 3 of the Occupier’s Liability act 1995, which deals with the duty of care owed to visitors, has been amended by the insertion of the following:
“(1A) Without prejudice to the generality of subsection (2), in determining the extent of the common duty of care of an occupier towards a visitor, and whether it has been complied with by the occupier, regard shall be had, as appropriate, to all of the circumstances and matters referred to in that subsection, which shall include but are not limited to the following:
(a) the probability of a danger existing on the premises;
(b) the probability of the occurrence of an injury to, or of damage suffered by, a visitor by reason of a danger existing on the premises;
(c) the probable severity of an injury to a visitor that might result from a danger existing on the premises;
(d) the practicability, and the cost, of precautions or preventative measures;
(e) where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in paragraph (b).”,
This amendment reflects the difficulty for an occupier to remove all risks from entering a premises.
Section 4 of the Occupier’s Liability Act 1995 deals with the duty owed to recreational users or trespassers and there is an amendment of this section, too. Section 4 is amended by the insertion of the following:
41. Section 4 of the Act of 1995 is amended—
(a) in subsection (2)—
(i) in paragraph (a), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
(ii) in paragraph (b), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
(iii) in paragraph (c), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
(iv) by the deletion of paragraph (d), and
(v) in paragraph (g), by the substitution of “person, including whether or not he or she entered onto the premises as a trespasser, and” for “person, and”,
(b) in subsection (3)(a), by the substitution of “in exceptional circumstances, having regard to matters such as the nature of the offence, the extent of the recklessness on the part of the occupier, or the fact that the person was not a trespasser” for “in the interests of justice”,
(c) in subsection (4), by the substitution of “shall, subject to section 5A, owe” for “shall owe”, and
(d) by the insertion of the following subsection after subsection (4):
“(5) Without prejudice to the generality of subsection (4), in determining under that subsection whether or not an occupier has complied with the duty to take reasonable care to maintain a structure in a safe condition, regard shall be had, as appropriate, to all of the circumstances of the case, which shall include but are not limited to the following:
(a) the probability of a danger existing on the premises;
(b) the probability of the occurrence of an injury to, or of damage suffered by, a recreational user by reason of a danger existing on the premises;
(c) the probable severity of an injury to a recreational user that might result from a danger existing on the premises;
(d) the practicability, and the cost, of precautions or preventative measures;
(e) where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in paragraph (b).”.
Section 5 of the 1995 act deals with voluntary assumption of risk. The Courts and Civil Law (Miscellaneous Provisions) Act 2023 inserts a new section as follows:
5A. (1) The common duty of care under section 3 shall not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by the visitor where that visitor is capable of comprehending the nature and extent of those risks.
(2) An occupier shall not owe any duty pursuant to section 4(4) to a recreational user of the premises in respect of risks willingly accepted by the recreational user where the recreational user is capable of comprehending the nature and extent of those risks.
(3) A determination under subsection (1) or (2) that a visitor or recreational user has willingly accepted a risk may be based on the words or conduct of the visitor or recreational user without a requirement for evidence of communication or interaction with the occupier of the premises in question.
(4) Section 34 (1)(b) of the Civil Liability Act 1961 shall not apply in relation to the making of a determination under subsection (1) or (2) that a visitor or recreational user has willingly accepted a risk.”.
Data protection litigation
The Data Protection Act 2018 only allowed the Circuit and High Court to deal with data protection cases. Now, thanks to the Courts and Civil Law (Miscellaneous Provisions) Act 2023 such cases can be brought in the District Court.
Awards in these types of cases tend to be modest and well within the monetary jurisdiction of the District Court.
Check out The Courts and Civil Law (Miscellaneous Provisions) Act 2023.