The matter raised by the Deputy generally arises in relation to section 3 of the Occupiers’ Liability Act 1995 which provides that an occupier of a premises owes a duty (“the common duty of care”) towards a visitor. Under the terms of that section, the common duty of care means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.
The issue of occupiers’ liability was considered by the Cost of Insurance Working Group as reflected in Chapter 6 of its Report on the Cost of Employer and Public Liability Insurance published in 2018. The Report notes that the Occupiers’ Liability Act 1995 draws a distinction between three categories of entrants, namely visitors, recreational users and trespassers. Visitors are owed the greatest duty of care. Visitors were the most relevant category of entrants for the purposes of the Working Group's Report as those present in a business premises tend to be customers of the occupier or to be other persons present at the occupier’s invitation or by virtue of a contract.
The Report notes that the Working Group, in considering this matter, reviewed relevant case law and found that there are many examples of cases which are dismissed on liability grounds as no evidence of negligence is put forward to substantiate the claim. Accordingly, the Working Group, whose Legal Sub-Group also considered these matters, decided that it could not make a recommendation on the issue. At the same time, the Working Group considered that the insurance industry needs to give greater recognition to improvements made in health and safety practice by businesses by way of lower premiums where warranted.
The duty of care imposed by section 3 of the Occupiers’ Liability Act is also a matter for the courts and was, for example, recently considered by the Court of Appeal (Byrne v Ardenheath Company Ltd.) The Court of Appeal highlighted the need for the courts to bring ordinary common sense to bear on their assessment of what should amount to reasonable care and outlined various factors which may be considered by a trial judge when analysing whether an occupier may be said to have complied with his or her obligation to provide reasonable care for a visitor to its premises, including the probability of an accident occurring, the likely gravity of the injury that might result or the cost of eliminating the risk.
The court stated that section 3(2) of the Occupiers Liability Act makes clear that the occupier is entitled, when deciding what steps it should take to comply with its obligation, to assume that its visitors will take all reasonable care for their own safety and the occupier is entitled to take into account that an adult normally can look after his or her welfare.
Clearly, these are matters that deserve, and are being given, careful consideration and expression by way of balancing those rights conferred by law and protected under the Constitution, including as appropriate to the interests of the parties concerned and any duty of care that may arise. As such, they have been given detailed and balanced consideration by the Cost of Insurance Working Group and its Legal Sub-Group. They are also matters that are, as I have outlined, being taken into independent consideration by the judiciary in relevant proceedings before the courts.
In addition, a range of actions are now being taken by the Government on foot of the work of the Cost of Insurance Working Group to more effectively prevent and penalise insurance fraud so as to provide additional protections for those who may owe a duty of care under the terms of the Occupiers Liability Act 1995. There are no proposals, therefore, being considered by the Government at present to change the existing legislation in this area.