Dáil Éireann Debate, Tuesday - 24 May 2022
13. Deputy Pearse Doherty asked the Minister for Justice the status of reforms to the duty of care through amendments to the Occupiers’ Liability Act 1995; and if she will make a statement on the matter. [26130/22]
Amharc ar fhreagraSmall business and community groups across the State continue to suffer from unaffordable insurance. The Action Plan for Insurance Reform committed that proposals to rebalance the duty of care would be brought to the Oireachtas by amending the Occupiers' Liability Act and the Civil Liability Act and that these measures would be brought before the Government by June 2021. That deadline was missed by quite a bit. On 17 May 2022, nearly a year later, the Minister proposed legislative change and published the scheme of these proposals. Will the Minister outline the proposals and the timeline for their implementation?
Insurance reform is a key priority for this Government and for me. It is reflected in the programme for Government, the Government’s Action Plan for Insurance Reform, and in my own justice plan for 2022. This is a whole-of-government effort.
My Department has responsibility or part responsibility for 34 of the 66 actions contained in the action plan, or approximately half. We have 26 that are now complete, including the introduction of the personal injuries guidelines, the enactment of the Criminal Justice (Perjury and Related Offences) Act 2021 and, significantly, the establishment of the Insurance Fraud Coordination Office, which was opened by An Garda Síochána last July. I would have liked to have brought forward the amendments to the Occupiers' Liability Act prior to 17 May, when the heads of the Bill were published, but that is not to say that a huge amount of work has not been done within my Department. I acknowledge the work done by officials.
Last week, I received Government approval to reform duty of care legislation. I propose to amend a number of sections of the Occupiers’ Liability Act, in line with the Government policy objective. I believe these proposals strike the right balance between ensuring that businesses, community groups and organisers of events fulfil their duty of care responsibilities, but making sure there was personal responsibility put back on individuals, customers and members of the public as well. The amendments contain four key developments: first, inserting into primary law a number of recent court decisions that rebalance the duty of care owed by occupiers to visitors and recreational users; second, 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 that should apply in any consideration of liability; third, limiting the circumstances in which a court can impose liability on the occupier of a premises where a person has entered onto a premises for the purpose of committing an offence, which is unfortunately something we have seen in recent years; and, fourth, 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. What is important here is that this applies to parents as well when they are bringing children into a playground or areas where there is a potential risk.
In terms of the timeframe, we brought forward the amendments and set out the heads of the Bill last week. The intention is that it would be part of the upcoming Court and Civil Law (Miscellaneous Provisions) Bill 2022, which I hope to publish this side of the summer.
I thank the Minister. Small businesses, community groups in her own constituency and, right across the State, voluntary organisations are priced out of the market because of the crisis in insurance reform. Unfortunately, reform is happening at a snail's pace. This key legislative change is being supported across the House. We have been calling for this for years. The campaigners have been calling for it for years. Finally when the Government agrees to do it, it misses its own deadline by a year.
We now have proposals before us. The first is to amend the Occupiers' Liability Act to take account of recent case law that rebalances responsibility between the occupier and the visitor, including taking into account the probability of an accident occurring, not just its occurrence, and the probable severity of an injury resulting from that occurrence. Another is to amend the Act by replacing reference to reasonable grounds or reasonable action with whether an occupier acted with reckless disregard to the person or property. Can the Minister clarify the class of persons to whom this will apply in respect of reckless disregard? Are we talking about visitors, customers or trespassers? What classes of persons will all of this apply to?
On the second point in respect of the second change in the standard, to clarify that where an occupier of the property has acted with reckless disregard for a visitor or customer, we are referring to the publican, shop owner or local council if it is a playground it owns. In a recent example given to me, a farmer is asked if a hunt can go across his or her land. The test previous to now had been of reasonable grounds, which left it very open for the occupier who perhaps had not done anything wrong or been reckless but an accident simply had happened and the onus was put back on him or her. The standard must be higher now so there must be a reckless disregard. If a hunt is going through a field and a farmer has given them permission but has left old machinery and spikes sticking up out of the ground, or there is a child using a playground where there is a piece of equipment that is not properly tied on or there is an accident, there is a reckless disregard there. This is to make sure that there is a threshold where one must show that somebody has been reckless and really disregarded a person's safety where they have given permission to be on the premises or on the land, site, building or other area.
A further proposal is to insert provisions regarding voluntary assumption of risks into the Occupiers' Liability Act. Its aim is to prevent plaintiffs from bringing claims where they have knowingly or willingly put themselves into a position that could lead to harm and injury to themselves. Under the Civil Liability Act 1961, for an occupier to be relieved of liability for this reason there must be a written agreement in place to evidence a voluntary assumption of risk. The purpose of this proposal, I understand, is to remove that requirement for a written agreement so that it is enough for an occupier to demonstrate by reference to words or conduct that the visitor voluntarily assumed risk.
Does the Minister accept that the success of this proposal, like many of the others she is making to rebalance the duty of care, will ultimately depend on how the courts interpret these provisions? Could she give us some guidance on her understanding of that? Could she give a definitive timeline for this legislation and its implementation, for which we have been waiting years?
On the last point, only this weekend the son of somebody I know fell off the very top of a slide and fractured his arm. It is not possible to sue somebody because it is an accident that happened at home. Given how the law is written, even if there is a sign up in a playground, a "Floor wet" sign in a shop or a sign that states "Enter at your own risk", it does not seem to matter in the courts. It does not seem to be something that can be used to show a warning was given. What we are talking about here is rebalancing to account for what is reasonable where something is broken or not put in place properly where there is a sign stating "You enter the playground at your own risk". However, where somebody has an accident in the same way that one could happen at home, there has to be an assumption that he or she has taken a risk at a certain level. If a person, through due diligence, puts up a sign to make the information clear, the law, as currently written, does not take it into account. I acknowledge that people have been waiting for what has been proposed. We are working closely with the insurance alliance group and others to make sure we get this right because it applies not only to businesses but also to community groups. I hope to introduce the measure as part of the miscellaneous provisions Bill before the summer. Depending on the Oireachtas, we hope to have it implemented as soon as possible thereafter.
