Law Changes To Reduce Landowners Duty Of Care To Trespassers

New legislation has made certain obligations placed on occupiers of property less onerous.

It will be welcomed by landowners worried about trespassers, especially after farm organisations recently warned of gangs trespassing on their lands, stealing equipment and intimidating and assaulting farmers.

The Courts and Civil Law (Miscellaneous Provisions) Act 2023 recently incorporated superior court decisions such as Wall v National Parks and Wildlife Service in 2017, and Mulcahy v Cork County Council in 2020.

As a result, the duty of care owed to visitors has lessened, such that courts must now be cognisant of the likelihood of an accident occurring, the severity of the possible injury, the cost and practicality of removing the risk, as well as the social utility of the activity in question.

Also, an occupier will now be considered to have acted with reckless disregard for recreational users and trespassers only where an occupier had knowledge of the danger, or was reckless as to its existence.

Previously, either knowledge of a danger – or reasonable grounds of such knowledge – was sufficient to impose liability on occupiers.

The new legislation also ensures that a trespasser who commits an offence on a premises (or intends to do so) will not succeed with a claim for a breach of duty, except where the interest of justice requires so.

The court will also consider the nature of the offence and degree of recklessness on the occupier’s part.

Following the new legislation, a duty of care is no longer owed to visitors or recreational users who are deemed to have voluntarily assumed the risk, such that they have consented to and understand it. This removes the need for a written agreement between the parties.

A primary focus of the new legislation was to reduce insurance costs for businesses and landowners. The Act is also designed to make it simpler for occupiers to limit their liability, because it was felt that the duties under the 1995 Act were too onerous, leading to increased compensation claims.

Its provisions were enacted on July 31. The Act is one of 66 actions in the Government’s action plan for insurance reform, to bring down insurance costs for consumers and businesses, introduce more competition into the insurance market, prevent fraud, and reduce the burden on business, community and voluntary organisations.

At issue is the “common duty of care”, whereby an occupier must take such care as is reasonable in all the circumstances not to injure a visitor.

Section 40 of the 2023 Act now requires a court to consider the following criteria when deciding if the occupier has a liability:

• The probability of an accident occurring;
• The severity of the injury which might occur;
• The cost and practicability of eliminating the risk; and 
• The social utility of the activity which gave rise to the risk of injury.

On reckless disregard, the duty of care now owed to recreational users or trespassers under the 2023 Act is not to intentionally or recklessly injure them. This is a higher standard of care than under the old provision (when ‘reasonable grounds’ for believing a hazard was on the premises determined duty of care) and provides occupiers with more protection.

A written agreement needed to limit or relieve an occupier from liability was another area that affected occupiers. Now this has been amended, to allow a court to consider whether an entrant has accepted a risk based on their words or conduct, without the need for any overt interaction from the occupier of the premises. In other words, an occupier will not be found liable where a visitor or recreational user has willingly accepted a risk when entering onto their premises.

It remains to be seen how the courts will interpret the new act. It does not change an occupier’s obligation under the law of negligence, but it can strengthen defences against claims by visitors.

(Source – Irish Examiner – Farming – Stephen Cadogan – 05/09/2023)