The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (the Act) has been signed into law by the President, Michael D Higgins. This long-awaited wide sweeping piece of legislation aims to reform a diverse range of areas of law. We focus on three of the key amendments that will affect the insurance industry and their management of claims.
An overhaul of the duty of care owed by Occcupiers
Undoubtedly the key measure introduced by the Act in keeping with the Government’s recent insurance reform mandate, is the overhaul of Occupier’s Liability Act 1995. The 1995 Act has been amended as follows:
Duty of care to visitors (s.3 amendments)
An occupier must take such care as is reasonable in all the circumstances not to injure a visitor. The Act now requires a court to consider 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.
This amendment is an acknowledgment that imposing a duty of care on occupiers to remove all risks from a premises is impractical.
Duty of care owed to recreational users or trespassers (s.4 amendments)
The duty of care owed to recreational users or trespassers is not to intentionally or recklessly injure them. However, it was thought that the duty of care owed was watered down by references to whether an occupier had ‘reasonable grounds’ for believing a hazard was on the premises. This reasonableness consideration has been removed by this amendment.
Voluntary assumption of risk by the entrant (s.34)
Previously, a written agreement was needed to limit or relieve an occupier from liability. A court can now look at whether an entrant has accepted a risk based on words or conduct, without the need for any overt interaction with the occupier of the premises.
A new choice of venue for data protection litigation
The Courts and Civil Law (Miscellaneous Provisions) Act 2023 provides for these types of claims to be brought in the District Court as well as the Circuit and High Courts. This remedies a situation which was proving very costly for defendants.
The average compensation in the EU for data breach claims is very modest and well within the district court level. However, the Data Protection Act 2018 granted jurisdiction to the Circuit Court and High Court only. This resulted in costs of these claims far eclipsing their value.
This new provision should mean these types of claims will now more properly be brought in the District Court and the costs on insurers and self-insured defendants will be reduced.
A new Indexation mechanism for Periodic Payment Orders
Indexation of periodic payment orders will no longer be fixed solely on the Consumer Price Index (CPI). Instead, the indexation rate will be set by ministerial regulations based on a broad range of more flexible factors.
It is hoped that this will encourage an uptake on periodic payment orders as a viable compensation mechanism in catastrophic injury claims.
At face value, the amendments to the Occupiers Liability Act do what they set out to do. They rebalance the duty of care owed by occupiers to entrants. The amendments reflect a number of recent decisions in the High Court and so there is unlikely to be any real period of upheaval as the new regime is implemented.
The amendment to the Data Protection Act will be a relief to insurers, policy holders and self-insured entities who have, until now, faced mounting costs in defending these types of claims.
The change to the indexation of periodic payment orders is to be welcomed. However, it is likely that the Minister will have regard to the CPI and as such, we will have to wait and see what real affect this amendment has on uptake of this form of compensation.
For more information regarding the impact of this new legislation, contact a member of our Insurance & Risk team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
People Also Ask
What are the two main practical take aways from the amendments to the Occupiers Liability Act?
The intention of the Act is to rebalance liability towards personal responsibility of visitors, recreational users, and trespassers. The amendments leave no doubt that there is no obligation on occupiers to remove all risks from their premises. The assessment of the duty of care owed requires consideration of probability, practicability, and the cost of removing hazards. The circumstances in which an entrant will be held to have voluntarily assumed the risk of entry will increase.
What decisions were the changes to the duty of care based on?
The changes to the duty of care of an occupier were based on the decisions of Byrne v Ardenheath Company Limited , Wall v National Parks and Wildlife Service  and Mulcahy v Cork County Council . In these cases, the court took a pragmatic view and focused on the care taken by the plaintiff for their own safety and the costs and burden on an occupier of eliminating the risk which caused the injury.
What effect will the introduction of District Court jurisdiction have on data protection claims?
The main practical change is a reduction in the costs of these claims. District Court costs are based on a scale and as such are more predictable and more modest than Circuit Court or High court costs. This in turn, may also lead to a reduction in data protection claims.
What will the Minister take into account when making regulations for indexation of periodic payment orders?
Part IVB of the Civil Liability 1961 Act, as amended, deals with the award of damages by periodic payments. The key amendment to this Act the removal of the fixed indexation by reference to the harmonized index of consumer prices as published by the Central Statistics Office (CPI). Instead, periodic payment orders will be indexed by reference to a “periodic payments index” which is to be set by Ministerial regulations. When making the regulations the Minister must have regard to (a) the relevance of the goods and services on which an index is based, to the loss or expenditure, including cost of care and medical expenses, (b) the body calculating the index, (c) whether or not the index is accessible at the same time or times each year, and (d) the reliability of the index over time.
The index is crucial to whether there will be an uptake in this form of compensation. Indexation based on CPI has long been criticised as being unsuitable, leading to a reluctance from courts to apply it or parties to seek periodic payment orders. The true impact of this amendment will only be seen when the regulations are enacted.