James Browne (Wexford, Fianna Fail) | Oireachtas source

One issue that sometimes arises with insurance is that the law is considered to be somewhat complex in this area, so we are attempting to rebalance the current law in order that the occupiers face a decreased risk of liability with regard to those coming onto their property in whatever circumstances they may be. We have sought to do that by lessening the liability but also by bringing clarity to the legislation following a number of court cases on the matter. We are seeking to do this through rebalancing the duty of care owed by occupiers to visitors and recreational users.

We are talking here mostly about farmland and rural land where people may be going onto the land. It may be a visitor, recreational user or trespasser, and those different categories remain there but we have sought to clarify the type of liability and the circumstances where someone might face liability. What we have sought to do is reflect the common-sense view that the conduct of a high social utility should be assessed less onerously than the conduct of a low social utility. An example would be a recreational user going onto land where the farmer might have facilitated recreational users through a pathway or gateways. In this scenario, the farmer would not face increased liability as a result of facilitating recreational users.

We also aim to tighten the law around situations where people may be going onto a premises with the intention of committing an offence. We sought to limit the circumstances in which a court can impose liability in those circumstances. The amendment provides that it shall be an exceptional circumstance where a court may determine that the occupier shall be liable for a breach of duty not to act with reckless disregard for the person in those circumstances. Obviously, it is up to the courts how they interpret and apply the law, but we are strongly of the view that what we have done here is sufficient to protect the occupier of the property while at the same time, ensuring there is no unfair risk to those coming onto the property depending on the different category under which they come onto the land.

Regarding supermarkets, based on my own experience as a barrister, most people would take a personal injury action not to do with the natural state of the land but more to do with slips and falls. While the Occupiers' Liability Act may sometimes be referenced in a court case, people tend to succeed in those cases under negligence principles.