Key Changes Introduced By the Courts and Civil Law (Miscellaneous Provisions) Act 2023

The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (No. 18 of 2023) has been signed into law. The Act will affect a diverse range of areas of law. Our Insurance and Risk team focus on three of the key changes introduced which impact occupiers liability claims, data protection claims and catastrophic injury claims in Ireland.

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.

Key takeaways

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.

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