Occupiers Liability - Case Law Update

Introduction

The recent decision of Coffey J in Scanlan v McDonnell T/A The Woodlands Caravan & Camping Park [2024] IEHC 324, provides helpful clarification as to what amounts to a “danger” under the Occupiers Liability Act 1995.

Changes to the Occupiers Liability Act 1995 have come into force since the enactment of the Courts & Civil Law (miscellaneous provisions) Act 2023 on 31 July 2023. The Press Release announcing the changes “Minister McEntee commences reformed Duty of Care legislation as key element of insurance reform” set out that one of its core key developments was to reflect in primary legislation a number of recent court decisions which rebalance the duty of care owed by occupiers to visitors and recreational users. Minister McEntee commented that the update to the legislation strike the right balance between ensuring businesses, community groups and organisers of events fulfil their duty of care responsibilities while acknowledging the importance of personal responsibility of visitors, recreational users and trespassers.

While the amendment to the Occupiers Liability Act 1995 codified principles established in previous Court of Appeal decisions, the recent High Court decision provides clarification as to what amounts to a “usual” and “unusual” danger.

The Legislation

Section 3 of the Occupiers Liability Act 1995 sets out that an occupier of a premises owes a common duty of care towards a visitor. Section 3(2) of the Act sets out that a common duty of care is a duty to take such care as is reasonable in all the circumstances to ensure a visitor does not suffer an injury by reason of a danger on the premises. It also sets out regard should be had to the care which a visitor may reasonably be expected to take for his or her own safety.

The 2023 amendments to the Section 3 of the 1995 Act set out regard must be had to a number of factors in determining a duty of care to visitors including the probability of a danger, probability of occurrence of an injury, the severity of injury, the cost of protective measures and the social utility of the conduct giving rise to the injury.

Danger has been defined under the Occupiers Liability Act 1995 as a danger due to the state of the premises.

Caselaw

In order to establish liability under the Occupiers Liability Act 1995, a Plaintiff must establish there was a danger by reason of the condition of the premises, as a result of the danger they suffered injury and the occupier did not take such care as was reasonable in the circumstances to avoid it occurring[1].

In establishing if there was a “danger” the decision of Lavin v Dublin Airport Authority plc [2016] IECA 268 helpfully distinguishes between a “usual” and “unusual” danger. Peart J. referred to a staircase being a “usual” danger. By reason of the nature of a staircase there was a risk of injury descending it without there being a defect, but it was a danger an adult could take care to avoid by using a handrail or ensuring they did not lose balance. However, if the handrail was not secured or gave way when it was used it would amount to an “unusual” danger which an occupier had to guard or warn against, otherwise an occupier would be liable for injuries that arise.

In White v Doherty [2019] IECA 295 the Plaintiff fell while proceeding across a general area of a commercial Caravan Park due to loose or embedded stones. No evidence was submitted that the ground consisted of an “unusual” danger over and above the type of surface expected in a caravan park. There was an unevenness expected as the surface was in keeping with the naturalistic settings. The Court held that every individual using the caravan park were expected to take care as regards tripping hazards due to loose or embedded stones on the surface.

The decisions therefore highlight the difference between “usual” and “unusual” dangers and where “usual” dangers can be avoided by taking care on the part of the visitor to the premises there is no breach of the common duty of care.

Recent decision

The recent decision of Coffey J. in Scanlan v McDonnell T/A The Woodlands Caravan & Camping Park [2024] IEHC 324 gives further clarification as to what amounts to a “usual” danger under the Act. The Plaintiff, a regular visitor to the Defendants Caravan Park, was assigned a larger pitch for her caravan and as a result the orange cable from her caravan did not reach the services post provided. A black extension was provided by the Defendant. The Plaintiff was using the services post to fill water into her kettle and after doing so when returning to her caravan she tripped on the cable. It was accepted that there was nothing unusual about water and electricity being provided on the same services post, but the Plaintiff’s engineer criticised the power cable being an excessive distance between the caravan and services post making it a trip hazard.

Coffey J. in his decision confirmed that a cable on the ground was a tripping hazard that could not be eliminated. The service post was a typical and inevitable feature of the Caravan Park and objectively when a person was using the services post they would anticipate the presence of the cable hanging down and on the ground. Coffey J. held that the presence of the cable, either hanging down from the services post or on the ground, was not an “unusual” danger. The cable could have been avoided by the Plaintiff taking care for her own safety as would be expected under Section 3(2) of the Act and stepping over the cable. The Plaintiff was aware of the presence of the cable and therefore should have taken care when engaging with the services post.

Conclusion

The recent High Court decision confirms the position that no liability arises to occupiers under Section 3 of the Occupiers Liability Act 1995 when the risk of injury constitutes a “usual” danger and the risk of injury created can be avoided by the visitor taking care which they may reasonably be expected to take for their own safety.

[1] Allen v Trabolgan Holiday Centre [2010] IEHC 129