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What Is The Duty Of Care Any Why Does It Need To Be Rebalanced?

What Is The Duty Of Care Any Why Does It Need To Be Rebalanced?

The Alliance wants the duty of care to be rebalanced in a manner that is fair, reasonable, practical, and proportionate and in the public interest. What’s that about?

There is plenty of work going on in the background on insurance reform, even if nothing that has happened so far has applied any downward pressure on insurance costs. 

However there is one remaining underlying condition in the personal injuries system that continues to support unsustainable awards – the duty of care as it applies to Irish policyholders. 

In essence, ‘occupiers’ (homeowners, SMEs, charities, sports organisations, event organisers) are now regularly assumed to have an absolute duty of care when it comes to ‘visitors’ (customers, clients and others), while the concept of personal responsibility has been significantly diminished.

The Duty of Care as it applies to most occupiers is laid out in the Occupiers’ Liability Act, 1995

Section 3(2) of the Act states that:

 “the common duty of care” means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor’s activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”

While the legal position as outlined in Section 3(2) appears straightforward, the reality is very different. A balanced reading of this section suggests that there is an equal onus on the claimant and the respondent towards their respective duty of care.  In reality, the experience of Alliance members across multiple commercial and voluntary sectors and a review of publicly available judgements suggest that respondents are often “guilty until proven innocent” in the interpretations of some judges and insurers as suggested in this letter to the editor:

For insurance court cases, in this country, it appears that the defendants are guilty until proven innocent. We the public pay the costs in our premiums. – Letter to the Irish Times

The corollary of this is that the public has been infantilised. There is often no expectation that grown adults will take responsibility for their own welfare or actions. Rather it is expected that they must be protected from themselves by policyholders. 

Examples that illustrate this imbalance include the following: 

 

The issues outlined above are magnified when it comes to children, where common sense and the role and responsibility of parents and guardians are often ignored. For example:  

 

Even where CCTV footage exists, the current balance of duty of care often means policyholders remain extremely vulnerable. Indeed many of our members commented that the TD in the SwingGate scandal “would have got something” if her case had proceeded as is usual, rather than being publicised in advance of its conclusion. 

All of this is in the context of Ireland becoming a very safe place to live. For example, we are now the fourth safest country in Europe in terms of work injuries (HSA non-fatal injury and illness statistics. Rate of 4+ days injuries per 100,000 workers, 2015).   

It is acknowledged that not all decisions are so imbalanced. There are examples of a balanced interpretation of the legislation such as:

Woman who fell on way to toilet block in caravan park loses appeal over failed damages action

However these appear less common and do not add any consistency or certainty to the legal process.

The direct result of this imbalance is the imposition of a duty of care on occupiers that insurers will not risk challenging in court, even in the most flimsy of cases. If certain judges are presiding they prefer to settle. As a result, only 5% of personal injury claims make it to court with 74% settled privately between insurers and lawyers. While such a settlement strategy minimises costs in individual cases, it leaves policyholders with the bill and a huge sense of injustice; and by facilitating easy settlements without court appearances, it has in turn fuelled claims volumes and ultimately contributed to unsustainable insurance costs.

This situation must be addressed through a mix of amended legislation, the effective use of disclaimers and an acceptance by the judiciary, insurers and the general public of their role in addressing the unfairness of the current situation. 

NOTE: If you want references for any of the data we have used in this blog, please contact us at contact@insurancereform.ie

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