What the Courts and Civil Law Act 2023 Does

The Act is the statute that rebalanced premises liability in Ireland. The Courts and Civil Law (Miscellaneous Provisions) Act 2023 (No. 18 of 2023) is a wide omnibus statute, but for anyone concerned with understanding injury law its significance lies in two Parts. Part 6 made the most substantial amendments to the Occupiers' Liability Act 1995 since that Act was passed, changing the duty of care owed by occupiers of premises to the people who enter them. Part 3 changed how periodic payment orders in catastrophic injury cases are index-linked under the Civil Liability Act 1961.

The occupiers' liability amendments did two distinct things, and it helps to keep them separate. First, they codified: the proportionality reasoning that the Court of Appeal and High Court had been applying since 2016 now appears in the statute itself, as a five-factor test. Second, they revived a defence: voluntary assumption of risk, long neutered in Irish law by the Civil Liability Act 1961, returned as a complete answer to a personal injury claim arising on premises, in the form of a new section 5A. Anyone assessing how a personal injury claim under the 1995 Act is now decided starts with these amendments.

The rest of the Act ranges across courts, juries, bankruptcy, immigration, legal services regulation and data protection. Those provisions sit outside this page's focus, although the ones that touch civil litigation are noted below.

The 2023 Amendments to the Occupiers' Liability Act 1995

Three amending sections rewrote the 1995 Act's operative core. Sections 40, 41 and 42 of the 2023 Act amended sections 3 and 4 of the Occupiers' Liability Act 1995 and inserted a new section 5A. Every change commenced on 31 July 2023, and together they are the changes usually searched for as the Occupiers Liability Act amendment 2023. The table below maps each amending provision to the exact text it changed, taken from the Law Reform Commission's revised consolidation of the 1995 Act.

Attributions verified against the Law Reform Commission revised text of the 1995 Act and S.I. No. 389 of 2023. Section 39 of the 2023 Act is the definitional provision for Part 6.

Section 40: The Five-Factor Test for the Duty Owed to Visitors

Courts must now weigh five named factors when judging an occupier's duty to a visitor. Section 40 of the 2023 Act inserted subsection (1A) into section 3 of the 1995 Act. Section 3 has always required an occupier to take such care as is reasonable in all the circumstances to ensure a visitor is not injured by a danger on the premises. What the amendment adds is a mandatory, non-exhaustive checklist of what "reasonable in all the circumstances" involves. The new subsection reads:

"Without prejudice to the generality of subsection (2), in determining the extent of the common duty of care of an occupier towards a visitor, and whether it has been complied with by the occupier, regard shall be had, as appropriate, to all of the circumstances and matters referred to in that subsection, which shall include but are not limited to the following: (a) the probability of a danger existing on the premises; (b) the probability of the occurrence of an injury to, or of damage suffered by, a visitor by reason of a danger existing on the premises; (c) the probable severity of an injury to a visitor that might result from a danger existing on the premises; (d) the practicability, and the cost, of precautions or preventative measures; (e) where applicable, the social utility of the activity or conduct that gives rise to the risk of injury or damage referred to in paragraph (b)."

Section 3(1A) of the Occupiers' Liability Act 1995, inserted by section 40(a) of the Courts and Civil Law (Miscellaneous Provisions) Act 2023

The factors are not new inventions. They are the balancing exercise that Irish appellate courts had already been applying, now given statutory force so that every court must apply it in every visitor case. The probability, severity and cost factors trace directly to the Court of Appeal's reasoning in Byrne v Ardenheath; the social utility factor reflects the line of authority on natural amenities and open land discussed below. The practical effect is that a court cannot find a breach of the common duty of care by looking at the danger alone. It must ask how likely the danger and the injury were, how serious an injury would probably have been, what prevention would have cost, and whether the activity creating the risk carried social value.

Section 41: Recreational Users, Trespassers and the Raised Recklessness Threshold

The occupier's state of mind now matters more than what they should have known. Section 41 of the 2023 Act reworked section 4 of the 1995 Act, the provision governing the lower duty owed to recreational users and trespassers: not to injure them intentionally, and not to act with reckless disregard for them. Four changes stand out.

The first raises the threshold for reckless disregard. Before the amendment, the factors in section 4(2) asked whether the occupier knew, or had reasonable grounds for believing, that a danger existed, that the person was on the premises, and that they were in the vicinity of the danger. The amended paragraphs (a) to (c) each now ask whether the occupier "knew of, or was reckless as to whether," those matters existed. The constructive-knowledge limb is gone. An occupier is no longer fixed with reckless disregard on the basis of what a reasonable occupier in their position would have appreciated; the enquiry turns on actual knowledge or actual recklessness.

The second is a deletion. The former section 4(2)(d) asked whether the danger was one against which, in all the circumstances, the occupier might reasonably be expected to provide protection. That factor no longer appears in the section.

The third concerns entrants who come to commit crime. Under section 4(3) as originally enacted, a person who entered premises to commit an offence, or committed one while there, could still recover where a court considered it warranted in the interests of justice. Section 41(b) replaced that test: liability now arises only where the court so determines "in exceptional circumstances", having regard to matters such as the nature of the offence, the extent of the occupier's recklessness, or the fact that the person was not a trespasser. However described, the new wording sets a higher bar than the old one.

The fourth extends the five-factor logic to structures. Where a structure on premises is provided primarily for recreational users, section 4(4) obliges the occupier to take reasonable care to maintain it in a safe condition. The new section 4(5), inserted by section 41(d), applies the same five factors as section 3(1A) to that duty, and section 4(4) itself is now subject to the section 5A defence.

Section 42: Voluntary Assumption of Risk under the New Section 5A

Section 5A makes willing acceptance of a risk a complete defence, provable by conduct alone. Section 42 of the 2023 Act inserted section 5A into the 1995 Act. It is the reform with the deepest doctrinal roots, because it partially unwinds a rule that had stood since 1961. The full text:

"(1) The common duty of care under section 3 shall not impose on an occupier any obligation to a visitor in respect of risks willingly accepted by the visitor where that visitor is capable of comprehending the nature and extent of those risks. (2) An occupier shall not owe any duty pursuant to section 4(4) to a recreational user of the premises in respect of risks willingly accepted by the recreational user where the recreational user is capable of comprehending the nature and extent of those risks. (3) A determination under subsection (1) or (2) that a visitor or recreational user has willingly accepted a risk may be based on the words or conduct of the visitor or recreational user without a requirement for evidence of communication or interaction with the occupier of the premises in question. (4) Section 34(1)(b) of the Civil Liability Act 1961 shall not apply in relation to the making of a determination under subsection (1) or (2) that a visitor or recreational user has willingly accepted a risk."

Section 5A of the Occupiers' Liability Act 1995, inserted by section 42 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023

Three features of the section deserve attention. Subsections (1) and (2) state the defence: no obligation is owed for risks willingly accepted, provided the entrant was capable of comprehending their nature and extent. The capability condition matters, because it leaves open the position of children and others who cannot appreciate a given risk. Subsection (3) removes the old evidential obstacle: acceptance can be found from the entrant's own words or conduct, with no need to prove any communication or agreement with the occupier. Irish practice had long treated waivers and signage sceptically for exactly that reason.

Subsection (4) is the provision that changes the doctrine. Section 34(1)(b) of the Civil Liability Act 1961 had confined the common law defence of volenti non fit injuria to cases of contract or express waiver, channelling everything else into apportionment as contributory negligence. By disapplying that paragraph for section 5A determinations, the Oireachtas restored an all-or-nothing outcome in occupiers' cases: where the defence succeeds, the occupier owes no duty for that risk at all, rather than the award being reduced by a percentage. The interaction is examined further below.

In sequence, a section 5A defence operates in four steps:

1. A danger on the premises, in the 1995 Act's sense, is identified as the source of the risk.
2. The occupier points to the entrant's words or conduct as showing the risk was willingly accepted; section 5A(3) requires no communication or written agreement.
3. The court asks whether the entrant was capable of comprehending the nature and extent of that risk, as sections 5A(1) and 5A(2) require.
4. Where each element is made out, no duty is owed for that risk, and section 5A(4) means apportionment under section 34(1)(b) of the Civil Liability Act 1961 does not arise.

Key Terms in the 2023 Reforms

Five phrases carry most of the reform's legal weight. Each definition below states the term as it operates in the amended Occupiers' Liability Act 1995.

Social utility

The value to society of the activity or conduct creating a risk. Section 3(1A)(e) makes it a factor Irish courts weigh, where applicable, when judging an occupier's duty to visitors.

Reckless disregard

The section 4 standard owed to recreational users and trespassers. Since the 2023 amendment it turns on what the occupier actually knew or was reckless about, not on what they had reasonable grounds to believe.

Voluntary assumption of risk

The section 5A defence inserted in 2023: an occupier owes no duty for a risk an entrant willingly accepted while capable of comprehending its nature and extent.

Willingly accepted

The acceptance standard within section 5A. Since 31 July 2023 it can be established from the entrant's words or conduct alone, with no communication or agreement with the occupier required.

Exceptional circumstances

The section 4(3) threshold, substituted in 2023, that must be met before a person who entered premises to commit an offence can recover from the occupier.

Which Accidents Do the 2023 Reforms Apply To?

The occupiers' liability amendments took effect on 31 July 2023 and operate prospectively. The Minister for Justice commenced Part 6 by article 3 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023 (Commencement) Order 2023, S.I. No. 389 of 2023, less than four weeks after the President signed the Act on 5 July 2023. Practitioner commentary is consistent that claims and proceedings already in being were unaffected and continue to be decided under the pre-amendment text, and that the amendments do not act retrospectively. Part 6 contains no express transitional provision that alters that ordinary position.

The transition remains visible in the case lists. Premises accidents that occurred before 31 July 2023 were still working their way through the High Court years later: Duddy v Allingham Arms Hotel [2025] IEHC 68, decided on 4 February 2025, concerned a fall on a hotel dancefloor in February 2017, an accident governed by the law as it stood before the reforms. For several years yet, the version of the 1995 Act that applies to a given case will depend on when the accident happened, and pleadings need to identify the correct text.

The 2023 Reforms in Practice

Early judicial treatment shows continuity as much as change. The first significant High Court decision engaging the amended framework was Scanlan v McDonnell (t/a The Woodlands Caravan & Camping Park) [2024] IEHC 324, delivered by Coffey J on 4 June 2024. A regular visitor to a caravan park tripped on a power cable running between her caravan and a services post. The High Court dismissed the claim, holding that a standard cable of that kind was a usual feature of the premises rather than a danger the occupier had to eliminate, and that a visitor could reasonably be expected to look out for it. The decision confirms that the concepts courts applied before the amendments, in particular the entrant's own responsibility for obvious features, carry through into the codified test.

The 2026 High Court decision in Yates v Dublin Bouldering Gym Ltd & Anor [2026] IEHC 181 (Coffey J) dismissed a claim by a novice climber injured falling from an indoor bouldering wall, holding that her injury resulted from an inherent and obvious risk of the activity that a facility operator is under no general duty to train or supervise a competent adult against. It is important to note that the accident occurred on 2 February 2018, so section 5A of the 1995 Act (in force only from 31 July 2023) did not apply, and the reported analysis turned on the common-law scope of the duty of care rather than on section 5A.

Stated neutrally, the reforms make some categories of claim harder to bring than they were before 31 July 2023. A person injured by an obvious feature they were capable of appreciating faces the section 5A defence in a form it never previously took; a recreational user must now engage with what the occupier actually knew rather than what it ought to have known; and every visitor case is filtered through the five factors, including the cost of precautions and the social utility of the activity.

None of that means premises claims are gone. The common duty of care to visitors remains, an occupier who knows of a danger and does nothing still faces liability, and the capability condition in section 5A preserves the position of children and others who cannot comprehend a risk. Claims under the amended Act continue to be notified to the Injuries Resolution Board (IRB) in the ordinary way before any court proceedings issue.

What Questions Do the 2023 Reforms Leave Unresolved?

The 2023 amendments settle the framework but leave their edges to the courts. Understanding where the reforms run out is part of understanding how compensation for injury in Ireland is now assessed when an accident happens on premises. Four open questions stand out. First, capability: section 5A protects only against risks the entrant could comprehend, and the section gives no age threshold or test, so the treatment of children and vulnerable adults will be worked out case by case. Second, "exceptional circumstances" in section 4(3) is undefined; how narrowly courts read it will determine whether the criminal-entrant bar is close to absolute.

Third, the five factors codify appellate reasoning, and it remains to be seen whether they change outcomes or largely confirm the practice the courts had already adopted. Fourth, on the periodic payments side of the Act, the practical effect depends on ministerial regulations specifying the new index. These open edges are where the supplementary material below, on the Act's origins, the codified case law and its statutory interactions, becomes relevant.

Why the Act Was Introduced: The Insurance Reform Context

Part 6 delivered a headline action of the Government's insurance reform programme. The Action Plan for Insurance Reform, launched in December 2020, set out a programme of measures aimed at lowering insurance costs for consumers, businesses, community groups and voluntary organisations, increasing competition in the Irish insurance market, and addressing the claims environment; rebalancing the duty of care was among its most prominent commitments. The occupiers' liability amendments were carried in the Courts and Civil Law (Miscellaneous Provisions) Bill, published as Bill 84 of 2022, with the duty of care provisions reported as having been introduced by Government amendment during the Bill's passage.

Ministerial statements framed the purpose consistently. In late June 2023 the Minister of State with responsibility for insurance said the changes would bring Ireland's claims environment and culture of personal responsibility closer to those of other EU member states. On commencement, the Department of Justice announced that the legislation reflected in primary law a number of recent court decisions rebalancing the duty of care owed by occupiers, while acknowledging the personal responsibility of visitors and recreational users. The Bill completed its passage through both Houses of the Oireachtas (passed by both Houses 28 June 2023) and was sent to the President on 3 July 2023; it was signed on 5 July 2023 and Part 6 commenced on 31 July 2023.

The Case Law the 2023 Reforms Put on a Statutory Footing

A short line of decisions from 2016 to 2020 supplied the reasoning the Act codified. The Department of Justice said as much when commencing Part 6: the amendments reflect recent court decisions in primary legislation. Four strands of authority matter most for understanding where sections 3(1A), 4 and 5A came from. Fuller treatment of each case lives on the Occupiers' Liability Act 1995 page; the capsules below explain what each contributed to the 2023 text.

The High Court's decision in Mulcahy v Cork County Council [2020] IEHC 547, concerning a child injured jumping between boulders in a public amenity area, added the social cost of stripping natural features out of public spaces to the same line of reasoning. Behind all of these stands the Supreme Court's decision in Weir-Rodgers v The SF Trust Ltd [2005] IESC 2, which had already set a demanding reckless disregard standard for recreational-user claims; the section 41 amendments push the statutory text further in the same direction by removing the constructive-knowledge limb entirely.

How the 2023 Act Interacts with Other Legislation

The 2023 Act's most important interaction is the one it switches off. Section 34(1)(b) of the Civil Liability Act 1961 preserved contract and waiver defences but otherwise directed that conduct amounting to voluntary assumption of risk be treated through apportionment: the claimant's award reduced for contributory negligence rather than the claim failing outright. That rule is why the common law volenti defence played so small a role in Irish personal injury litigation for six decades. Section 5A(4) disapplies section 34(1)(b) for determinations under section 5A, so that in occupiers' cases, and only in occupiers' cases, willing acceptance of a comprehended risk once again defeats the duty entirely. Outside the 1995 Act, section 34 and the apportionment framework continue to operate as before.

The 2023 Act also reaches into catastrophic injury litigation. Part 3 amends the periodic payment order provisions that the Civil Liability (Amendment) Act 2017 inserted into the Civil Liability Act 1961, replacing indexation tied to the harmonised index of consumer prices with a "periodic payments index" to be specified by ministerial regulations, which may reflect matters such as wage inflation in the cost of care. The change responds to a known weakness of the 2017 periodic payments regime: care costs outpace consumer price inflation, which made periodic payment orders unattractive in practice. Whether the new index revives their use depends on the regulations.

Two further Parts touch civil practice more lightly. The Act gives the District Court concurrent jurisdiction in data protection actions that previously had to be brought in the Circuit Court or High Court, and it makes discrete changes to funds of suitors under the Civil Liability and Courts Act 2004 and to the Judicial Council Act 2019. Separately, an amendment to the definition of "recreational user" in section 1 of the 1995 Act was made by the Heritage Act 2023 but had not been commenced at the Law Reform Commission's last revision; that provision belongs to the 1995 Act's own story and is tracked on the Occupiers' Liability Act 1995 page.

What the 2023 Act Did Not Change

The reforms are targeted amendments, not a rewrite of Irish premises liability. Knowing the boundary of the changes matters as much as knowing their content. Section 5 of the 1995 Act, governing how an occupier may extend, restrict, modify or exclude the duties by agreement or notice, was left untouched, and section 5(5) still provides that a warning does not by itself absolve the occupier unless it enabled the visitor to avoid the injury. The definitions in section 1, including the three entrant categories, were not amended by this Act; the separate definition change made by the Heritage Act 2023 had not been commenced at the Law Reform Commission's last revision. Sections 6, 7 and 8, on strangers to contracts, independent contractors and the general saver, are unchanged.

Outside the 1995 Act, the reforms leave the wider law of negligence in Ireland where it stood. Section 34 of the Civil Liability Act 1961 continues to govern apportionment in every context other than a section 5A determination, an employer's duties to employees remain governed by the Safety, Health and Welfare at Work Act 2005 and the common law, and nothing in Part 6 touches liability for accidents that do not arise from a danger on premises.

Frequently Asked Questions

Six questions cover what readers most often ask about the 2023 reforms. Each answer states the position first, then the context.