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Amendment of section 4 of Act of 1995
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41. Section 4 of the Act of 1995 is amended—
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(a) in subsection (2)—
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(i) in paragraph (a), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
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(ii) in paragraph (b), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
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(iii) in paragraph (c), by the substitution of “knew of, or was reckless as to whether,” for “knew or had reasonable grounds for believing that”,
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(iv) by the deletion of paragraph (d), and
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(v) in paragraph (g), by the substitution of “person, including whether or not he or she entered onto the premises as a trespasser, and” for “person, and”,
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(b) in subsection (3)(a), by the substitution of “in exceptional circumstances, having regard to matters such as the nature of the offence, the extent of the recklessness on the part of the occupier, or the fact that the person was not a trespasser” for “in the interests of justice”,
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(c) in subsection (4), by the substitution of “shall, subject to section 5A, owe” for “shall owe”, and
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(d) by the insertion of the following subsection after subsection (4):
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“(5) Without prejudice to the generality of subsection (4), in determining under that subsection whether or not an occupier has complied with the duty to take reasonable care to maintain a structure in a safe condition, regard shall be had, as appropriate, to all of the circumstances of the case, which shall include but are not limited to the following:
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(a) the probability of a danger existing on the premises;
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(b) the probability of the occurrence of an injury to, or of damage suffered by, a recreational user by reason of a danger existing on the premises;
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(c) the probable severity of an injury to a recreational user that might result from a danger existing on the premises;
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(d) the practicability, and the cost, of precautions or preventative measures;
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(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).”.
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