In determining whether a land owner showed reckless disregard to the 'recreational user' or 'trespasser', the court will consider whether the landowner knew or believed that the person was or was likely to be on the land and near the danger and whether it was reasonable to expect the landowner to protect the person from danger.
The court will also look at whether the land was of a nature that it was likely that people would use the property for recreational use. For example, if the property was traditionally open for public use.
The court also considers the care which the trespasser should be expected to take of themselves while on the land, and also the supervision which the injured person is under while on the premises.
For example, a small child ought to be supervised on the land or premises and the landowner should not be liable for the superviser/parents failure to supervise them properly.
Another factor which the court must consider in deciding whether or not a landowner showed reckless disregard for the safety of the persons on his/her land is the nature of any warning given by landowners about potential dangers.
A sign which states 'Trespassers will be prosecuted' will not be adequate warning to the trespasser or any other persons of, for example, a dangerous bull within the field upon which the sign is displayed, or indeed any other such danger lurking within the lands.
It would certainly be a much greater protection to the landowner to display a sign which advises care and the danger or hazard that lies within the field.
The sign of course must be in an obvious place and located where the entrant is likely to see it, for instance, on the gate/stile.
An invited person or visitor to a premises is owed a duty of care which is slightly greater than the trespasser or recreational user in so far as the landowner must take reasonable care for the visitor's safety.
The court will of course consider whether the visitor was taking reasonable care of him/herself on the premises, but the landowner should take steps to warn him/her of any dangers.
While this will undoubtedly leave the landowner or indeed the person in occupation of the land wondering, what is a reasonable level of care for such persons, the general rule of thumb is, if in doubt do something about it before an unfortunate incident occurs.
Intruders and Vandals
A very surprising position exists in Irish law whereby a householder could be sued for damages under the Occupier's Liability Act 1984 if a burglar is injured whilst on their property. The test will be whether the householder could have predicted that a trespasser was likely to be injured.
Although not an uncommon sight, if broken glass has deliberately been placed at a likely entry-point, any subsequent injury suffered will have been entirely foreseeable and the householder or landowner would be in difficulty if sued by an injured intruder.
If you intend to use physical deterrents like broken glass or barbed wire by warning trespassers of the hazard or by discouraging them from coming onto the property using a sign, this may be considered adequate to discharge your duty of care.
The Criminal Justice Act 2003 provides some protection to householders and land owners in these situations.
If a trespasser suffers an injury during the course of committing a crime, for which he is subsequently convicted and for which he could be sent to prison, he will only be able to sue the householder if he gets the court's permission.
The court is unlikely to grant permission unless the householder had taken grossly excessive steps or had not been acting to defend himself, his family or his property from an offence.
In the case of barbed wire being erected as a deterrent, the Highways Act 1980 states that barbed wire on land adjoining a public highway must not cause a nuisance to humans or animals using the highway.
Anything placed below 2.4 metres high will usually be deemed to be causing a nuisance and the local authority can issue a notice demanding its removal.
Anyone considering using barbed wire in close proximity to a public roadway should contact their local authority for advice on this.
Theresa Murphy is a barrister based in Co Galway email: firstname.lastname@example.org