Q Our farm is in a lovely setting with a river and the ruins of an old castle. We're just a couple of miles from the local town and have never had an issue before.
But over the last couple of weeks more and more people are visiting the castle and river.
We're okay with walkers, in principle, but we not sure if our public liability covers people crossing our land without them having cleared it with us. Do we need to check this with our insurance company?
Our bigger issue is that youths from the local town are beginning to congregate in the evenings - they are cycling out to the farm and drinking cans in the castle.
Apart from the rubbish, which is a nuisance, we're worried if something happens on of them that we will be held liable.
Should we put up signs saying that anyone on the farm is doing so at their own risk or that it's private property and trespassing is not allowed?
The potential responsibility for a personal injury that may happen to someone who enters their property is a worrying thought for many landowners.
Landowners who have recreational users such as hill-walkers accessing their lands are particularly concerned about this.
To answer your question, it is important first to outline the different categories of people who come onto your land and what duty is owed to each of them.
The Occupiers' Liability Act 1995 (the Act) was introduced to outline the liability of occupiers (otherwise property owners/landowners) to those who come onto their lands.
It provides clarity regarding the duty of care occupiers have to different types of entrants (people who enter your land/property). Such entrants are broken down into visitors, recreational users and trespassers.
A visitor is defined as someone who is invited or permitted onto the premises by the occupier or is there as of right.
A recreational user is someone who comes onto the occupier's premises with or without their permission, without a charge, and engages in a recreational activity, such as accessing a historical monument.
A trespasser is then defined as someone other than a visitor or a recreational user.
Duty of care
The duty of care that an occupier has varies depending on the category of person that enters onto their land.
For example, the occupier's duty of care towards a visitor is higher than it is to a recreational user and trespasser.
For a visitor, the occupier must take reasonable care to ensure the visitor does not suffer damage or injury due to a danger on the lands.
Of course, it is also incumbent upon a visitor to take reasonable care for their own safety.
The duty of care an occupier owes to recreational users and trespassers is similar to each other in that the occupier must not intentionally injure them and also not act with reckless disregard for them.
There are a number of factors a court would consider when deciding whether the occupier acted with reckless disregard - for example, whether the occupier knew or had reasonable grounds for believing there was a danger on the premises; whether the occupier knew or had reasonable grounds for believing a person would be, or is likely to be, on the premises.
Each case would depend on its own set of circumstances.
You do not delve into the specifics of the river or the state of the ruins on your farm, but it is safe to say you should erect warning signs as you know that people access your lands and you are aware of potential dangers.
These warning signs, however, will not absolve you from liability and you must still exercise your duty of care.
It is interesting that the Act only allows you to limit your duty of care towards visitors, not towards trespassers and recreational users. Any signs erected should be reasonable and must be brought to the attention of visitors.
You should get specific advice from your solicitor regarding the erection of notices on your property.
It is prudent that you bring this matter to the attention of your insurance company to ensure you are covered in the event of an incident happening.
You could also bring the youths' behaviour to the Gardai's attention as they are trespassing on your lands and leaving rubbish.
The information in this article is intended as a general guide only. While every care is taken to ensure accuracy of information provided, Deirdre Flynn does not accept responsibility for errors or omissions howsoever arising. You should seek legal advice in relation to your particular circumstances at the earliest possible time.
Deirdre Flynn is from a farming background and practises as a solicitor in Tralee, Co Kerry