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Saturday 18 November 2017

Advice: Can trespassers sue farmers if they get injured on their land?

 

'Recreational users' are treated in the same manner as trespassers
'Recreational users' are treated in the same manner as trespassers

Theresa Murphy

Q. I am one of a number of farmers sharing grazing rights on a commonage in the east of the country. Being in a scenic area with easy access to the public this commonage is increasingly being used for recreational and hunting purposes by neighbouring residents and other persons unknown for such uses as hill walking, mountain biking, dog walking, scrambling and hunting with some of these activities happening during hours of darkness. What are the responsibilities of the commonage shareholders to these recreational users?

A. It is most often the horror stories of trespassers becoming injured and suing landowners, in circumstances where they were completely uninvited onto the land by the land owner, that have farmers worried about their liabilities. So what can farmers do to protect themselves from being sued in a situation like this?

The person with responsibility for the land will generally be the occupier of the land - whether they are the occupier as a result of a lease or license etc will depend on the agreed terms of the license/lease.

But a general rule of thumb is that the person in control of the property is responsible for any breaches of duty.

That being said, in many cases the injured party will sue both the occupier and the land owner (where they are different people), although this is not the correct legal procedure it may be done as a precaution if there is uncertainty as to who is responsible and legal costs can be incurred.

Land owners should certainly keep an eye that the occupier is taking reasonable precautions.

Dangers on the land

If you find that your land is habitually used for an activity that you consider to be dangerous because of features such as, for example, a hole or sharp incline, you should take the precaution of erecting a warning sign in an obvious position (typically at the gate) to provide the user with a warning of a potential hazard.

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This also applies in the case of keeping a bull which may pose a threat to the safety of hill walkers.

If you find that your land is being used for a dangerous activity/pastime you should notify the Gardai and take steps to prevent these actions taking place on your land.

Recreational Users

The law in this area created a category of persons called the 'recreational user' who, either with or without the occupiers' permission, is present on premises without having paid a charge, for the purpose of engaging in a recreational activity.

This obviously refers to persons such as hill walkers. These persons are treated in the same manner as trespassers.

All that is required of the landowner in respect of these persons is that the landowner does not injure them intentionally or act with reckless disregard for them. 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.

'Reckless disregard'

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.

An example would be 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 supervisor/parents failure to supervise them properly.

Insurance

Like all other farm land you should consider the option of insuring your property against claims of this type - you should consult any potential insurer with details of the land type and the activities that are being carried out there.

Commonage/shared ownership

In relation to this query, I note that you are a commonage owner and in this instance you should be aware that commonage owners would potentially be liable for claims in relation to the commonage lands in direct proportion to the share they own/occupy.

This article is intended as a general guide only. You should seek professional advice in relation to individual circumstances

Theresa Murphy is a barrister based in Ardrahan, Co Galway


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