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