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Saturday 24 February 2018

Take action now to avoid incidents with trespassers

Permissions: Landowners should take time to find out their rights and the rights of ‘trespassers’ when they are dealing with people entering their land without their prior permission
Permissions: Landowners should take time to find out their rights and the rights of ‘trespassers’ when they are dealing with people entering their land without their prior permission

Theresa Murphy

Farmers often hear horror stories of trespassers suing landowners for injuries suffered on their land, even when they were completely uninvited onto the land. So what can farmers do to protect themselves from being sued in a situation like this? Barrister Theresa Murphy reports.

Trespass, in the Irish countryside, is a dirty word associated all too often with hill walkers causing significant inconvenience to the landowner and herdsman.

But what rights do these uninvited guests upon your land actually possess, and is the duty of care owed to invited persons any different?

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.

What is reckless disregard?

The circumstances determine whether a landowner showed reckless disregard to the recreational user or trespasser.

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Firstly, the court will look at whether the landowner knew that the person was likely to be on the land and near the danger.

Then it will consider whether it was reasonable to expect the landowner to protect the person from danger.

The court will also look at whether 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 weighs up the care that the trespasser took, and 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's failure to supervise them properly.

Does displaying a sign have any impact?

The court must decide whether a landowner showed reckless disregard for the safety of people on their land by failing to give any warning of the dangers involved. So a sign stating that 'Trespassers will be prosecuted' is not an adequate warning to anyone of a dangerous bull for example.

Instead a sign, that advises care and the danger of a bull within the field, in an obvious place where the entrant is likely to see it would help the landowner's case.

Difference between an uninvited and an invited person?

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 themselves on the premises, but the landowner should take steps to warn them of any dangers.

The general rule of thumb here is that if there is a doubt about something, do something about it before an unfortunate incident occurs.

Often an action as simple as a sign will do the job – it really is a case of better safe than sorry when it comes to this area of the law.

What about contractors?

The landowner is not normally responsible for dangers created by contractors due to negligent or dangerous practices by the contractor employed.

This only applies, however, where the landowner has taken all reasonable care in the circumstances. For example, if the landowner knows that the contractor is not capable of doing the work safely then he should not hire them.

So if you have any doubts about the professionalism of a contractor, you should give them a wide berth in order to avoid a situation where you are liable.

Theresa Murphy is a barrister based in Ardrahan, Co Galway. Contact: theresamurphy@lawlibrary.ie This article is intended as a general guide only and professional advice should always be sought for individual circumstances. No liability is accepted for errors.

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