Should I be worried about trespassers on my land?

Dear Reader,

This is a worry for many landowners. A trespasser is defined as “an entrant, other than a recreational user or a visitor”. Such entrants do not have permission or authority to be present on the property. A burglar falls within this definition.

The duty owed to trespassers is set out in Section 4 of the Occupiers Liability Act 1995. It is similar to that owed to recreational users. However, an occupier may not be liable for injury or damage unintentionally caused to a person who enters on land or premises for the purposes of committing an offence, unless the court determines otherwise. The decision of the court will be based on the facts of the case.

In the case of Williams vs. TP Wallace Construction Limited, the entrant plaintiff did not have permission or authority to be on the property in question. The defendant company had hired the plaintiff to install guttering at a shopping centre.

On the day of the accident, the plaintiff attended the defendant’s premises unannounced in order to establish whether the job was being carried out properly.

The plaintiff proceeded to inspect the site without express permission while the site workers were on a break and the architect was not present.

The plaintiff sued the defendant for injuries he sustained as a result of a fall from a ladder, which was not tied to the scaffolding. The plaintiff contended that the defendant was negligent in failing to have the ladder secured.

The court held that the plaintiff was not a visitor, but was instead a trespasser, because he was not on the site by invitation or arrangement. The court found in favour of the defendant and dismissed the plaintiff’s case on the basis that the failure to tie the ladder to the scaffolding was not an act of reckless disregard, and the defendant did not breach his duty to the plaintiff, a trespasser, in this regard.

The 1995 Act does not draw a distinction between an adult and a child, so a child is owed the same duty of care, however gauging the standard of reckless disregard, the court must have regard of all circumstances, such as the conduct of the person, and the care that he or she may reasonably be expected to take for his or her own safety while on a premises. Naturally, a child is not aware of dangers as an adult would be, and they may ignore or fail to understand warning signs.

As a result, the courts have traditionally afforded more leniency to children who come onto premises as a trespasser, if it could be shown that the child was at an age that he or she would “follow a bait as mechanically as a fish” and the occupier’s premises contained “an allurement”.

The case law states that in order for something to be an allurement, it must be both “fascinating and fatal”.

In the case of O’Leary vs John A. Wood Limited, the court held that “an object should not be considered an allurement unless the temptations which it presents are such that no normal child could be expected to restrain themselves from intermeddling even if he knows that to intermeddle is wrong”.

Clearly, the allurement approach in these types of cases is of great benefit to children, but the courts appear to have taken a restrictive approach so as to ensure that the net for liability is not cast so widely as to be unjust.

Karen Walsh, from a farming background, is a solicitor practising at Walsh & Partners Solicitors, 17 South Mall, Cork, and 88 Main Street, Midleton, Co Cork, and also the author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: info@walshandpartners.ie

Web: walshandpartners.ie

• While every effort is taken to ensure the accuracy of the information contained in this article, Karen Walsh does not accept responsibility for errors or omissions howsoever arising. Readers should seek legal advice in relation to their particular circumstances at the earliest opportunity.