Ask a solicitor: Am I to blame if a trespasser gets injured?

This tends to be mainly younger people in the evenings, some of whom engage in anti-social behaviour. I have signs up saying “private property do not trespass” but I am worried that there will be an accident and I would be liable for this. What are my legal obligations here?

Dear Reader,

This is an issue that many landowners may face, and I would recommend that you contact the Gardai or your local Council and make a complaint.

The Irish legal position is that a trespasser is recognised as a person who does not have authority or permission to be on your land. This is governed by the Occupiers Liability Act 1995, Courts and Civil Law (Miscellaneous Provisions) Act 2023 the common law. 

Under the Act, a trespasser is defined as an entrant other than a visitor or recreational user. Section 4 of the 1995 Act requires that an occupier does not act with reckless disregard towards a recreational user or trespasser of the premises.

The first duty of care is standard and self-explanatory: The occupier of the land must not set out to intentionally harm any trespassers.

The second duty of care, however, is more complicated. The phrase “reckless disregard” must first be understood. This means that you must take all care and measures to allow for the safety of any persons entering the land and to protect and prevent from any obvious or hidden dangers that might have the potential to harm any persons entering the land. In effect, you must have regard for any dangers that exist on your lands and take every effort to protect any potential trespassers from these dangers.

If an incident were to occur resulting in a trespasser being injured on your land and the case was brought before the court, the court would consider the facts or circumstances of the case and whether you, as occupier, knew of, or were reckless as to whether:

• A danger existed on the premises;
• That the person and, in the case of damage, property of the person, was or was likely to be on the premises;
• The person or property of the person was in, or was likely to be in, the vicinity of the place where the danger existed.

It should be noted that where a person enters your land with a view to committing an offence, the occupier shall not be liable for breach of duty unless the court deems it is in exceptional circumstances, having regard to matters such as the nature of the offence, the extent of the recklessness on the part of the occupier, or the fact that the person was not a trespasser.

Another way to prevent trespassers on your land and a factor that the courts may consider when deciding whether you owe a duty of care is if you have any visible signs or warnings up. If there are any dangers on your land, we would recommend the signs should say what the danger is.

You can take steps to protect yourself from any liability that may occur, such as placing warning signs and ensuring that your lands do not have any danger or defects that could potentially injure a trespasser.

It is advisable that you notify your insurer and obtain legal advice from a solicitor if an incident has occurred on your lands where a trespasser has injured themselves.

Stephen Coppinger is a solicitor practising in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.  Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email: info@walshandpartners.ie 

Web: www.walshandpartners.ie

• Disclaimer: While every care is taken to ensure the accuracy of the information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.