Why you must protect trespassers from dangers

Legal advice for farmers

Erecting a sign may not offer a full defence in court proceedings against you by a trespasser, but certainly may limit your liability.

Dear Karen,

I am farming in the home place, and I starting building a family home on a site on the land. I just got the house up to roof level, but the windows or doors had not gone in yet, when Covid struck, and all construction ground to a halt.

Teenagers started coming onto the site, drinking alcohol late at night, and are still doing this. I thought it would stop once the restrictions lifted.

What can I do to protect my building?

What can I do to protect myself in case one of them has an accident on my site?

Dear Reader, 

In Irish law, a trespasser is recognised as a person who does not have authority or permission to be on your land. The duty of care that a landowner owes to a trespasser is twofold.

Firstly, the landowner is not to intentionally injure or harm the person, and secondly, the landowner is not to act with reckless disregard for their safety.

The first duty of care is rather 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 a bit 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 them 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, with a trespasser being injured on your land, and the case was brought before a court, other factors can be considered.

The court would consider the circumstances and merits of each individual case. They would look at whether there was a reasonable expectation for the landowner to know the trespasser might be on their lands. They will then consider the danger itself, and whether it was reasonable to expect the landowner to protect the trespasser from it.

A few other factors will also be evaluated, such as the care the trespasser took for their own safety.

You as a landowner must have a valid safety statement in place and a risk assessment carried out, because the construction project needs to be in compliance with the Safety, Health and Welfare at Work Act 2005.

The Health & Safety Authority are the governing body of health and safety in Ireland, and they can provide advice to a person building their house, on their legal duties. A safety consultant can prepare a health and safety statement, which would include a risk assessment. As this is a building site, you should ensure that the site is accurately fenced off and padlocked, and locked every evening after workmen go home.

All materials should be stored securely.

In general, it is recommended to have signs up warning trespassers to not enter your lands, and informing them about any potential dangers in the area, in order that they can protect themselves, and to protect yourself from any potential litigation, in the event a trespasser suffers injury while on your lands.

While having a sign up may not offer a full defence in a court case, it certainly may limit your liability, subject to the evidence provided and the discretion of the court.

It is also advisable, if your land is being trespassed on, that you contact the Gardai, as there may be a potential criminal act occurring.

In the event that a trespasser takes court proceedings against you, for injury suffered whilst trespassing on your lands,, we would recommend you obtain legal advice from a solicitor.

• Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.
• Email: [e-mail] Web: www.walshandpartners.ie