Can a burglar sue me if they hurt themselves breaking in?
The intruder crept along the hallway, face hidden with the hood of his best tracksuit...
Nearing the top of the stairs he feels his foot crunch on something plastic and is suddenly blasted with the sounds of "Let it Go", belted out by the Elsa doll that escaped tidy up time.
He jumps back in panic, looses his balance and grabs for the handrail which breaks off in his hand. He tumbles down the stairs, head over heels and breaks his collarbone.
Imagine your surprise when he sues.
That can't be right can it? I thought I would do a bit of digging...here's what I found.
Do I owe a duty of care to burglars?
In my previous blogs I explored whether we are allowed to arm ourselves in defence of our homes, or just in case we are attacked when we are out and about. This is certainly not intended as a complete guide, and if you are sued, you definitely need specialist legal advice from persons qualified.
We all understand that we have to take care of invited guests and people who may be using our home, like paying tenants, etc. The Occupiers Liability Act 1957 says occupiers have a duty to take reasonable steps to protect lawful visitors, from death, injury and damage to their property.
But what about Trespassers?
In 1929, Lord Dunedin defined a trespasser as:
“… a person who goes upon land without invitation of any sort and whose presence is unknown to the proprietor or, if known, is practically objected to.”
I think the intent of the law is to offer some protection to trespassers, like kids fetching their ball, or people taking shortcuts across the rail line through the hole in the fence.
But believe it or not, we do actually have a duty of care to people who we did not invite and definitely do not want to be there, like trespassers and even burglars (in limited circumstances).
The Occupiers Liability Act 1984 says we only have a duty of care to such people if we:
- know about the danger or have reasonable grounds to believe it exists.
- know or have reasonable grounds to believe the tresspasser is or may be near the danger, and
- the risk is one that given the circumstances he may be reasonably expected to offer some protection against.
To the news then...
In April 2015 a 16 year old burglar tried to sue a local authority after he fell 15ft through a skylight of a school. He suffered life threatening injuries, which included 10 skull fractures, and resulted in him being in a coma for 2 weeks.
His family argued that more should have been done to protect the 16 year old and his friends, and that the authority were liable under the Occupiers Liability Act 1984.
The judge ruled that the school had taken "reasonable measures" to sure up security, and did not believe the claim that he was only trying to fetch his football. The young man's family were ordered to pay the council £150,000 but this number could end up being nearer to £250,000. Read more about it here.
Can I fortify my home? It's my castle after all...
Yes and no, and I suppose it depends how far you go.
For example, putting barbed wire up around the place will not only drive the value of your property down faster than Brexit, but may land you in hot water too. "Barbed wire" can mean anything with spikes (metal or plastic) or jagged edges and could include "aggressive" toppings on walls.
Things like pieces of broken glass, spikes (metal or plastic) or carpet gripper rods fall into this category too, and we can't have them in a position that may overhang into a public space. The council can require you to remove them and further action taken through the courts if it is "likely to be injurious to persons or animals lawfully using the highway" (Section 164 Highways Act 1980, injurious toppings).
Am I ok if I put a sign up?
Not always. Although it would certainly help. If the sign can't be read (maybe the child coming to get his ball cant read yet?), is obstructed or not big enough, then there may be a case to answer.
Section 5 of the Occupiers Liability Act 1984 has this to say:
(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.
Please notice the word "may". This is not saying that you will avoid liability as long as there is a sign. Every case will be different and it will be for the courts to decide on the individual circumstances.
As a guide though, any sign has to be clearly visible, pretty specific to the risk and warn against taking that risk.
So if I put spikes on top of my fence that can be clearly seen, along with signs that say "Danger of Injury: Don't climb over the spikes" my liability would be reduced. If however I have attach a strip of six inch nails to the inside edge of my fence because I don't want to ruin the curb appeal of my house, I may find myself in court if someone is hurt.
If a burglar is convicted of breaking into your house however, they do not have the automatic right to sue if they are injured, but the courts could grant them permission in certain circumstances.
Oh...and the law is quite explicit in banning the use of "man traps" too. So rigging the sawn off shotgun to fire as soon as the trip wire on the door handle is pulled is a definite no no. It's happened... read about it here.
So, to sum up then...
Each case is taken on it's own merits. A burglar who injures themselves on kids toys and Christmas decorations probably won't even get the chance to sue, and if they did, would probably be laughed out of court.
Although, never say never... this is the law we are dealing with after all!