A trespasser is anyone who goes onto another person's property without their permission. A postman delivering post has implied permission by the property owner to be there but for example, an unexpected salesman or someone delivering leaflets might well be considered a trespasser even if there reason for being there was entirely innocent.
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If a visitor is deemed to be a trespasser then it can have a profound effect on any claim as it gives a dog owner a defence under the Animals Act 1971. Importantly that defence won't apply if it can be shown that the dogs were there for "protection" of persons or property; and if they were, that keeping them there for that purpose was unreasonable.
DID YOU KNOW?
Last year almost a quarter of reported injuries by animals involved postmen! Although it might not seem it things are getting safer for postmen with the number of incidents involving them falling by 40% since 2002/03 while that to Animal care occupations rose by 61%.
Also even if someone is a trespasser, they are still owed a duty of care, both at common law, and pursuant to Section 1 (3) to (5) of the Occupiers Liability Act 1984:
"(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if — (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection. (4) Where, by virtue of this section, an occupier of premises owes a duty to another in respect of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned. (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."
In a recent case dealt with by us a saleswoman (having received no answer at the front door) walked through a closed garden gate where she was attacked by dogs being kept there. It was decided that she had overstepped the grounds of what a reasonable visitor to the property might have done by going through the gate and was therefore a trespasser. For her claim to succeed it was decided that what had to be established was as follows:
- that the dog owner was aware of, or had reasonable grounds to believe, that there was a danger, in that the dogs had a tendency to attack strangers who might enter the property;
- that the dog owner had reasonable grounds to believe that a person on an unsolicited visit "may" come into the vicinity of the danger (i.e. by entering the rear garden when the dogs were loose); and,
- the risk was one "against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection."
As in many animal injury cases proving what the dog owner was aware of and had knowledge of required time spent speaking to neighbours, local dog wardens, and the police and council. Vet records were obtained to confirm a past history of aggression.
This case shows the difficulties involved and the many different issues which are often raised in dog bite cases. It highlights the need to have specialist solicitors acting for you who are familiar with and can advise on all aspects of dog bite and animal injury law.
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