How Halloween can turn into a legal ‘fright night’

Halloween is generally a ‘spooktacular’ time for all but a few
bad apples can spoil the fun. So what can you do if someone chooses to
play a trick and damages your property? And can you intervene to stop
property damage? Are you responsible if a child is allergic to the
sweets you gave them?

Simon Roberts of DAS Law has the answers to these questions and
others to avoid making this Halloween a truly blood-curdling event.

If a child damages your property with a ‘trick’, can you recover
repair costs from the parents?

Damage to property is potentially a criminal offence as well as a
civil matter. Halloween is a busy time for the police and they may
receive a high volume of calls, so before contacting them consider
whether the matter can be resolved amicably. However, if you are
harassed and concerned about your safety then you should contact the
police.

Generally speaking, parents are responsible for supervising their
children but are not liable for the acts of their children and cannot
be directly responsible for damage they may cause to your property. So
you would ordinarily have to take civil action against the child as
there is no minimum age at which a child can be held to be negligent –
this would entirely depend on the circumstances and their
understanding. But this may not be a realistic way forward as a child
is unlikely to have assets to pursue for damages, so it would be
preferable to hold the parents responsible if possible.

Parents are responsible for ensuring their children are supervised in
certain circumstances, although this will vary depending their age
i.e. older children are less likely to require supervision as they
will have a greater responsibility for their own actions. Therefore,
the other option is to consider would be whether it may be possible to
sue the parents in negligence for failing to supervise or, if they did
supervise at the time, for failing to control their children. This, of
course, would be dependent on proving the elements of negligence.

How far are you allowed to go to stop a child from playing
‘tricks’ on you and your property?

A landowner is entitled to the peaceful enjoyment of their land and
to protection from any unlawful interference with their use or
enjoyment of it. If you are in fear for your safety and/or harassed,
then you should contact the police as these are criminal matters. From
a civil point of view, it could be argued that a regular stream of
people invading your property whilst ‘trick or treating’ would
amount to a legal nuisance.

Normally, you could look at legal action and remedies such as damages
and an injunction. If nuisance is proved, a key question would be who
could an injunction be taken out against? Due to the transient nature
of the nuisance, it would be difficult to bring a claim against a
one-time offender as would be the case with Halloween. However, if
someone persistently posed a nuisance, then it would be more likely to
succeed in a claim against them for trespass or nuisance.

I would advise against any physical interactions and, as above, if
the situation escalates you should report the matter to the police.

What can you threaten or can you physically intervene if an act of
vandalism is taking place on your property by a minor?

Any damage to property is potentially a criminal offence and you
could threaten to report the perpetrator to the police. Further, you
could also seek to take a civil claim for damages to compensate you
and put you back in the position you were before the damage.

I would advise against any physical interactions as the situation
could escalate. If you assault a child, this could be reported to the
police and it may be difficult to justify whether this response was
reasonable in the circumstances and you could risk criminal sanctions.

If you give a child sweets for Halloween and they choke or have an
allergic reaction, are you responsible?

This would of course depend on the circumstances. Assuming the sweets
have not been interfered with, a claimant would have to prove you have
been negligent in order to hold you responsible for any injuries. To
establish negligence the court will look at whether the defendant owed
the claimant a duty of care, there has been a breach of that duty and
this has caused the claimant loss. The loss must also be foreseeable.

In practical terms it may be difficult to establish negligence if you
simply gave a child a sweet and they choked as this could be down to
any number of reasons, for example, the child’s own behaviour
contributing to the incident. The child would be assuming a certain
level of risk and therefore, if any claims were brought, you would
look to argue either a voluntary assumption of risk and/or
contributory negligence as a defence. However, the circumstances may
be different if you gave a baby or toddler sweets as they may be less
likely to detect certain dangers so extra care should be taken.