How to avoid making this Halloween a legal horror story

How Far Can You Legally Go to Stop People From

Playing a ‘Trick’ on You This Halloween?

 Halloween can be a treat for you and your little gremlins, but ghoulish behaviour can often turn a night of fun into a nightmare. So what can you do if a trickster damages your property and how far can you go in trying to stop them? Are you responsible if a ‘treater’ has an allergic reaction to the sweets you give them?

Hannah Parsons of DAS Law has the answers to these questions (and others) to avoid making this Halloween a legal horror story…

 ▪ 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 on their age i.e. older children are less likely to require supervision as they will have a greater responsibility for their own actions. The other option to consider would be whether it may be possible to sue the parents for 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.

▪ 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. 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, that 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.

 Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created.