Gatecrashers and the law
WHAT happens when you have a party at your home and gate crashers arrive? How can you get rid of them? What if they injure a guest? And what if they get injured themselves? Can you be sued?
After a spate of home invasions, the Criminal Code has been amended to make it lawful for the occupant of a house to use any force or to do anything else that the occupant reasonably believes is necessary to prevent someone from entering the house or to defend themselves against actual or threatened violence. The result is that a party host no longer has to stand by and watch guests being threatened with violence or see the premises being vandalised.
The home owner can use force on reasonable grounds to prevent this from happening.
Home owners owe trespassers a duty of care, however, it is not as onerous as the duty of care that home owners owe everyone else. In the case of a trespasser who is at a property intending to commit an offence punishable by imprisonment, a home owner only has a duty to not deliberately injure the trespassser and not act with reckless disregard for their safety.
This means that while setting bear traps in the backyard may be going a bit far, a gate crasher who trips over a garden hose on the front lawn is going to have a hard time proving the party host was negligent.
What about the guests?
The Occupiers’ Liability Act does not impose a duty of care on party hosts insofar in this type of situation because gate crashers are not “dangers posed by reason of the state of the premises”.
However, the general principles of negligence still apply and can impose liability in some circumstances.
It all depends upon the state of the party host’s knowledge.
Obviously it would not be reasonable to expect the host of a dinner pary for eight 40 year olds to hire a couple of bouncers to keep out any unwanted visitors.
However, it is a different story if mum and dad are hosting their son’s 18th birthday party and 50 teenagers have been invited.
Chances are it would not be a long stretch for the parents to foresee the possibiliy of a few univitied guests tagging along for the ride.
In such a case, the standard of care is more onerous than the situation for a small dinner party.
Some type of crowd control would probably be necessary for mum and dad to discharge their duty to the teenagers whos care they have been trusted with.
Keeping an eye on the door and the gates and letting the police know there is a party going on might be enough.
It will, like all cases of negligence, all turn on the facts of each ase.
However, the reality of the law is that it all comes down to how the courts apply it.
There are obvious public policy factors that will influence the courts in cases such as these and judges should be reluctant to impose civil liability on a party host where an application for criminal injuries compensation would be more fitting in the circumstances.
Trevor Lienert, solicitor
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