How far you can legally go to stop someone from playing a trick on you this Halloween
Authored by DAS
The season of ‘spookiness’ is officially upon us! As Halloween approaches, many of us are looking forward to the fun-filled celebrations that come with this beloved holiday.
From trick-or-treating and costume parties to carving pumpkins and enjoying delicious treats, there’s something for everyone to enjoy.
However, amidst all the excitement, it’s important to be aware of the potential legal issues that can arise during Halloween festivities. What can you do if someone chooses to play a ‘trick’ and damages your property? Can you intervene to stop property damage? Can you be held legally responsible if a child has an allergic reaction to the ‘treats’ you gave them?
Sergio Abreu, Legal Adviser at DAS Law has the answers to these questions (and others) to avoid making this Halloween a legal horror story.
Is trick or treating illegal and are there any age restrictions on how old you have to be to take part?
Trick or treating is not considered an illegal act, although it is considered by some to be an “unwelcome American cultural import” and can sometimes result in incidences such as property damage, nuisance and personal injury.
Anyone can take part in trick or treating as there is no legal age limit on this however, the NSPCC does express for parents and children to exercise caution when they are trick or treating on their own or without parental supervision.
If a child damages your property with a ‘trick’, can you recover repair costs from the parents?
Property damage can be deemed a criminal offence as well as a civil matter. Halloween is a very busy time for the police as they can receive a high volume of calls at this time of year. Before contacting them, please consider whether the matter can be resolved amicably. However, if you are concerned about your safety then you should contact the police as soon as possible.
Generally speaking, parents or guardians are responsible for ensuring their children are supervised in certain circumstances, although this will vary depending on their age as older children are less likely to require supervision as they will have a greater responsibility for their actions.
This means that any civil action for recovery of losses due to damage caused by a child would need to be taken against the child. However, holding a child responsible for their actions may not be a realistic way forward as a child is unlikely to have assets to pursue damages, so it would be preferable for you to hold the parent or guardian responsible.
To hold a parent or guardian responsible, you would need to prove that they have been negligent and this resulted in the child damaging your property. This would be dependent on circumstances and evidence and could include arguments such as failing to supervise or failing to control the child.
The success of this argument would be dependent on proving the elements of negligence – was there a duty of care? Has that duty of care been breached? Has there been any damage as a result of that breach? Is the damage foreseeable?
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 protection from any unlawful interference with their use or enjoyment of it. If you are in fear for your safety and/or feel harassed, then you should contact the police straight away 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 or could amount to harassment but these arguments would be circumstantial and based on evidence.
Normally, you could look at taking legal action for nuisance for remedies such as damages and/or an injunction. If the nuisance is proven, 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 rather than nuisance.
Can you physically intervene if an act of vandalism is taking place on your property by a minor?
I would advise against any physical interactions and if the situation escalates you should report the matter to the police.
Any property damage is potentially a criminal offence and you could threaten to report the perpetrator to the police. You could also look to take a civil claim for damages to compensate you and put you back in the position you were before the damage as discussed above.
Any physical interactions could cause the situation to escalate. If you assault an individual, 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 that you have been negligent to hold you responsible for any injuries that occurred as a result.
To establish negligence the court will look at whether you owed the claimant a duty of care, that there has been a breach of that duty, and this has caused the claimant some kind of loss. They must also be able to prove that the loss was 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 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 give a baby or toddler sweets as they may be less likely to detect certain dangers so extra care should be taken.
The goods that I have purchased specifically for Halloween are faulty, can I return them?
If you have purchased an item and it turns out to be faulty, not fit for purpose or not as described, the Consumer Rights Act 2015 provides that you can reject such goods within the first 30 days after purchase.
If you notice any issues after 30 days of purchase, the onus will be on you to prove the above breaches and for the seller to prove that the issues raised are not inherent problems or to rebut them.
The remedies available in such instances are a repair, replacement and finally a rejection of goods. After 6 months of purchase, both the onus of proving the fault/issues and proving that these are inherent problems lies with the consumer. The best practical advice would be to act promptly to avoid complications with the seller.
Further information on legal topics can be found on DAS Householdlaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.
