Animals Bill, 1985: Second Stage.

Wednesday, 29 May 1985

Seanad Eireann Debate
Vol. 108 No. 8

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Question proposed: “That the Bill be now read a Second Time.”

Minister of State at the Department of Justice (Mrs. Fennell): Information on Nuala Fennell  Zoom on Nuala Fennell  This Bill is a fairly short but nonetheless important measure dealing with the impounding of animals and liability for damage caused by animals. Both of these matters were dealt with in a report published by the Law Reform Commission in 1982. This was preceded by a working paper published by the commission in 1977 which gave an admirably clear and succinct statement of the law on civil liability for animals. The work done by the commission as reflected in the working paper and final report is much appreciated.

Before outlining the provisions of the Bill, I should point out that it differs from the commission's proposals in some important respects. These differences [903] will become clear in the course of my speech.

The Bill proposes to amend the law relating to certain aspects of civil liability for damage caused by animals. The provisions on these aspects are contained in sections 2 and 3. The remaining provisions of the Bill are intended to deal with the problems caused by large animals wandering on the roads, which have become a source of nuisance and danger in many areas.

Turning first to the question of liability for damage done by animals, the Law Reform Commission recommended the introduction of a new general provision by virtue of which the keeper of any animal would be made strictly liable for any damage which it caused. The effect of this would be to make the keeper of an animal liable for such damage, whether or not he had been negligent in relation to the animal. The amount for which the keeper was liable would be reduced if there had been contributory negligence on the part of the person suffering damage. It was recommended that the ordinary negligence rules, and not strict liability, should apply in relation to damage caused by animals to trespassers. It was also recommended that it should be a defence to show that the damage was attributable to unforeseeable accidents, that is “acts of God”.

In support of their proposal, the commission pointed out that there is already strict liability in many instances in the law relating to animals, that strict liability exists, in this context, in many other countries, and that such a system would provide a clear and simple legal rule. It was also argued that damage caused by animals forming part of a business should be borne by the person keeping them for that purpose, rather than, say, the innocent victim of a road accident. Finally, it was argued that the owner of an animal is the person best able to control the animal and to ensure against the risk of injury which it may pose to other persons.

This proposal of the commission has been given very careful consideration. It [904] is accepted that there are a number of strong arguments for introducing a general principal of strict liability for damage caused by animals. There is one area, however, where it could be regarded as involving too great a change. This relates to the very important question of damage caused by animals straying on to the public road. Under the law as it stands, the occupier of land adjoining the highway is under no liability if his animals stray from the land on to the highway and injure road users. The Bill, in a provision to which I shall shortly be referring in greater detail, proposes that the law should be changed to remove this immunity, so that the ordinary negligence rules will apply in such cases. If a general scheme of strict liability were introduced we would then have a position where, in relation to damage caused by their animals straying on to the public road, the occupiers of land adjoining the road would move from virtually complete immunity from liability to a situation of liability irrespective of fault. This would be a very sweeping change for the persons involved and might involve them in practical difficulties — for example, in relation to insurance cover. It would also be anomalous, in relation to road accidents, if there were to be strict liability for damage caused by animals but not for damage caused by motor vehicles.

In view of these considerations, I hope it will be agreed that it would be premature, at this stage, to give effect to a general principle of strict liability for damage caused by animals.

I turn now to the individual provision in the Bill. Section 2 deals with a matter to which I have already referred. This is the exceptional provision in the law by virtue of which occupiers of land adjoining the public road are not liable in negligence in respect of damage caused by their animals straying onto the road. The Law Reform Commission have pointed out that there has been much dissatisfaction with this common law rule, which has been the subject of widespread criticism. The Commission have also pointed out that this immunity is out of step with modern legal developments and current [905] conceptions of responsibility and, in particular, present day traffic conditions. This immunity, is now an anomaly in our law. The Minister fully agrees with the view expressed by the commission that the immunity should be abolished, and section 2 provides accordingly. The effect of this will be that the occupiers of land in such cases will be subject to a duty of care in respect of their animals straying onto the road and that the ordinary negligence rules will apply to them.

There are areas of the country where, in accordance with long established custom, land is not fenced off from the public road. If no special provision had been included in the Bill in respect of those areas, it is possible that the courts would have found, in particular cases, that the mere placing of an animal on such land was evidence of negligence. If this happened, the practical effect would be that the occupiers of such land could no longer keep livestock on it or, alternatively, if they continued to keep stock on the land, they would have to fence it from the road. It was in order to avoid a possible difficulty of this kind that section 2 provides that the mere placing of an animal on land in areas where fencing is not customary will not itself be regarded as evidence of negligence in cases where the animal strays onto the road and causes damage.

I come now to section 3 of the Bill. The effect of this section will be to impose strict liability on a dog's owner in any case where a dog attacks a person and causes damage. The justification for this provision will be apparent when we consider the large and increasing number of dogs throughout the country, many of which do not appear to be kept under proper control by their owners. There is also an increasing tendency to keep large, and potentially more dangerous animals such as Alsatians. The law has provided since 1906 that there is strict liability where a dog injures cattle or sheep. It is now appropriate that this strict liability should be extended to cases where dogs attack persons. Indeed, it could be regarded as an anomaly in our law that there is strict liability where dogs injure [906] cattle or sheep but liability is not strict where they injure human beings. Under the law as it stands, the only way that the owner of a dog can be held strictly liable for injury done by his dog to a person is for the injured party to prove that the owner knew that the dog had a vicious disposition. Clearly, this may not be an easy thing to prove in a court of law. I am hopeful that one of the effects of the provision in section 3 will be that it will lead to stricter control of their pets by the irresponsible minority of dog owners. Perhaps, also, it will lessen the tendency towards the casual acquisition of potentially dangerous dogs.

As I have mentioned the question of dog control, it will be noted that this is not a dog control measure and that the Bill does not seek to deal with the considerable problem posed by stray dogs. Any attempt to deal generally with the problem of stray dogs would be outside the scope of the Bill. In this connection, I should add that an interdepartmental committee on dog control have reported to the Minister for Agriculture and that he is at present examining that report.

Section 3 re-enacts section 1 of the Dogs Act, 1906, providing in subsection (1) for strict liability for personal injuries caused by dogs. Subsections (4) and (5) are new provisions. Subsection (4) provides that strict liability will not be incurred by the occupier of land where his dog, or a dog whose presence on the land he has authorised, injures cattle straying on to the land. Subsection (5) provides that strict liability will not be incurred where dogs cause damage to trespassers and that the ordinary negligence rules will apply in such cases.

It may be asked why the occupiers of premises are not wholly exempted from liability for damage caused by their dogs to trespassers. After all, some of the more vulnerable sections of our community, such as the elderly, may keep dogs for companionship and protection and such a dog might injure a person entering their premises. On consideration it became clear that a general exemption of this kind would not be appropriate, having regard to the great variety of cases [907] that can arise. It would be necessary to distinguish between criminal trespass and trespass which is innocent or inadvertent. Questions would arise as to whether the exemption should be confined to particular types of premises, such as residential premises and, indeed, whether it should relate only to trespass during the hours of darkness.

The question would also arise as to the type of dog which caused the injury or damage and the purpose for which it was kept. In individual instances it can happen that the injury caused by a dog is disproportionate to any damage which the trespasser might cause. In view of these considerations, it appears that the degree of liability, if any, incurred by the occupier in such cases is best left for decision by the court, which will have regard to all the circumstances of each case. The proposal in subsection (5) follows this line and is in accordance with the recommendation of the Law Reform Commission, made in the light of the Supreme Court's restatement of the law relating to liability towards trespassers in the 1975 case McNamara v. ESB.

Before leaving the civil liability aspects of the Bill, I would like to mention that dog owners might find it advisable to insure against the proposed strict liability for personal injuries caused by their dogs. Inquiries from insurance sources indicate that the additional premium required would not be significant in amount.

I now turn to the very important provisions amending the law on the impounding of animals. These provisions are designed to deal with the problem of wandering animals, which occurs particularly in some urban areas such as Limerick and parts of Dublin, where straying animals, especially horses, are an everyday nuisance. There is clearly a need for statutory provisions designed to deal with this problem. The 1851 Summary Jurisdiction Act is the Act normally relied upon for the impounding of wandering animals. This Act, however, is inadequate in that it does not give powers of impounding specifically to the Garda and, in any case, [908] its powers do not apply where the owners of the animals are known.

These impounding powers will apply to animals such as cows, horses, asses, sheep and goats which come within the definition of “animal” in section 1. The impounding provisions commence with section 4, which gives specific powers of impounding to the Garda Síochána and the local authorities. These powers will apply even where the owner is known. They will apply to animals found wandering on a public road or in any public place, as well as to those found trespassing on any public park or open space owned by a local authority or State authority. In the case of public parks and open spaces, the impounding may only be carried out at the request of the body which owns or occupies land, since it would not be appropriate for the persons involved in the impounding process to enter privately owned lands without authority.

Subsection (3) of section 4 implements a proposal from the Office of Public Works that they should be given power to impound animals trespassing in public parks under their control and management. This would correspond to the power already proposed to be given to local authorities to impound animals trespassing on local authority lands. This is to deal, in particular, with the problems of animals trespassing in the Phoenix Park and in the National Parks in Glenveagh, Connemara and Killarney.

Section 5 enables local authorities to arrange for the impounding of animals in private pounds. Generally speaking, from inquiries made from local authorities around the country, it appears that the present network of pounds is adequate to deal with existing levels of impounding. In many areas the existing pound accommodation should be sufficient to cope with the increased demand when the impounding provisions in the Bill are implemented. However, there will be areas, and particularly those areas where wandering horses are a major nuisance, where the effect of the Bill will be an immediate increase in the number of animals impounded. This may lead to excessive demands on accommodation in [909] public pounds in those areas. It would be wasteful of resources, and perhaps impracticable, to meet this temporary need by enlarging existing public pounds or opening new public pounds that might rarely be used once the legislation had full effect. Accordingly, to meet an expected short term increase in demand for impounding facilities, it is proposed in section 5 that local authorities may arrange for animals to be impounded in private pounds.

These private pounds will be made available on the basis of contractual arrangements between local authorities and persons providing the pound accommodation, for the periods stated in the contracts. The provision of private pounds in this way will not, as in the case of pounds provided under the 1935 Act, be subject to the direction of the county registrar, but will have to comply with regulations made by the Minister for Justice. The regulations will have the same scope, generally, as the Public Pounds Regulations, 1938.

The provision in section 5, on private pounds, has been included in the Bill in substitution for a proposal of the Law Reform Commission which, after much deliberation, it has been decided not to accept. Under the commission's proposal the Garda would have been authorised to impound with some suitable person, animals found wandering on the public road. The proposals in the Bill differ from this in several respects. Thus, under the Bill, it will be a matter for the local authority concerned, and not for the Garda, to make arrangements for the provision of private pounds, though, once arrangements have been made, it will be open to the Garda, as well as local authorities and the Board of Works, to impound animals in such pounds. Also, under the Bill, the range of animals which may be so impounded is restricted to the larger animals, whereas the commission's proposal had no restriction on the type of animals that could be so impounded. The commission's proposal envisaged that the Garda in all areas could impound animals with private persons, whereas the Bill envisages that private pounds will be utilised [910] only in areas where the need arises, as determined by the local authority. Finally, the statutory provision proposed by the Commission would have spelled out details regarding matters such as the posting of notices; under section 5 these matters are left to be dealt with by regulations.

The commission also proposed that any occupier of land should be entitled to detain trespassing livestock for a period of up to 14 days, even where the owner was known, subject to notifying the Garda Síochána and the animal's owner. The owner would be able to retrieve the animal before the 14 days were up by tendering an amount sufficient to satisfy the detainer's claim for any damage caused. The occupier of the land trespassed on would be enabled to sell the animal after 14 days.

When this proposal came to be considered, it was noted that over the country as a whole there have been few complaints about the operation of the present statutory provisions, contained in the Summary Jurisdiction Act, 1851, for the impounding of trespassing animals by private persons. Under that Act the occupier of land trespassed upon by an animal must return it to its owner, where known. Where the owner is not known he may impound the animal in the local pound. In either case, he may apply to the District Court to recover damages, calculated on a fixed scale, for any loss incurred as a result of the trespass. The provision in the 1851 Act obliging the occupier to return the trespassing animal to its owner, where known, was probably designed to avoid breaches of the peace. Indeed, to give private persons a statutory right to detain trespassing animals could well be a recipe for bad feeling between neighbours and could even lead to violence.

Intrusions by large animals such as horses into surburban gardens is a comparatively recent development. To grant a right of detaining an animal such as a horse for up to 14 days, as proposed by the commission, would not be of advantage in such cases, as obviously this would be impracticable for most householders [911] in towns and cities. The best way to assist such householders is by removing the nuisance of large animals wandering on the roads, which is what it is proposed to do through the impounding provisions in the Bill, coupled with the provisions for increased fines for poundbreaking and for turning animals loose on the roads.

Section 6 is a new type of provision designed to deal with the specific problem of animals wandering from undeveloped housing estates. The section provides that were a local authority makes a designation order in relation to any undeveloped housing estate, the occupier of the estate will be liable for damage caused by animals which stray from it, unless he gives the local authority and the local Garda superintendent a notice saying that he does not intend to give permision for animals—apart from specified exceptions—to be on the estate and authorising the local authority and the Garda to remove from the site any animal not permitted to be on it; the local authority and the Garda would then be empowered to impound any such animal.

Animals wandering from undeveloped housing estates cause a serious nuisance and, in the absence of special provision, the Garda and local authorities would not be able to deal with it, since such estates are private property. The problem arises from the slow development of many private housing estates.

The provision of section 6 will not be applied to all housing estates under development, but only to particular sites where a nuisance of the kind in question arises. The local authority will be in the best position to determine whether such a nuisance exists. If it does, they may designate the site as a “designated area”, thus bringing the provisions of section 6 into operation in relation to that site. Once this is done, it will be open to the occupier of the site to authorise the Garda and the local authorities to remove the wandering animals, which might then be impounded. If the occupier does not so authorise the local authority and the Garda, he will be liable for damage caused by the animals straying from the [912] land as if he were the owner of the animals.

I have already outlined the proposals for increased impounding powers. In addition, the Bill proposes to improve the effectiveness of the impounding procedure itself. Under section 8 of the Pounds (Provision and Maintenance) Act, 1935, the Minister for Justice can make regulations for the sale, disposal or destruction of animals found trespassing, wandering or straying, where the owner is unknown or cannot be found. Any such sale can only be made pursuant to an order of a district justice. It is proposed, in section 7 of the Bill, to amend section 8 of the 1935 Act so that, in addition to his existing powers, the Minister will be able to make regulations to provide for the disposal of impounded animals by order of the local authority. Section 8 of the 1935 Act is being further amended so that these powers may be applied where the owner is known but fails to pay the prescribed pound fees or fails to remove the animals from the pound.

Senators will also notice in section 7 that substantial increases are proposed in the fines for poundbreaking and for breaches of the pounds regulations provided in the 1935 Act. The maximum fine of £50 for poundbreaking offences is being increased to £750 and that for breaches of the pounds regulations from £20 to £500. These fines relate to public pounds. Section 5 proposes identical fines for similar offences relating to private pounds.

Section 7 also proposes substantial increases in the fines for allowing an animal to wander on the public road and for turning animals loose on the public road. These fines, which have stood at 10 pence and 50 pence, respectively, since 1851 are being increased to a maximum of £150 for a first offence and £350 for a second or subsequent offence.

I should also mention that it is intended to carry out an early review of pound fees. These fees are fixed periodically by orders under the Pounds Act, 1935. The last order was made in July 1984. These fines do not adequately reflect the cost of impounding. For example, the fee for a [913] horse is £13.20 and for a cow £4.05, in respect of each 24 hours or shorter period. The new scale of fees has not been decided but I do envisage a substantial increase in the present level so that they will more closely reflect the actual cost of impounding.

As I said at the beginning, this Bill, through relatively short, is an important measure. The continuation of the immunity enjoyed by occupiers of land in relation to damage caused by their animals straying onto the road can no longer be justified and it was reassuring to see that my proposal for abolition was welcomed by spokesmen for the main farming organisations. The present position whereby there is strict liability for injury caused by dogs to cattle and sheep, but not usually for injury which they cause to human beings, is indefensible and few will be sorry to see its passing into history. Irresponsible dog owners are now under notice to take better care and exercise more control over their dogs.

The impounding provisions will place an effective instrument in the hands of the Garda and local authorities to combat the menance of wandering animals. We can be confident that the additional impounding powers and the greater effectiveness of the impounding procedure, as well as the substantial increases in fines, together with increased pound fees, will have the desired effect of greatly reducing the dangers and nuisance caused by wandering horses. Irresponsible owners will no longer be able to hide behind weaknesses in legislation and will be forced by the law of the land to exercise a more responsible attitude in regard to the control of their animals. We all want to see an end to the situation where parents are afraid to leave their children out to play for fear of injury from these unfortunate starving horses which have been put out on the public road to fend for themselves. I believe this Bill will end such a situation once and for all. Therefore, I have no hesitation in commending this Bill to the House.

Mr. E. Ryan: Information on Eoin David Senior Ryan  Zoom on Eoin David Senior Ryan  The Bill introduces two radical changes in the law. The present [914] law goes back a long time. The law reports are full of cases dealing with both wandering cattle and attacks by dogs. Some of these reports are extremely interesting, and a great deal of law has been argued in relation to cases of this kind in the past. In both cases the position represented something of an anomaly in the law, and consequently the changes which are proposed are acceptable changes.

In relation to wandering cattle, the present position is that an owner is liable if his cattle stray into his neighbour's field and do damage there. But there is no liability whatsoever if the cattle wander on to the road. This certainly does not seem to be sensible or reasonable. Consequently the change in the law which is provided for in this Bill is a good one in the sense that the ordinary laws of negligence will now apply in relation to animals wandering on to the road. From that point of view it is a change for the better, particularly at the present day where animals may wander on to busy roads, may wander on to roads at night where there is a great deal of traffic. Apart from doing minor damage to vehicles and so on, they may cause serious injury or even death to people in passing cars. This change, in all the circumstances, is a proper one and one that can be supported.

The position in regard to the section dealing with injury by dogs is even more complicated. The cases that have been heard in relation to this have been very many indeed and very complicated. At present the position is that an owner of a dog is only liable if the dog had a vicious propensity and the owner knew of this propensity. It is only in these circumstances he is liable if the dog attacks somebody. That used to be summed up by saying that every dog is entitled to one bite. The owner was not liable for the first bite but he was liable once this happened once. This of course was the law in relation to domestic animals. If an animal was not a domestic animal, if he was a wild animal, then the owner was always liable. Some of the cases dealt with the [915] question of whether the animal in question was a wild animal or a domestic animal. In one case — to give an idea of the complications of the law in the past — a court held that a camel was not a wild animal; it was a domestic animal. Consequently the law of scienter applied to him. The position at present is very complicated, and it is certainly an anomaly in the sense that the owner of a dog is liable, strict liability applies, if the dog attacks sheep or other animals, but he is not liable if the dog attacks a human being. This of course, does not make very much sense. There are special provisions made where a dog attacks cattle which are trespassing or attacks a human being who is trespassing. These are provided for in the Bill so as to deal with what are special cases where trespassing takes place either in regard to cattle or human beings.

There is a great deal of very interesting and complicated law involved and there has been a good deal of criticism of the present law in this respect for many years past. The changes that have been introduced are acceptable.

The remaining sections of the Bill deal with the impounding of animals and giving county council and local authorities greater power to do this rather than having to apply to a district justice. These provisions are, by and large, reasonable and appropriate. It may be necessary on Committee Stage to deal with some of the details but, in general, they are acceptable. That goes also for the increased fines for allowing animals to stray on roads. They are going to be increased and, again, I think it is necessary in all the circumstances to increase fines to discourage, as far as possible, allowing animals to wander. Sometimes those animals are not very quiet and because of lack of food and so on may be rather vicious in their behaviour and can easily do damage not only to property but to children. In general, the Bill is acceptable. There will be details on Committee Stage which can be discussed in greater depth but, in general terms, the changes are ones which were necessary.

[916]Mr. Durcan: Information on Patrick Durcan  Zoom on Patrick Durcan  I, too, welcome the Bill which amends the law in certain important respects. It amends the common law and the statute law in relation to the ownership of animals, the damage which an animal can do and the duty which the owner of an animal has to the public at large. At the outset I should like to join with the Minister in complimenting the Law Reform Commission on producing an excellent working paper dealing with civil liability for animals in 1977 and, again, for producing an excellent report in 1982. It has become fashionable in certain quarters to criticise the Law Reform Commission for the slow progress in relation to matters emanating from their office, but it is interesting to note that in this House in recent months we have put into legislative form many matters upon which they have deliberated. We recently enacted a Bill dealing with the age of majority which followed upon an excellent report and we are now dealing with legislation which follows upon the working paper and the report of the Law Reform Commission dealing with the law governing animals.

I am glad it is the Minister of State who is present when I am making those comments, because we are all at the moment considering the Law Reform Commission's views on other matters in which she has got a particular interest and other matters in relation to which she has published a draft Bill.

I should also at this point like to make reference to another matter. I speak not merely as a Member of this House but as a member of the Joint Committee on Legislation. I want to express disappointment to the Minister of State at the fact that her Department failed to respond in any adequate way to the request by the Joint Committee in relation to this issue. One of the duties of the Joint Committee on Legislation is to consider Law Reform Commission reports, and about 18 months ago the Joint Committee embarked upon a consideration of the report dealing with civil liability for animals. At that time the Joint Committee sought from the Minister's Department views on the report but did not get any positive [917] reply. The first the Joint Committee learned of the draft Bill was through the Irish Farmers Association, who had received a memo from the Department indicating the departmental proposals which were then in existence. The matter to which I refer has been the subject of correspondence between the Chairman of the Joint Committee and the Leader of the other House, Deputy John Bruton. I hope that when the Legislation Committee deal with other Law Reform Commission reports they will get a better response from the Department of Justice so that they can deal with the reports in a more meaningful way.

The Bill makes three basic changes. Firstly, it imposes a duty on animal owners to prevent animals from straying on the roadway. Secondly, it imposes a new duty on dog owners and, thirdly, it deals with the question of the impounding of wandering animals by the gardaí or the local authority.

Section 2 which deals with the duty to take care to prevent damage by animals straying on the public roads introduces a very welcome reform. In doing so I am sorry that the Minister, and her Departmental advisers, did not examine more carefully the drafting used by the Law Reform Commission in their draft Bill in introducing the basic change. The wording used in the Bill is rather clumsy. The change which it seeks to introduce is stated in rather negative terms rather than in any kind of positive language which the Law Reform Commission used. Section 2 (1) can be difficult to understand on a simple reading. It states:

2. (1) So much of the rules of the common law relating to liability for negligence as excludes or restricts the duty which a person might owe to others to take such care as is reasonable to see that damage is not caused by an animal straying on to a public road is hereby abolished.

The wording used by the Law Reform Commission in their draft Bill was much simpler. It stated that for any damage caused by an animal, any person who is a keeper of the animal is liable for the [918] damage except as otherwise provided in sections 5 to 9. That is easier to understand, and I wonder if the Minister will consider looking at that aspect before the Bill is passed by both Houses.

The change which section 2 essentially brings into existence is a very good one. In 1985 our roadways are used increasingly by motorists, pedestrians, joggers and by people other than those who are drovers of cattle or sheep. The balance has to be changed somewhat. It can be difficult to explain to a motorist who injures an unattended animal on the public roadway that he is, subject to proof, responsible for the damage done. It seems to be absolutely anomalous that the onus should lie against somebody using the roadway for the essential purpose that roadways are now used, namely motorised traffic.

I am glad the Minister followed the exception suggested by the Law Reform Commission provided in subsection (2). It deals with areas of land where fencing traditionally is not customary. In West Mayo where I come from a lot of land on the mountainside is held in common by a number of owners and it would be unreasonable that such land should be fenced.

Vast tracts of land would have to be fenced by a considerable number of people. Leaving aside the actual difficulty of doing it, there would be the added practical difficulty that so many owners would hardly agree on the type and the nature of fencing. I am glad that areas where fencing is not customary should be excluded. That is something that is very welcome and very good.

When this Bill is enacted the Government should bring to the notice of the farming community the nature and effect of the provisions. I am quite sure that the farming bodies will do that, but the Government should also do it. When the Joint Committee on Legislation were considering this matter they received a letter from the Irish Insurance Association, and that letter dealt with the whole question of public liability insurance held by farmers. I will read from that letter dated 13 July 1984 from the secretary of [919] the Irish Insurance Association to the secretary of the Joint Committee on Legislation. The third paragraph reads:

However, one member, the F.B.D. Insurance Co. Ltd., while it likewise has no statistics on which to base a reliable estimate, nevertheless feels that an increase in the order of 200 per cent in their farmers' public liability insurance rates would be required to cover the probable increase in claims costs. For your information we would mention that the average premium for farmers' public liability insurance is in the region of £25-£30.

This is something to which the farming community will have to address themselves. It is something that the Government should bring to their notice, and it is certainly something that the farming associations should consider.

Section 3 deals with an amendment to the Dogs Act, 1906. As Senator Ryan said, no dog from here on in will even have his first bite. We have a problem here with regard to our dog population. We have an excessive dog population. As the Minister said, very few dogs are licensed. We have an increasing problem of stray dogs, and not merely in the cities and larger towns, but also in the smaller towns and villages. There is an increasing problem with stray dogs. These dogs have become a menace; they have become a danger. I would like to see some mechanism being introduced to deal with stray dogs.

Furthermore, considerable damage is being done in rural Ireland by stray dogs. In the part of the country that Senator O'Toole and myself represent we had the sad experience recently where a farmer lost 87 ewes which were driven into a river at night by stray dogs. The investigation of that particular case disclosed that there was no situation available whereby compensation could be provided for that farmer. That damage would not have occurred if there was proper control on dogs in rural Ireland.

This is a Committee Stage point, but I will mention it now. The Minister stated:

[920] The law has provided, since 1906, that there is strict liability where a dog injures cattle or sheep. In my view, it is appropriate that this strict liability should be extended to cases where dogs attacks persons.

I take it that Section 3 (1) is simply a re-enactment of the section in the 1906 Act which introduced a strict liability initially. If that is so, the new subsection (1) deals with damage done by dogs to any cattle — not to any animal. It would appear, therefore, that excluded from that is damage done to any sheep. That is a point the Minister might respond to when dealing with this debate. It is something that would worry me, certainly on the initial reading of that section.

The Bill also proposes to update the rules dealing with pounds and the statutory provisions regarding the impounding of wandering animals. I certainly welcome the update provided there. I also welcome the fact which the Minister mentioned in her speech that only larger animals will be impounded a future. It is in that regard that the section provides for the impounding of animals. “Animal” as defined by the Bill simply means a bovine animal, horse, ass or other equine animal, sheep or goat. My understanding of the 1851 Act is that it provided for impounding, among other things, of mules, asses, bulls, cows, bullocks, heifers, pigs, calves, sheep, lambs, geese, fowl or goats. The Minister has excluded the goats and the fowl and they can rest easy tonight.

I do not agree with the point the Minister's makes that there is an adequate provision of pounds in the country. Certainly, in the west of Ireland there are very few pounds. I know of two derelict pounds and there is a problem regarding the impounding of animals. It is easy to speak of private pounds or public pounds, but if a pound does not exist within a reasonable distance of the place where the animal is found then a real problem exists, and the provisions of this Act will not have very much effect in that particular area.

[921] Section 7 is the section which provides for miscellaneous amendments dealing with fines. I welcome that. I would like to see the level of fines in relation to the 1935 Act increased to £1,000 in each case. Five hundred pounds and £750 are a little on the low side. I would like to see in matters of this nature a standard level of fine. For a summary convinction a fine of £1,000 would not be unreasonable.

Section 8 of the Bill deals with certain amendments to, among other Acts, the 1851 Act. It provides for the repeal of paragraphs 7 and 8 of section 19 of that Act. Reading section 19 of the 1851 Act it is difficult to see how the remaining subsections can stand on their own. I have a section before me and I would like to know if the Minister feels if the section as it stands is adequate.

When speaking of the 1851 Act, I must express a certain amount of regret about another matter. If we get the opportunity of debating this Bill on Committee Stage I shall be putting down an amendment. Take section 20 of the 1851 Act. That is one of the most practical sections available to somebody who is suffering from a wandering animal problem. That is the section which gives a district justice power to make an order requiring that somebody repair their fences and if they do not, then the aggrieved person can repair the fences and make the cost chargeable against the offending party. It is a procedure, however, which is based upon a complaint being made and therefore upon a trespass summons in the District Court.

In the eighties by virtue of the nature of trespass as defined in that provision, it is not an effective provision. I would like to see the Minister introducing an amendment to section 20 of the 1851 Act to allow the provision be used in any case where a party has recovered damages in a civil action for trespass as against an offending party. That is how, in practice, the matter is dealt with in the District Court in rural Ireland. If that simple amendment were introduced to section 20, it would made section 20 a very effective section for dealing with the kind of problem we are talking about.

[922] Overall, I welcome the Bill. I commend the Minister for dealing with the Law Reform Commission proposals in a very objective way, and I hope that the points that I raised will evoke a response from the Minister and that this Bill when enacted will become an effective law.

Mr. M. O'Toole: Information on Martin J. O'Toole  Zoom on Martin J. O'Toole  I welcome the Bill. At first glance I felt it was a Bill that was orientated towards where the trouble lies rather than towards the nation generally. I would see the Bill as a Bill specifically for the control of itinerant horses in builtup areas like Dublin, Limerick and Cork. I also see it as a Bill directed to areas, where there is a great number of dogs with no owners, located also in the cities. For that reason it would be very simple to implement it either in Dublin, Limerick or Cork or the bigger areas where there is the high density of stray dogs without owners and where there is a high number of horses where owners have no land. My first impression of the Bill is that it is geared to deal with a major problem arising in the cities in regards to dogs and horses. It is not as simple and will not be put into operation as easily, whether by the gardaí or the local authorities, in the rural parts of the country.

Senator Durcan pointed out the restricted areas where there is open fencing. I can see an even greater dilemma in the farming areas where there are genuing people with land adjoining roads, with reasonably good fencing who will be caught under this Act through no fault of their own. This would be a great injustice. I do not think the Bill is designed to catch this type of person. It is designed to catch the itinerant who has no land and must use the “long acre” to graze his horses.

I can see a grave problem arising down the country when you try to change the responsibility, now on the user of the road, over to the owner. Heretofore, it was the user of the road who was reponsible but now the land-owner will be responsible. There will be the difficulty of trying to prove in court how the animal appeared on the road. Ownership may be established, but if an animal strays on to a man's land from a commonage and [923] then on to the road, is the owner of the land adjoining the road then responsible? From my experience this Bill will be like a cemetery for the judiciary, trying to resolve problems and bring about justice as regards who is responsible for the damage done, whether it be to people or property.

The Bill should have provision for sufficient finances to provide the additional dog homes required and additional pounds if there are to be proper enforcement. Local authorities are unable to build even one dog home in Mayo because there are no finances to do so. It is necessary to provide in the Book of Estimates a fairly substantial sum if the Bill is to be supplemented. That will take many years. Like the criminals going to Spike Islands, there is no sense trying to bring cases against itinerants if there are no pounds in which to put the animals. We do not have the pounds at the moment and there is no provision in any part of this Bill, or in the Finance Bill this year, to provide money for this purpose. The cart is being put before the horse here when there is no finance being made available. It will create unknown problems for the gardaí and the local authorities who try to implement it. We have a big problem with horses and dogs without owners. There is fierce marauding of sheep by dogs along the Wicklow Hills because of the close proximity of the city of Dublin to Wicklow. Dogs stray out there and because they have no owners there is more marauding of sheep in Wicklow than in any other part of the country. Sheep are usually killed in close proximity to cities because there is nobody responsible for the dogs. They are hungry and they move out to the hills and the farmers' land and have to kill in order to live. This does not apply in the normal good farming area. If there is a negligence, through no fault of that particular area, under the Bill they will be hammered with this type of legislation.

While there is an exemption where land is unfenced there should also be designated areas. I know that designated areas are mentioned in the Bill, but for a [924] different reason. In my view designated areas are areas such as parks that will be designated by the local authority. There should also be designated areas for the implementation of this Bill.

The liability is being changed from the road user to the owner of the land and the owner of the animal, if that owner can be caught and identified. I could cite for hours here cases of commonages and areas where sheep stray from one county to another and are not identified until dipping or mating time and it may have strayed for one or two years before they get back to the owners. How can one define the ownership of an animal or a number of sheep that stray from one county to another and are impounded while the owner is not aware that his animals are impounded there? How can the owner accept responsibility if he does not know the sheep are in that particular pound?

I have a case very close to me at home where sheep strayed into a forest and did some damage there. When ownership could not be established they were taken to a pound in Ballina. The sheep literally starved in that pound because they did not get sufficient food; there was no ownership and the Justice could not give an order for the disposal of the animals. By the time of disposal their value had dropped considerably. They were no good for slaughter. They were only fit for dog meat at that time. This is what you will have if you have not proper organisational machinery set up to deal with what is a very elaborate problem. Farmers own 90 per cent to 95 per cent of the animals along most of our main roads. As I said earlier, many animals can come through your land and on to the public road. That could cause damage. You can take the case of a hunt where beagles are in pursuit of a fox. The hunt can come right across onto the main road and you have an accident coming off a particular farmer's land. Is the farmer along that route responsible for the damage caused or the accident or the death on that road through the beagles crossing in pursuit of the fox at that time? Is it the farmer's responsibility in that case? In my view it [925] is not. He has allowed the hunt over his lands at a particular time of year. This Bill, if it goes through, will make the farmer responsible. There is no exemption for that type of exercise.

Animals can be disturbed from time to time. Gates can be left open. You can have storm damage to fences. Sheep can be chased by foxes. A herd can be frustrated by a portion of the herd going to marts or going to slaughterhouses and the remainder of the herd trying to find their companions. Animals coming in heat from time to time usually stray on to roads. No matter what fencing you have you are going to have this type of occurence.

Wild animals, that are not the property of the land owners, are not mentioned in the Bill. I refer to deer, foxes and badgers and other animals that may stray onto the road and cause damage. I did not see any provision in the Bill for animals such as mules. They are called equine animals — jennets — but they are not named in the Bill. There are a number of animals that are not included in this Bill which stray from time to time and are used by itinerants. I would look to see a young garda out of Templemore or the bangharda trying to differentiate between a mule and a jennet down on the side of the road when they are impounding these animals and trying to get them away to the pound, if they are not named into the Bill. They could be additional equine animals that should be named as the type of animals that can cause considerable damage because from their nature and breeding they are much wilder than the horse. They are bred to be wild and they create a lot of damage.

We should examine this Bill on Committee Stage. As I said at the outset, I welcome the Bill for the areas that it was intended for, but it is a national Bill. It will affect the whole nation. I am sure many genuine farmers will be caught up in the net. No farmers will allow his animal out on the road. Mearing fences should be properly up to standard especially along the main road. If grants were available for proper fencing along main thoroughfares and especially along national [926] primary roads and county roads, that would eliminate a lot of the damage and straying. From time to time farmers have this trouble but it is through no fault of their own but because of the reasons I mentioned.

I have spoken about the powers of the Garda to impound, and I will not go into it again. The detention period for animals leaves much to be desired. I know several pounds where there are no proper feeding facilities available. Feeding can be very limited in most cases. It is just a matter of keeping the animals alive from day to day until such time as an order is made for their disposal or for the owner to come and collect them. Sometimes the animals have deteriorated so much that it would be unwise for the owner to identify them or to accept responsibility for ownership because he would pay more for their pounding and for their transport than the animals would be worth. That would encourage the farmers not to come and take their animals out of the pound because they have deteriorated so fast that they would not pay for the damages that would have been caused by impounding and for transport.

The Bill is well intended. It was designed to catch the people who break the law most often. Unfortunately, if you go into it technically, there will be many farmers who will be caught out. For example, if you take a farmer putting beet on the road and he attracts stray cattle to that beet heap that is strewn all over the road and if that causes an accident is it the farmer who owns the beet or the farmer where the beet was grown who is responsible, if he has a rented tillage farm? It is a technical problem, and we will have to examine it on Committee Stage.

If you talk about turbary rights, where a man has some turf stacked along the road and animals come along and scatter that stack of turf on to the road and cause an accident, is the Land Commission who rent the bog to the turfcutter or to the farmer responsible or is the farmer who owns the turf responsible? There are many cases that could be cited to bring in technical, legal argument. I believe [927] and I am sure the two Senators who have spoken before me — two legal men — will appreciate that this is going to be a nightmare for the Judiciary and a nightmare for the legal men to interpret. Who will be responsible when you change the responsibility on to the owner from the user of the road? As one who has been driving all his life, I know that stray animals on the road are a danger to the public. That does not give the right to the person using the road to run down any particular innocent animal whether it be a dog, cat or whatever that comes across his path while driving. It does not give him the right. It would appear that when this Bill is passed he can get away without any liability whatever.

The Bill is transferring the liability now from the road user to the owner of the land along the route. It gives a free run to the people on the road. These may be the people who are hijacking cars at the moment and joyriding. They are being let off the hook on this one. There are many technical legal amendments that should be included before this Bill goes into Committee Stage. I hope that it does not create too many problems for the farming community. As I said at the outset, no farmer wishes to have any of his animals straying on the road. It is not good for the animals. It is not good for the farmer to have them straying on the road. This Bill will tackle this.

I see another weakness in the Bill as regards itinerants, where the fines are increased from the old 50 pence that we had for straying animals to £150, to £300 to £500 now. It is alright to increase the fines, but how can a fine be collected from an itinerant? It cannot be done. They are not paying the fines at the moment when they are low. It would be impossible to collect fines from itinerants anyway because they move from place to place. It is very hard to track them down at collection times. Therefore, I cannot see that that will be a deterrent which would stop them having their animals on the road. They will not be paying the fines because they will not be there when the fine has to be collected. They will [928] have moved on. It is very hard to identify them in new locations for collection purposes.

I hope the Bill does not run into heavy weather in its implementation. People who have short pieces of land unfenced intermittently along the west of Ireland roads, as most of the west of Ireland Senators know. This can create problems. I know land that is fenced by the tidal waves in and out each day. When the tide goes out there is no fencing and when the tide is in it is an island. If animals stray from that type of environment onto the public road who is liable? The implementation of this Bill will be tricky. I believe the Bill was intended to curtail the dangerous situation that obtains in the cities, especially with dogs which have no ownership and with horses that have no land to graze on.

Mr. Hourigan: Information on Richard V Hourigan  Zoom on Richard V Hourigan  I would like to welcome this Bill and to compliment the Minister and all concerned in bringing forward this legislation, which indeed is long overdue. At present there is an urgent requirement for a Bill of this type to cope with the various aspects that are set out in the Bill as objectives to be tackled. It has been stated—and frankly it is the case—that there are particular urban type areas that the Bill would have greatest relevance to in the years ahead. For example, the city of Limerick, the city of Cork and, indeed, the city of Dublin are overrun with stray animals — stray dogs, horses, and so on. Perhaps even cities and towns smaller than Dublin have an even greater problem in comparison to their size and in comparison to the numbers of people involved. I know how extremely serious a matter like this is in Limerick city and its surrounding areas where there are virtually thousands of stray animals going on a continual basis through the streets of the city, and particularly in the suburban areas. The situation exists there which is no different from other fairly major centres of population where persons without land are effectively farming, or endeavouring to farm, through the keeping of horses in particular.

[929] This is an extremely serious and dangerous hazard to the public, to young children in suburban areas and, indeed, in the centre of cities and towns, and also to motorists and to people generally who would have contact with these stray animals. These stray animals are not like the ordinary farm type animals. They are animals that have suffered hardship. They have been knocked around, rebuffed and so on and as a consequence it is their character to adopt a fairly aggressive approach to any confrontation that they may meet with. For that reason, I would like to stress for the benefit of the Minister and the Minister of State, who we are glad to have with us, the fact that the real result that we would like to see from this Bill concerns the handling or dealing with the serious problem of these stray horses and dogs in the towns and cities and, of course, in the country areas also. I would emphasise that the greatest problem exists in the urban areas.

Unfortunately, the present legislation is in no way adequate to cope with this very serious situation. There can be a situation where in small gardens and lawns in cities and towns ten or twelve horses can appear and where in many cases, the householder is unaccustomed to animals and is scared. Children run the risk of being seriously injured. The safety of human life must be of paramount importance in all our thoughts. There are other aspects and dimensions to this Bill also, but the safety and protection of human life against injury is very important.

Apart from children playing in the streets and in the various parks near their homes, the motorists stand an extremely great risk of being injured or killed by having a collision with stray animals on the road. As we know the law as it stands places the blame on the driver of the vehicle. The owner of the animal, if traceable at all, is exempt or immune from the result. My understanding is that the owner of the animal can, in fact, sue the driver of the vehicle for the loss which he has sustained. This is a most important aspect of this Bill. It cannot be overstressed. People generally will be very [930] appreciative of the initiative shown by our Minister and all of us in bringing in this legislation which, through its various details and aspects, will combat that very difficult position which currently exists.

We have had reference to the special Inter-Departmental committee which has made a report on the whole position vis-á-vis the control of dogs. It is extremely urgent that some positive measures should be introduced to control dogs. We realise that within this Bill there are certain provisions for dog control, but perhaps the special interdepartmental committee has aspects of dog control as well that could, to a certain extent, be embodied in this Bill. Unfortunately, figures tell us that on an annual basis something like 16,000 sheep are attacked and killed each year by marauding dogs. It is extremely frightening to think that we have that number of sheep killed each year by stray dogs, some of which perhaps not having strayed very far from home. When dogs get together this type of activity takes place. That brings home the need for the control of dogs.

I share some of the concern expressed with regard to ensuring that while this Bill does achieve the desired purpose for which it was intended, that is, to ensure that we eliminate or reduce significantly stray dogs and horses in the towns and cities, in the suburbs of these areas, and also in the country areas, that we make certain that we do not overlook in any way the position of the honest-to-goodness stock keeper.

One point that was not raised — and I do not see it in the Bill either and I would like to pose this question to the Minister and it can be dealt with on Committee Stage — is this: what is the position with regard to stock being driven on the road? Anybody will know that while it is 1985 we still have a considerable number of stock being driven on the road. I am not talking about the old system of the droving of cattle for ten or 15 or more miles. I am talking of persons, perhaps, whose farm is divided by road — sometimes it is a main type road — and each morning or each evening, or both, these farmers have to use that road for the [931] animals crossing from one side to the other for milking purposes, and so on. That is one aspect. I think it is extremely important that the owners of the stock which would be driven carefully should not find themselves in an extremely vulnerable position with regard to liability. That is an aspect that I do not see covered here. I am sure there is an answer for it. I am sure the Minister will be able to take that matter and respond to it at the appropriate time.

I wholeheartedly agree with the raising of the level of fines from the antiquated figures of £20 to £500 and from £50 to £750 because these lower level fines were not a deterrent. What we are talking about here is making certain that the deterrent is great enough to ensure that people will not have stray dogs, stray horses, stray bovines or anything else on the road causing serious damage to human beings in the first instance and, indeed, in the second instance damage to property. Property, like gardens and other areas, can be severely damaged by the intrusion of stray animals from time to time. The increases in the fines are welcome, and also the pound charges which were listed by the Minister. They are nominal to say the least, I am pleased to see that these are going to be adjusted to a realistic level for the future. All this will help the objective inherent in the Bill, which is to make certain that cows, horses, asses, sheep, goats and so on are not straying and causing damage. This is extremely important.

On the question of liability, I feel that Committee Stage will reveal quite clearly what precisely liability is in this context. There is no way if an animal was forced into one person's land by a hunting operation or whatever, and that animal got from that land on to the main road and was then involved in an accident, that the owner of the land from which the animal had immediately left would be responsible. I do not think that could be sustained. I am quite satisfied that there will be appropriate provision in the legislation to take account of that kind of anomalous situation, as I would regard it:

[932] We have the other major problem with regard to the position of farmers. Fences have been referred to in the Minister's statement and also in the Bill. It would appear to me that a fence is meant to keep an animal from straying on to the road. I submit that the best fences at times are not adequate to serve that purpose. There are various circumstances of animals taking fright. Many situations can cause animals to go through what would seem to be fences that were quite adequate to meet the needs of keeping these animals off the public highways. That is something that we will welcome hearing more about on Committee Stage. In addition to the position of fencing not serving its full purpose when animals take fright or, indeed, when animals are in heat, there is also the position when gates can be inadvertently left open by somebody passing by or, indeed, intentionally by somebody not wishing the person very well and then the animals stray on to the road. One wonders whose responsibility that is. I know that if that kind of situation could be proven it would be a civil case, but that kind of situation can rarely be proved. What can be proved is that the animals are on the road and could be involved in a major accident costing a great deal of money and putting the owner of the animals to great expense. The Bill was not intended for this purpose, but it is one of the side effects that could develop from the Bill if the appropriate provisions were not written in.

There is not much more I wish to state on this. There are quite a number of points to be appropriately made on Committee Stage. At present, in certain areas the most serious factor is that of large herds of horses straying on the roads. I have seen them in the surrounds of Limerick city. The same can be said of dogs. Having come to grips with that situation the next step is to ensure that the genuine stock-keeper is not penalised. There are two types of person. There is the one who is bugging the system and using the position that exists, the void in the existing law, and farming without any land at all. He knows he is [933] immune to being severely caught. There is the other type of person, the honest-to-goodness stock-keeper. We want to marry the situation to make certain that the absolute offender is brought to justice and that the person who is not committing an offence but who could well be the victim of circumstances is not put at risk. This is important.

Finally, I would like to state that the Minister is deserving of our congratulations for taking this legislation quite quickly through the Dáil and now to the Seanad. I would like to think that everybody here will give full and true support to the Bill. I am quite satisfied that there will be a number of questions arising at Committee Stage. I strongly commend the Bill to the House.

Mr. Kiely: Information on Rory Kiely  Zoom on Rory Kiely  There is a need for this Bill, and I welcome the Bill. There may be areas in the Bill which, if amended, would be generally more acceptable to the farming community and the general public. There are three main aspects of this Bill. They are wandering cattle, horses and dogs. Cattle do not present as big a problem as horses and dogs. Dogs cause serious problems for farmers, especially sheep farmers. While sheep farming is not as intensive in my county as in other counties, nevertheless, there are severe losses caused by marauding dogs. Sheep farmers have made a contribution to the economy of this country but they have suffered severe losses by the way of destruction to their animals. Some farmers are reluctant to stay in sheep farming and are thinking of changing over to other systems of farming because of the severe damage being caused to sheep by wandering dogs.

However, this legislation will not become effective unless there is a will to implement it. This is most important. There is no point in introducing legislation without making adequate provision for adequate funding and staff to administer it. Previous legislation made the wearing of dog collars mandatory. I wonder how effective that was. I have seen my neighbours' sheep and my own few sheep being marauded by dogs and [934] the dogs were not wearing collars. Dog licences are a complete joke. It has been suggested that local authorities should be empowered to collect dog licence fees. There is also a need for dog shelters and the appointment of dog wardens.

The Irish Society for the Prevention of Cruelty to Animals have done considerable work in endeavouring to get local authorities to provide shelters. Limerick County Council and Limerick Corporation jointly are drawing up plans to provide such shelters. They had a site to which there were objections but they now have an alternative site which will be acceptable and they are in the process of providing a dog shelter very soon, which will be most welcome indeed. Stray dogs can be brought to this shelter. It is regrettable that these shelters, due to a lack of finance, have not been provided up until now. It is important that the provisions of this Bill should include some financial aid being made available to local authorities so that essential shelters and other necessities can be provided. The general funding of local authorities by this administration leaves a lot to be desired.

Cattle do not present as big a problem as horses and dogs because the bovine species is a reasonably predictable animal. The movement of cattle on roads is generally slow and for this reason accidents caused are not too serious. Senator Hourigan mentioned cattle being driven on roads morning and evening for the purpose of milking and he wondered how the owners are protected in case of accidents. Generally the cattle are under control and very seldom cause accidents. Nevertheless, I would like to see a provision included to ensure that if an accident did occur and the people were driving the cattle in a responsible manner they would be protected. There are definitely fewer wandering cattle on the roads than wandering horses. Because of the tight profit margins in agriculture farmers do not want to see their cattle wandering on the roads, that is, if they have respect for their cattle. Of course, good farming and good husbandry will ensure that [935] cattle are properly fenced and fed on good land.

Section 6(4) reads:

In any proceedings in respect of damage caused by an animal which has strayed from land which is for the time being a designated area, the occupier of the land shall, in any case where such occupier has not given permission for the animal to be on the land, be liable for the damage caused as if he were the owner of such an animal.

I do not agree with this section of the Bill. It would be unfair to penalise the owner of the land on to which the animals strayed if the animals were not his property.

On the question of fencing, a farmer can have proper fencing and still it can be damaged. Fences can be damaged by the hunts. Hunts are organised in my county and in other counties and while the majority of these hunts' people are gentelmen and are very fair, there are exceptions. I have seen hunts' people driving cattle on to the road and cutting barbed wire fencing. There is also the case of vandals who open gates and as a result horses and cattle stray on to the roads. It would be unfair to hold the owner of these horses and cattle liable in such circumstances.

Wandering horses on the roads are potential killers and must be treated as such. No legislation is too strong to resolve this problem. The majority of wandering horses are owned by landless people and therefore they cause big problems. The destruction of property by such horses is enormous. Representations have been made to public representatives about horses wandering on to their front lawns and destroying them and also farmers may find a number of such horses in a field of barley or other crop, and they completely destroy the crop. I am pleased that the fine for this is realistic: the fine for the first offence is £150 and the second offence £350. The powers of the Garda in relation to wandering horses are limited. They have been given additional powers under the Bill but will they have the [936] necessary facilities? Again, it is a question of funding.

The Minister of State stated in her speech that she was happy that the present network of pounds was adequate to deal with the existing levels of impounding. She said that in many areas the existing pound accommodation would be sufficient to cope with the increased demand when the impounding provisions in the Bill are implemented. Is pounding adequate? Limerick County Council have three pounds, in Ballyneety, Kilmallock and Newcastlewest. Ballyneety is adjacent to the city. The corporation have no pound in an area where these wandering horses are doing most damage—in Limerick city. When the Minister for Justice, Deputy Noonan, was first elected to the Dáil he received a petition signed by 5,000 people asking him to ensure that something would be done about wandering horses. It is strange that Limerick Corporation have no pound: they received a grant for this purpose and still no pound has been provided.

There are problems in urban areas and in large green areas where there are houses that are unfenced and there are also lands throughout the country which are unfenced. Driving along the Curragh, which is unfenced, you will see sheep wandering out in front of cars which can be travelling at high speed. These sheep could cause much damage to cars. Who is responsible in a case such as this?

Section 3 concerns me as it imposes strict liability in all cases of injury or damage caused to a person by a dog. The section provides that it will be no longer necessary to prove that the dog had a vicious disposition. Such proof is necessary at present before strict liability can arise; many old people living alone are most dependent on watchdogs for protection. Many people would prefer to have a dog with a fairly vicious disposition because there is a great fear of attack in rural areas. We have not experienced any such attacks in my vicinity and I hope that this will remain so, but there is always that danger. Attacks on old people are now common, particularly in [937] the west where on two particular nights several old people were attacked and robbed.

People living in isolated areas are very dependent on watchdogs to protect themselves. Strict liability means that the dog owner is liable but the amount for which he is liable may be reduced if there is considerable negligence on the part of the injured person. What would the negligence be? The person or persons coming for the purpose of attacking an old person, if severely bitten by a dog, could claim that they were not trespassing; they could plead that they were visiting and so on, but the purpose of the visit should be questioned. There should be provision in this section to ensure that people who are depending on dogs for their protection are not liable.

As I said at the outset, I welcome the Bill but I can foresee problems in its implementation at local authority and at Garda levels. There are anomalies in it and I hope that these will be resolved and that there will be the will to see that it is administered to the last letter of the law.

Mr. Fitzsimons: Information on Jack Fitzsimons  Zoom on Jack Fitzsimons  I welcome the Bill in so far as it will deal with the problems of straying animals and help to contain the serious problem which we have and which is increasing. I have read the debates in the other House and I have listened to the contributions here this evening and there is nothing new that I can usefully add to what has been said. My contribution will amount to a few disjointed comments, which nevertheless, will be relevant.

When animals are left to wander over a long period without food or attention from their owners it must amount to cruelty. Dogs are left to wander over a long period and they do not have any base or owner. Some of the larger dogs, Alsatians and so on, must present a danger for children. All those dogs should be muzzled.

In passing, I would like to state that in the area of coursing I have often wondered why the people who are opposed to coursing have not suggested that muzzles be used on the greyhounds. The [938] objection is to the killing of hares. People who are involved in the greyhound business tell me that to have a muzzle on a dog does not mean that it will not chase a hare in the same way as it would without it.

The Minister of State spoke about liability for personal injuries caused by dogs and stated that inquiries from insurance sources indicate that the additional premium required would not be a significant amount. This is so, but, nevertheless, it is hard to envisage how people, and there are so many people, who do not license their dogs would go to the trouble of taking out an insurance policy. I believe it should be done, perhaps by legislation or by regulations in order to make it mandatory on people who own dogs and take out licences for dogs, to take out an insurance policy.

The Minister also stated that in many areas the existing pound accommodation should be sufficient to cope with the increased demand when the impounding provisions in the Bill are implemented. Further on the Minister stated that there have been few complaints about the operation of the present statutory provisions with regard to impounding trespassing animals. The reason that there have been few complaints is that the system has not worked satisfactorily at all, because in Kells, my native town, for example, there was a pound at one time, but this went into disuse. There certainly has been no pound there for a very long time, and I would imagine this could apply to many other places.

The increases in the fines are very substantial and I suppose they are necessary, but with regard to allowing an animal to wander on the public road and the very heavy fine for turning animals loose on the public road, I remember a few years back I was looking out my window one morning and about 30 big bullocks came into the back garden and in a very short while they created havoc. The only way I could deal with them was to turn them out on the public road because I could not contain them in the garden and I could not turn them into somebody else's garden. In fact, maybe somebody next [939] door put them into mine or in trying to get them out they went into mine. In that situation I can see a problem. I can certainly see a problem where animals break into somebody's property and it seems that the owner of that property would be committing a serious offence to turn the animals out on the public road. So perhaps that particular area might be looked at.

With regard to liability, this must be a very interesting area for lawyers, because it was brought to my notice some time ago that a farmer was sued for damages because somebody who went into his land tripped across a furrow in the land. The person who went in on the land was not entitled to go in. He was trespassing and apparently he had got no permission to go in on the land. But the farmer was liable in that situation where somebody had gone into his land and tripped and injured himself, broke a bone or whatever, on a furrow. That seems to be an intriguing area of liability and, of course, I realise there are different dimensions.

Also with regard to somebody calling to a house being bitten by a dog I am not being bitten by a dog I am not altogether clear about the Bill in this respect. For example, if somebody calls late at night to a house and has no particular reason for calling to the house and possibly would be trespassing or maybe intending to commit a criminal offence, what is the situation? At the present time I know there are many old people living in rural areas and they keep watch dogs for protection. I believe the postman does not have to deliver a letter if there is at a house a dog which may be considered dangerous.

I have noticed in the Phoenix Park, too, over a number of years, animals killed over night by vehicles probably travelling too fast. The position there is not altogether clear to me. I know there are special provisions where fencing does not apply, but there is a speed limit there and if somebody is exceeding the speed limit is he liable? Who can prove he was travelling too fast?

Also with regard to injury and damage to sheep, this is a very serious problem [940] even in my own town, next door to my house over a number of years, I have seen a dozen sheep killed in the field by wandering dogs. So it is very serious. In that situation is the owner of the sheep empowered to put down the dog or dogs? I do not think that is clear from the Bill.

The problem about fencing arises in many cases, but in situations where it would be serious to let animals wander into a place, farmers make sure that these places are adequately fenced. One place that comes to mind is the old graveyards, churchyards or cemeteries as they are called now. In the country they still go by churchyards or graveyards. I remember on one occasion a committee in charge of a graveyard making an application to cut a yew tree in the graveyard and permission was forthcoming. Then somebody told them that one of the reasons to have the yew tree in the graveyard is to prevent cattle from coming in, because the yew tree is poisonous. In that situation the adjoining farmer would make sure that the fence was adequate to prevent cattle wandering in.

In my county of Meath, and I believe in other counties, there are public parks for cattle, cow parks. In county Meath these are administered by the County Council, and the people of the locality who have cows, bullocks and calves are entitled to get a number into these parks. Now in that situation who is responsible? I am glad that goats are included, because from personal experience I know that goats are the most difficult to control and indeed goats in the past have been the cause of serious rows in rural communities.

Also could I ask the Minister what is the situation if cattle escape indirectly on to the public road through a meaning fence? As everybody knows the meaning fence is the subject of considerable litigation, and in a situation where animals did not break directly on to the road would there be some liability for the farmer who was adjacent to the mearing fence? This is, by and large, an agricultural country, and I think people driving through it, particularly in the rural areas, should realise that there is always the danger of [941] loose and wandering cattle. Of course, at present everybody seems to be in a hurry. Even inside the urban area where there is a 30 mile limit in many instances people are not prepared to keep to those limits. There is the 50 mile limit outside that. I am not a fast driver but driving at 50 miles an hour frequently I am passed out by other vehicles.

An Leas-Chathaoirleach:  As it is now 8 p.m. may I ask you to move the adjournment of the debate?

[942] Debate adjourned.


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