,Limerick East): I move: “That the Bill be now read a Second Time”.
The main purpose of the Bill is to amend the law relating to the impounding of animals and liability for damage done by animals. It was prepared following consideration by the Government of the Report of the Law Reform Commission on Civil Libility for Animals, published in 1982. It differs in some respects from the commission's proposals and I will come back to these differences later.
The commission's recommendations, as set out in the report, were made after a wide-ranging investigation of the law on civil liability for animals both here and in other jurisdictions, the results of which were published in a working paper in 1977. The working paper has provided a wealth of information about a complex and difficult area of the law. I would like to thank the commission for the excellent work that has gone into the working paper and the final report. These are useful, indeed indispensable, documents for anyone interested in the subject. I hope that Deputies will have found the explanatory memorandum circulated with the Bill helpful in their examination of the various provisions.
I mentioned at the outset that one of the main purposes of the Bill is to amend the law about the impounding of animals. Animals wandering on the roads are a serious problem and there is a clear need to strengthen the existing law so that the problem can be dealt with effectively. One of the main inadequacies in the present law is that the Act normally relied upon in impounding wandering animals, the 1851 Summary Jurisdiction Act, does not give powers of impounding to the Garda specifically and, in any case, its powers apply in relation to ownerless animals. Therefore, I am proposing in section 4 to give the Garda specific powers to impound wandering animals, and these powers will apply even where the owner is known. For this purpose "animal" is defined in section 1 as meaning a bovine animal, horse, ass or other equine animal, sheep or goat. The powers of impounding being given to the Garda will extend not only to animals wandering on the public road but also to animals trespassing on public parks or other open spaces owned by a local authority or State authority. Local authorities are being given parallel powers to impound animals found trespassing in these public parks or open spaces.
As well as increasing impounding powers, the Bill proposes to improve the effectiveness of the impounding procedure itself. This it does by amending section 8 of the Pounds (Provision and Maintenance) Act, 1935. At present the Minister for Justice can make regulations under this section for the sale, disposal or destruction of animals found trespassing, wandering or straying, where the owner is unknown or cannot be found. An order of a district justice is required for any sale of an impounded animal. Section 7 proposes 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 that the sale, disposal or destruction of impounded animals will be carried out by order of the local authority — in this case, the county or city manager — and that these powers may be applied to impounded animals where the owner is known but fails to remove them from the pound.
The Bill also proposes to increase substantially the fines for poundbreaking and for breaches of the pounds regulations provided in the 1935 Act. These increased fines are set out in the table to section 7. The maximum fine for poundbreaking is being increased from £50 to £750, and that for breaches of the pounds regulations from £20 to £500. Under amendments of the Summary Jurisdiction Act 1851, also set out in the table, the maximum fine for allowing an animal to wander on the public road is going up from a nominal 10p to £150 for the first offence and £350 for a subsequent offence. These fines will also apply to the offence of turning animals loose on the road, where the present fine is only 50p. The present level of fines has remained unchanged since 1851.
I also intend to review the basis on which pound fees are calculated. These fees are fixed periodically by orders under the Pounds Act, 1935. The last order was made in July 1984. I will not go down through the list of fees now but Deputies may be interested to know that they include fees of £13.20 for horses and £4.05 for cows in respect of each 24 hours or shorter period. The present fees do not adequately reflect the costs of impounding and, while no decision has yet been made on what the new scale of fees should be, I do envisage a substantial increase on the present level so that they will more closely reflect the actual cost of impounding to local authorities.
I am confident that the measures I have outlined will have a major impact on the problems and dangers created by wandering animals. The increased impounding powers, together with greater effectiveness in the impounding procedure, as well as substantial increase in fines and an increase in pound fees, will cause those who have been taking advantage of the present weaknesses in the law to take a more responsible attitude in regard to the control of their animals. In the medium and long term I would hope that the effect of this legislation will be to curtail the number of wandering animals and, therefore, to reduce the need for impounding. In the short term, however, use of the increased impounding powers could cause an increase in the number of animals impounded. This may lead to local authorities in some areas having difficulty in providing the necessary impounding facilities. It would be wasteful of resources to try to meet a temporary need by opening new public pounds that might rarely be used once the legislation has had full effect. To meet any short term demand of this kind I am proposing, in section 5, that local authorities may arrange for animals to be impounded in private pounds.
Under this provision a local authority, if the need should arise, will be able to enter into arrangements with private interests for the impounding of animals by the Garda or by a local authority. The section will not be operable until regulations are made by the Minister for Justice in relation to impounding in those private pounds. The regulations will cover such matters as the fees to be paid, the provision of veterinary services, transfers to public pounds, the sale, disposal or destruction of impounded animals pursuant to an order of the local authority concerned and the disposal of moneys realised by such sales. The maximum fines for breaches of the regulations and for poundbreaking offences will be the same as those for similar offences in relation to public pounds.
Section 5 differs in several respects from a proposal in the Law Reform Commision's Report which would have authorised the Garda to impound wandering animals of any kind, where the owners were not known, with private persons willing to take on this task. Thus, under the Bill, it will be a matter for the local authority concerned, and not the Garda, to make arrangements for the provision of private pounds though, once arrangements have beem made in any particular case, it will be open to the Garda to impound animals in these pounds. Secondly, under the Bill the range of animals which may be so impounded is restricted to the categories I have mentioned. Finally, the commission's proposal envisaged that gardaí in all areas could impound animals with private persons, wheras the Bill envisages that private pounds will be utilised only in areas where the need arises, as determined by the local authority.
Another impounding provision recommended by the commission would have allowed the private detention of trespassing animals, even where the owner was known, with power to the occupier to sell the animals if necessary and to reimburse himself out of the proceeds, giving the balance to the owner. As things stand, under the Summary Jurisdiction Act, 1851, 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 public 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.
Over the country as a whole very few complaints are received about the operation of the present statutory provisions for the impounding of trespassing animals by private persons and I believe that to allow private persons to detain animals where the owner is known would not be justified and might indeed lead to bad feeling and even violence. The 1851 provision — obliging the occupier to return the trespassing animal to its owner, where known — was probably designed to avoid breaches of the peace.
Section 6 deals with animals wandering from undeveloped housing estates. I am proposing that the occupier of any undeveloped or uncompleted housing estate will be liable for damage caused by animals which stray from the estate unless he gives to the local authority and the local Garda superintendent a notice saying that he did not give permission for animals to be on the estate and authorising the local authority and the Garda to remove any such animals from it.
It is not my intention that these provisions should apply to all such housing estates. The idea is that they will be invoked only where wandering animals are causing a problem. The local authority will be in the best position to determine whether a nuisance of this kind arises in relation to a particular site. In that event, it would designate the site as a "designated area" for the purposes of section 6. This provision is intended to curb a serious nuisance which the Garda and local authorities would not otherwise be able to deal with, as the animals causing the nuisance would be on private property. Once an area has been designated, the occupier will be likely to authorise removal of the animals since otherwise he will be liable for any damage they cause.
I now come to the provisions amending the law relating to liability for damage caused by animals. These are in sections 2 and 3 of the Bill. I would like to preface what I have to say about liability for damage by animals by outlining some relevant aspects of the present law. First of all, the term "strict liability" does not appear to have a clearly defined, universally accepted meaning but in the context of what I have to say it can be taken to mean liability that rests on the owner of an animal, irrespective of whether the owner is negligent. The amount for which he is liable is reduced if there has been contributory negligence on the part of the injured person.
Strict liability in relation to animals exists in certain circumstances. These are: (1) in the case of damage done by wild animals kept in captivity; (2) in relation to a domesticated animal, where it is shown that the animal's owner was aware that it had a "vicious propensity"; (3) where dogs injure cattle or sheep; and (4) in the case of damage by certain kinds of trespassing farm animals. In other cases, the position may for practical purposes be taken to be that the owner of the animal will be held liable if the injured party proves that the owner had been at fault. There is one important exception to that statement, namely, that an occupier of land is not liable in negligence if an animal strays from his land on to an adjoining public road and causes injury or damage. In practical terms this means that, where a motorist or other road user suffers damage caused by an animal straying on to the public road, he has no recourse against the owner of the animal. This situation derives from the fact that, under the law as developed by the courts, the owner has no duty to prevent animals straying.
The Law Reform Commission proposed that the present law should be replaced by a general provision to the effect that the keeper of any animal should be strictly liable for any damage caused by it. The damages payable would be reduced if there had been contributory negligence on the part of the injured person. Strict liability would also be subject to certain qualifications where the injured party was a trespasser and it would not apply in the case of 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 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. Their approach could also be supported by arguments based on the risk theory of liability; by economic arguments which would regard injuries caused by animals which form part of a business for example, farm animals, as part of the producer's costs which should be borne by the producer rather than the innocent victim of a road accident; and lastly by arguments which suggest that in all cases, whether the animal is used as part of a trade or business or is merely kept as a domestic pet, the owner is the person best positioned to control the animal and to insure against the risk of injury that it may represent to other persons in society.
On the other hand, there is the consideration that a general scheme of strict liability would involve too great a change in one very important area. For owners of livestock it would mean changing from a situation of virtually complete immunity to what might be described as almost the other extreme, liability irrespective of fault. The proposal might also give rise to practical difficulties, for example, in relation to insurance cover, its availability and cost. Moreover, as I see it, so far as road accidents are concerned it would be anomalous if there were to be strict liability for animals but not for motor vehicles. These vehicles are much more important as a cause of road accidents, but in relation to them the law continues to apply the ordinary negligence rules. I think therefore, that, though there is a good deal of merit in the commission's proposal, it would be premature at this stage to give effect to a general principle of strict liability for damage caused by animals.
In the field of civil liability for damage caused by animals, the main practical issue is that of livestock straying on to the roads. Under existing law an occupier of land is not liable in negligence if an animal strays from his land on to an adjoining public road and causes injury or damage. The commission referred to dissatisfaction with this common law rule and it has been the subject of serious criticism in other countries. They pointed out that this immunity is out of step with modern legal developments and current conceptions of responsibility and, in particular, present-day traffic conditions. I fully agree with the proposal of the commission that the immunity should be abolished and section 2 of the Bill provides accordingly. In future the liability of the occupier of the land in such cases will be determined by the ordinary negligence rules so that all the normal criteria which determine liability in negligence will apply, as will all the defences available against a claim based on negligence.
Section 2 makes special provision, as proposed by the commission, for areas where fencing is not customary: under this provision, where an animal causes damage after straying on to the public road in such areas, a person will not be regarded as having committed a breach of the duty to take care merely by placing an animal on the unfenced land. Finally, I propose that strict liability should be imposed in all cases of injuries or damage caused to any person attacked by a dog. This provision might be described as abolishing the principle embodied in the old saying that "a dog is entitled to its first bite".
Under the present law strict liability applies in two cases where damage is caused by dogs. One of these is where dogs injure cattle or sheep. Another is where it can be shown that the owner was aware that the dog had a vicious propensity or disposition. Showing that a dog's owner knew that his pet dog had this propensity is very difficult. In other words, if a person is bitten by a dog, he would probably have to prove that the dog's owner knew that the dog had bitten someone previously. Since 1906 there has been strict liability under statute where dogs injure cattle or sheep. I am sure Deputies will agree that that is a proper and necessary provision. I think they will also agree that it is anomalous that the present law appears to regard attacks by dogs on human beings as less serious than attacks on sheep.
Moreover, the dog population has increased considerably in recent years and includes a substantial number of larger dogs such as alsatians and many that are unlicensed. There have been many complaints about personal and material damage caused by dogs.
I am conscious that strict liability would not benefit persons injured by ownerless, or apparently ownerless, dogs but no amendment of the law on civil liability could remedy this problem. However, the imposition of strict liability should tend to deter the casual acquisition of dogs and help to ensure that they are properly controlled. It may be said that the imposition of strict liability will lead to the taking out of insurance by most responsible dog owners and that this will leave them open to exaggerated claims for damage caused. It appears, however, that insurance against the risk of such damage should be fairly readily available and, since the great majority of dogs are not kept for business purposes, there should be no question of the cost of such insurance being passed on to the general public. I may add that strict liability where dogs attack people applies in many other countries.
Section 3 therefore provides for strict liability for personal injuries inflicted by dogs. This is done by re-enacting section 1 of the Dogs Act, 1906, which imposed strict liability where dogs injure cattle and sheep, and extending it to attacks by dogs on persons. Provision is made for a reduction in the amount for which the dog's owner is liable if there has been contributory negligence on the part of the injured person. Also, the ordinary rules of negligence, and not strict liability, will apply where trespassers are injured by dogs.
To sum up. As regards the civil liability aspects of the Bill, I believe there will be a general welcome for the abolition of the immunity enjoyed by occupiers of land in relation to damage caused by their animals straying on to the public road. Farmers have nothing to fear from the Bill and indeed I was glad to see reports of spokesmen from the main farming organisations welcoming it. Most farmers are motorists and I am sure they will appreciate how anomalous it would be to retain the immunity for animals straying on to the road. I believe there will also be a welcome for the introduction of strict liability for personal injuries caused by dogs and I hope it will cause the minority of owners of dogs who are careless or irresponsible to exercise more control over them.
However, the features of the Bill that will have the greatest practical impact are those providing increased powers to deal with the damage and nuisance caused by wandering animals. The Bill gives those powers to the persons who are in a position to take effective action to counter the problem — the Garda and the local authorities in the areas concerned. I am confident that when the Bill becomes law they will utilise the powers given to them for the benefit of the considerable number of people in many areas of the country whose lives and well-being, as well as property, have been damaged by those animals.
I commend the Bill to the House and ask that it be given a Second Reading.