(Limerick East): Deputy Hyland has put the case very well in his contribution. As I told him, section 5 on the point we are debating now makes no change in the existing situation. It is not intended to change that situation. Therefore, section 5 is not putting any unnecessary expense or exposure on the private property owner. It is simply leaving the existing law as it stands. The Deputy's amendment which he moved and was debated the last time the debate took place here does not deal with the point now being debated and is merely a restatement of existing law. If an animal wanders from private property on to other private property from which it wanders again subsequently on to the public roadway the onus of negligence lies on the original property owner, not on the property owner on to whose land it wandered before it went back on to the road, and all the Deputy's amendment does is restate that.
To come to the situation to which Deputies are directing their attention, what do you do if a cow strays into a neighbouring farm and the neighbouring farmer drives it out on to the public road? He has two options, and in practice it would work differently in the country from the way it would in the city. Restraining a large animal such as that and calling on the Garda or the local authority to impound the animal is part of the impounding process, and that option would quite well be open to somebody who had enough room to restrain a large animal. In suburban areas I can see the practical difficulty of retaining a horse on the front lawn if the whole site is one eighth of an acre. Deputy Hyland has stated this matter very clearly. In that situation if due care is exercised in putting the animal out on to the road, then the onus of responsibility reverts to the original owner of the land from whose property the animal strayed.
In regard to legislation there are only three options here. You can introduce strict liability for the action of the owner of the suburban household who drives a horse out on to the road. That would be blatantly unfair when his property has been invaded in the first instance. The next option is the other extreme. You can give absolute immunity if that person is driving it out and you can say, "OK, it strayed into your front garden and you have absolute immunity if you drive it back out". The problem there is how to get over the situation if they get the dog and chase the horse out through the front gate and it knocks a kid off a bicycle. It is obvious that no care whatsoever was taken and the action was most careless and negligent. I do not think that as a legislature we can give that kind of immunity.
The only other option is to leave the law as it stands and allow the courts to decide on it. Deputy O'Dea asked whether the right of the Garda or the local authority should extend to coming on to private property. My advice is that it would, because it would be taken as part of the impounding process that they could come on to the private property and put an animal into the pound. I do not think we can move from that. I am aware of the level of debate that has taken place about this point over a number of years. Wandering animals in urban areas is one of the chestnuts which come up frequently, but I do not know of any case, and no case has been brought to my attention, of an owner of a suburban house who turned an animal out on to the road being sued for subsequent damage. Therefore, this is a perceived difficulty rather than a real difficulty. I would like to hear from Deputies opposite if there is such a case in existence and if there is any case even where the owner of a suburban property was brought to court for subsequent damage.