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 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 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 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 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 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, 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 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 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 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 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 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.
