The word, "animal, except in section 2, means a bovine animal, horse, ass or other equine animal, sheep or goat. I can understand that referring to section 3 but why is section 2 exempted? Section 3 deals with dogs.
Animals Bill, 1985: Committee and Final Stages.
Limerick East): Section 2 is excepted here because it does not define the type of animal covered. Under section 2 there would be liability for all domesticated animals and not just those on the list.
On section 2 — this is slightly related to what Senator Fitzsimons raised on section 1 — I understand from the Minister that the animal which is referred to in section 2 is a wider definition of animal than is referred to in the definition section and includes domesticated animals. In other words, it includes dogs, for example. In those circumstances what is the position, bearing in mind subsection (2) where a dog strays from unfenced land to a public road and causes an accident to cattle by reason of its presence on the road? Does section 2 apply or does section 3 apply where a domesticated animal leaves land on which it is normally placed, goes on the road and causes an accident to cattle on that road? Where is the responsibility in that regard?
(Limerick East): The scope of the immunity has never been clearly defined in common law, but it refers in general to all farm animals. That would include farm fowl for example which would come under the definition of animal whether hens, geese or turkeys. In theory it would also include a dog in so far as it is a farm animal and a domesticated animal. I would think that it would ultimately be a matter for the courts to decide, if negligence occurred, under which section of the Bill to proceed. If it was a case of a dog attacking catle on the road or savaging sheep on the road, it would be the sort of situation that has pertained up to now because there was strict liability for attacking animals anyway. What we are doing on the dogs side of the argument is extending the strict liability to people for the first bite of the dog, but that strict liability applied to animals anyway.
I will raise that matter again on section 3. Would the Minister assure the House that the use of the words "common law" in no way restricts what he is trying to do in section 2? Is there any rule of law which is not a common law rule of law relating to this matter? All section 2 does is to abolish a rule of common law. Is there any statutory law relating to this matter which would not therefore be covered by that?
(Limerick East): The intention is to deal only with the common law rule and not with anything else.
Regarding paragraph (b) of subsection (2), the interpretation of fencing could have a very wide interpretation. In one instance it may be very adequate to deal with a set of circumstances to keep animals from straying onto the road. In other circumstances the very same type of fencing may be totally inadequate. There may be a problem there because animals at particular times, perhaps frightened or in heat, may be more difficult to keep off the public road than otherwise would be the case. The definition of fencing is something the Minister might clarify. Is it a matter for the courts, or how is it defined?
(Limerick East): Obviously it would be a matter for the courts, but it would include a wider definition of fencing than we would colloquially use when using the term “fencing'. It would include not only fences as ordinarily understood but ditches whose object was not solely drainage but also the retention of animals. It would include things like catle grids. There are areas in the country which we can name and which traditionally have been unfenced. Some of them are being used as commonage, and we have to allow for that in the Bill. Again, I am sure it will come down to an individual situation where a controversy could arise to to whether land was traditionally unfenced or not. The court would have to make up its mind about it after hearing all sides of the case.
I am talking about land that is fenced and the question of whether the fence is adequate.
(Limerick East): It would include not only fences but also ditches whose objective is not solely drainage and it would include cattle grids.
On that definition some people tie their animals along the side of the road with a rope of some kind. In that case could the rope be termed a fence?
(Limerick East): No.
Again on the question of fencing, would the Minister look at subsection 2(a)(i) when he says that the damages caused by an animal straying from unfenced land to a public road, are not the responsibility of the person who placed the animal on the road in that he shall not be regarded as having committed a breach of his duty to take care by reason only of placing it there if the land is situated in an area where fencing is not customary. That is the first condition. Does that mean the rule will not apply even where somebody has fenced land and that fencing has been proved not to be accurate but is in an area where fencing is not customary? Suppose, for example, one were on the Curragh or on the edge of the Curragh — and there is no doubt that in that area fencing is not customary — but if an individual property owner within that area had fenced land, he could say, "My land even though it was fenced and I have tried to keep it fenced is situated in an area in which it is not customary to fence land." It does not say the land is land which it was not customary to have fenced but that the land is situated in an area which is customarily not fenced. Has that matter been considered?
(Limerick East): I am informed that the provision will apply in that case but again, of course, the courts would have discretion.
The exemption will apply?
(Limerick East): Yes.
My understanding of the position of fencing at the moment is that if animals have trespassed on my land or if they trespass on my site, it is my duty to fence them out rather than the owner's duty to fence them in. It seems that this is being changed here. In relation to a third party who might get into difficulties by putting animals off his premises, that difficulty could be overcome by using the word "owner" instead of "person". It seems also in that same subsection (2) (i) where there is reference to a public road and animals straying on to the public road, as I mentioned in my contribution on Second Stage, damage is also caused in situations apart from animals straying on to the public road. I mentioned specifically an old cemetery where monuments and headstones were damaged and there was danger to a 12th century cross. In that situation could the difficulty not be overcome by referring to fencing cattle on the land or preventing them getting off the land on which they are confined or grazed rather than on to a public road? It would broaden that section.
(Limerick East): The existing position is that there is liability on the landowner who allows his animals to wander on to a neighbour's land. If your neighbour allows his cattle to wander on to your land you have a case against him. He is liable now. The immunity only applies to animals wandering on to the road. There was never immunity for wandering on to a neighbour's land. In fact there is liability. The obligation is not on you to fence cattle out. It is his obligation to fence cattle in. Otherwise he is liable when they wander. All that is being done here is to remove the traditional common law immunity which brought about a situation that if animals wandered from land adjoining a public road on to the public road the owner was immune from any liability for any damage caused. We are moving it in to a middle position now where the same laws of negligence will apply and the courts will test the relative negligence of the motorist and the owner of the cattle that wander out.
The further step which the Law Reform Commission were proposing was that we should go from a situation of immunity to a situation of strict liability where the owner of the land would be absolutely liable for animals that wandered on to the road. We are going to the middle position but not to the position recommended by the Law Reform Commission.
In the event of the Minister finding that the provision with regard to unfenced land is being used to circumvent the general position, would the Minister bear in mind a suggestion that there should be an obligation on people to register land as being unfenced land?
(Limerick East): Yes, if it is found that there is some way of getting around the provisions of the Bill, I will keep that in mind.
Line 24 refers to the injury done to cattle. Would it not extend the Bill there to use the word "animals"? Cattle seems to exclude sheep, goats and horses.
(Limerick East): We are only making one change here in the Dogs Act, 1906 and that is to deal with the point which is often expressed. You have heard the phrase a dog is entitled to one bite. That was a kind of shorthand way of explaining that one had to prove that a dog was vicious before one could hold an owner liable for an attack made by a dog. The only way one could prove the dog was vicious was to prove that he had attacked before. The owner had a free run so far as the first bite was concerned but he became liable for the second one. We are bringing about that change by amending section 1 of the Dogs Act, 1906, but we are doing it by re-enacting the whole section. In the definition of that Act the term `cattle' has a much wider meaning than what locally we would take it to mean. It includes horses, mules, asses, sheep, goats and swine. These provisions are in sub-section (7) so what the Senator has in mind is included.
Line 33 states that unless a person proves he was not the owner of the dog at that time he shall be liable. It would be relatively easy to prove ownership by showing a receipt for a payment of a licence but it might be very difficult to prove that somebody did not own the dog at the time of the attack. Also it would seem that in that situation the identity of the owner of the dog would need to be known. One could have a situation in which somebody would keep a dog and know the owner and they would not be liable. If they kept the dog and did not know the owner it would almost be the same condition. They would not be liable.
(Limerick East): Subsection (2) remains effectively the same apart from some minor drafting changes. Its purpose is to create a presumption that the occupier of a premises to which a dog is attached is the dog's owner unless he proves he was not by virtue of subsection (7). Premises now include land as well as houses. This rule is to apply also in relation to any particular dwelling in a house. For example, when a house is set in flats, the owner of the flat to which the dog is attached would be presumed to be the owner of the dog and the onus on him under subsection (7) is to prove he was not the owner of the dog. Again, we are making only one change but we are doing it by re-enacting a whole section of the Dogs Act.
It is a very good way to do it.
On subsection (7) of section 3 — the definition of damage — is it really necessary to include that further definition, that is, that damage has the same meaning as in the Animals Act, 1985 and this is in effect the Animals Act, 1985? It appears to me to be totally superfluous as the word "damage" within the meaning of the Bill is already defined in Section 1, the interpretation section.
(Limerick East): This defines the words “damage” and “premises” for the purposes of section 1 of the Dogs Act, 1906, and damage then in section 3 of the Bill introduces the word damage into section 1 of the Dogs Act. 1906, which will now impose liability for damage caused by an attack on a person's life.
Line 36 refers to where a dog has been kept or permitted to live or remain. Dogs are inclined to live close to where they get food. It might be very difficult not to permit a dog to stray and in that situation an innocent person could be liable under this part of the Bill.
(Limerick East): We are not making any change in that regard. It has been part of the law since 1906 and has caused no difficulty.
I understand this is taken intact from the 1906 Act but the wording here is that, "unless the person caused a dog to attack the cattle". Does that mean unless the person has set the dog on the cattle? I could visualise a situation, for example, where a farmer might be trying to get stray cattle off his land and in the excitement a dog might attack the cattle. It might not necessarily be by an order from the farmer.
(Limerick East): That relates to a farmer setting a dog on cattle, but if there were circumstances where he did not actually do that but because of the general excitement the dog attacked the animals, it would be a matter for the courts to decide whether there was an act of setting on. It has been interpreted as a deliberate act of setting a dog on cattle.
On the second last line, the word "damage" has the same meaning as in the Animals Act, 1985. Is this repetition?
(Limerick East): Senator Durcan raised the same point. I replied by saying that this defines the words “damage” and “premises” for the purposes of section 1 of the Dogs Act, 1906. Section 3 of the Bill introduces the word “damage” from section 1 of the Dogs Act, 1906, and this will not impose strict liability for damage caused in an attack on a person by a dog. The definition of “damage” being adopted in this context is the same definition as that in section 1 of the Animals Bill itself so it is not superfluous.
There is reference here to taking out of any private pound any animals lawfully impounded therein.
Paragraph (c) of subsection (5) refers to lawfully impounded animals. Does this give somebody discretion to make up his mind about whether an animal is lawfully impounded? It seems to me that if an animal is confined in a pound, it should be taken that the animal is lawfully impounded.
(Limerick East): No. It would simply mean that the impounding authority complied with the law and had the right to impound the animal.
Regarding a point I raised on Second Stage, I must again express disappointment that the drafters of the Bill did not consider amending at the same time section 20 of the Summary Jurisdiction (Ireland) Act, 1851 and in particular the provision of that section which allows a district justice to make an order compelling somebody to put up fences. That is a very relevant power and one that should be easily used, but because of the procedural problems that can arise by virtue of the fact that it is based on a complaint of trespass, there can be difficulties in giving effect to the power that is there. If it were possible to exercise that power where a decree for damages had been obtained in any court in respect of trespass, it would be much easier to make an application under that section. In practical terms it is something that should be looked at. It is a power that can be of tremendous use to farmers who have awkward neighbours who do not maintain their fences. But by virtue of the fact that it is based on a complaint — the old fashioned trespass summons — it is very difficult to use. It is something that should be examined with a view to bringing in amending legislation to deal with the situation.
(Limerick East): That is a good point. It is something I could look at. I do not know whether I will have an appropriate vehicle in the future to bring about a change. If there is ever a situation where I have some kind of miscellaneous provisions Bill which would be relevant, I will have a look at that suggestion.