Like speakers from both sides of the House, I sympathise with the Minister's intention and with the intention behind the Bill. However, that intention will not be realised as a result of this legislation.
The Minister for Justice when in Opposition sent around a petition in Limerick and got 5,000 signatures to petition the then Fianna Fáil Government to do something about the problem of wandering horses. This legislation will not do anything of that kind. When the next election takes place, be it in two weeks, two months or two years, there will still be as many horses wandering round the streets of Limerick. As well as the Minister, I also represent Limerick.
Deputy Tunney referred to the community services legislation. Nothing has been done in practice in relation to that and this legislation will turn out to be the very same. As drafted, the legislation is totally vague. Without substantial financial allocation and will on behalf of the Government and appropriate authorities, the legislation is not capable of being implemented.
In his speech the Minister pointed out that the intention behind the Bill is to change the law in relation to wandering animals, particularly in relation to liability for damage caused by them. Broadly speaking, two categories of animals are dealt with by the legislation. There are the animals defined in section 1 and then there is a separate provision for dogs, the effect of which is to amend the Dogs Act, 1906, in a number of ways.
There are many problems in relation to the definition of the kind of animals referred to in section 1. The term "animal" is defined as a bovine animal, horse, ass or other equine animal, sheep or goat. The term "bovine" is not commonly used and the term "equine", which is purported to explain the term "bovine" in some way, is used even less frequently. It seems remarkable to explain a rather remote word by referring to a far more remote one. Perhaps the Minister will look at the definition of "animal" contained in section 1.
If I can anticipate the Minister's reply to a point raised by Deputy Yates, section 2, which changes the law in relation to animals wandering on to the roadway, is not confined to those categories of animals referred to in section 1. The animals dealt with in section 2, which concerns the liability of landowners for animals wandering on to the public roadway, does not confine the term "animal" in any way. The general perception of this legislation outside the House is that landowners will be liable for damages when their cattle or horses wander on to the public roadway. The effect of the legislation is that an occupier of land will be liable for damages in negligence if any of his domestic animals wander on to the public highway. He could be liable if, for example, a duck, goose, chicken or pig wanders on to the public highway. Deputy Yates encountered some confusion on that point and I am merely anticipating the Minister's reply to him.
The main section of the Bill is section 2, which purports to remove the present legal immunity from landowners for damage done by animals who wander on to the public road. This is purportedly specifically laid down in that section. However, we are prepared to argue on Committee Stage that the section is far from specific and far from clear. The relevant common law at present, which comes from British law, is the law contained in the rule known asSearle v. Wallbank after the decision of the English House of Lords which was handed down in 1947. In that case the decision of the House of Lords was to the effect that the owner or occupier of land whose land adjoins the public highway is under no duty to users of the public highway to prevent his domestic animals, which are not known to be dangerous, from straying on to the highway and accordingly he will not be liable in negligence or under any other particular legal heading for damage caused by the animals when they wander on to the public highway. This rule means that if cattle, sheep or other domestic animals not known to be dangerous go out on to the public roadway and cause an accident, the owners of the cattle or sheep will not be liable for any damage suffered by a road user, either personal damage, financial damage or damage to his property arising from the fact that those animals are on the highway.
The House of Lords decision inSearle v. Wallbank essentially is rooted in history and is not relevant to modern conditions. The decision originated from the fact that most of the roads of England were on unenclosed land when the open fields system prevailed, and its relevance has passed. The law was changed in the United Kingdom in the Animals Act, 1971, and the Minister proposes to change the Irish law on similar lines. The explanatory memorandum states:
The main amendments of the existing law which are proposed in the Bill are as follows:
(a) It abolishes the present immunity of occupiers of land adjoining the public road in relation to damage caused by their animals straying on to the road. (Special provision is made for the areas where fencing is not customary.)
Section 2 seeks to change the law in a very peculiar way. The section is loosely worded and is vague and many different interpretations could be taken. I ask the Minister to go back to the parliamentary draftsman before Committee Stage and get him to set out precisely what it is intended to change. Since this section is central to the legislation precision is essential.
When the Minister is replying to this debate will he confirm that the result of the change he proposes to bring about is that a landowner whose animals stray on to the public road and cause damage will now be liable but only if it can be shown that the animals got on to the roadway because the landowner was in some way negligent? Has the position changed from one of total immunity under the House of Lords decision to immunity which is based only on negligence?
I have been rereading the House of Lords decision and I put it to the Minister that that decision is confined to landowners whose land adjoins the public highway directly. Will the Minister tell us what is the position in relation to animals straying on to the road and are owned by a landowner whose land does not adjoin the public highway? What is the position of a person who owns land that does not adjoin the public highway but whose animals wander on to land of a person that adjoins the public highway and that get out on to the public highway through the negligence of the latter? What will be the law in relation to people who own animals but who are not landowners? The most common example was given by Deputy Doyle and by Deputy Tunney, namely, itinerants. I should like the Minister to spell out clearly what is the law in relation to those two categories: first, non-landowners whose animals wander on to the public highway and, secondly, landowners whose animals wander on to the public highway but who do not themselves own land that adjoins the public highway. Section 2 is extremely vague and loose and it does not answer those questions that will be of practical importance.
Section 2 also states that the position will be different in relation to areas where it is not customary to fence land. Apparently the areas the Minister has in mind are places such as the Curragh in County Kildare where it is not customary to fence. The position that will obtain as a result of changes brought about in this legislation will be that the landowner cannot be held liable simply because he did not fence in the land because in the area in question it was not customary to fence. However, it seems to me that the legislation leaves open the possibility that landowners in areas such as the Curragh can still be liable in negligence for damage caused by their animals that wander on to the public road. In other words, the total immunity enjoyed in the decision ofSearle v. Wallbank no longer applies here to such areas and it is envisaged that people can still be liable for negligence.
However, it is difficult to envisage an example of negligence of which a landowner is guilty because of his animals going on the public roadway in an area where the legislation specifically states that the landowner is under no duty to fence. It would be difficult to envisage a situation of ordinary negligence here. I should like the Minister to give me such an example and to confirm that my interpretation of the legislation is in accord with the Minister's intention.
Section 4 provides for giving increased impounding powers to the Garda and to local authorities. The section extends the present impounding powers in relation to the Garda in that it gives them the right to impound animals even when the owner is known. It also gives the Garda power to impound any animals found trespassing on public parks or other public spaces owned by local authorities or State authorities. Local authorities are given similar powers.
The term "public place" is defined in section 4 as a place to which the public have access with vehicles. However, section 4 refers not just to public place but also to "public road", "public park" and "open space" but these terms are not defined in this section and I wonder why. A public place means a place to which the public have access with vehicles but the term "vehicle" is not defined in this context. Can it include a two-wheeled vehicle such as a motorcycle or a bicycle? Is there any difference between a motorcycle which is mechanically propelled or a bicycle which is propelled by a human being? I remind the Minister that it is by no means unusual to encounter cyclists in public parks and because the powers are given to the Garda here will depend essentially on the definition of public place I should like to see this matter clarified.
It appears in relation to animals wandering on a public road — I must use my common sense here and assume that is a road to which the public have access with vehicles — or a public place, the Garda can act immediately to impound the animals. However, in relation to animals found wandering in a public park or in an open space the Garda cannot impound the animals at their discretion. They may do so only when requested by the local authority. The local authority who must forward the request is the authority in whose area the public space or public park is situated. This is unnecessary red tape. I know from my experience of dealing with local authorities that sometimes it is extremely difficult to get them to move even in the most trivial matter. The legislation seems to assume that emergencies or imminent or present danger can occur only in relation to a public road or a public place and that an animal wandering on either an open space or a public park cannot constitute an immediate or present danger. That is a mistaken assumption. Section 4 (2) (b), which imposes this restriction, is something that the Minister should look at and he should consider seriously taking it out of the legislation altogether. It is an example of the type of bureaucracy which tends to strangle the effectiveness of legislation of this sort. The Minister should look again at the whole tenor of section 4.
The section goes on to give local authorities this power to impound animals found wandering on these latter two places, an open space or a public park. This seems an unnecessary and unreal duplication of powers and responsibilities. It would be as well if these powers to impound generally were given either to the Garda alone, to the public authority alone or to some other body and that whatever body were given sole authority to exercise these powers of impounding would do so without any constraints, bureacratic or otherwise.
Finally in relation to section 4, who is to pay for the new powers? These new powers will cost a great amount of money if they are to be really effective. For example, it should not be forgotten that under the law as it stands the Garda have power to impound wandering animals if the owner is not known. I know of dozens of examples in my constituency where the Garda have not exercised this power. When we went to them and pointed out to them that the animal was in a certain place they did not know the owner, they had no reason to know the owner and they still did not exercise their power in that regard.
The Garda are now to be given power to impound even more animals. How does the Minister think they will be more effective when with the manpower and resources available to them at present they cannot get around to impounding what they have power to impound under the present law? How are they to impound this far greater number of animals? The present position will change effectively only if a substantial financial allocation is provided to allow the Garda and the local authorities sufficient personnel to undertake these extra duties, sufficient vehicles to enable them to undertake these duties properly and sufficient pounds to keep animals when they have rounded them up. Would the Minister like to state whether this extra finance is to come by way of increased local charges or will it be allocated from central funds? I agree with Deputy Joe Doyle and Deputy Liam Cosgrave that bringing laws in to this House is a useless exercise without sufficient financial commitment and sufficient backup generally to make these laws effective.
Section 6 is a peculiar section. It states briefly — the term "occupier" is used throughout the section — that the occupier of property in certain underdeveloped housing estates will be liable for damage caused by animals which stray from the estate provided that the local authority has designated the land as required by the section. I would like the Minister to clarify exactly what type of problem this section is aimed at. Section 6 (2), which defines the type of land to which the section relates, generally is rather vague. I ask the Minister when he is replying to tell us whether it includes a site where planning permission has been given but on which no development has taken place as yet. Up to what stage does section 6 apply? For example, does it apply where an estate has been completed and is inhabited either totally or partially but has not yet been taken over by a local authority? If it applies to that situation the Minister must answer the question: what is meant by the term "occupier" in that type of case? Does the builder remain the occupier until the local authority has taken over the estate, or does the occupier mean the person or persons who have now gone into occupation of some of the houses? Does it make any difference whether the entire estate is occupied or only part of it is occupied by the people purchasing the houses? If the term "occupier" in the case of an estate which has become partly or totally inhabited refers to the builder still, then the provision has only to be stated for its absurdity to become manifest. If the term "occupier" here still means the builder, how can a person who has built a housing estate where people must purchase houses and which has not been taken over by the local authority give power to the Garda to take into custody and impound animals which belong to the new occupants of the houses? I do not know how he can do that under ordinary law or under the Constitution. On the other hand, if the term "occupier" here means the occupant of a house — it is by no means clear that it does — what happens to the original exchanges of notices between the original builder and the local authority or between the builder and the local Garda superintendent? I would like the Minister to give total clarification of that section because it is extremely vague and imprecise. I do not know what it is aimed at, what it purports to do or what it will do in practice.
The legislation contains a separate provision for dogs to amend effectively the Dogs Act, 1906. The old position was that before and after the Dogs Act, 1906, a person who owned a dog would not be liable for any damage caused by that dog unless the dog had an inclination to do the sort of damage complained of and the owner of the dog knew about that inclination. That was the position prior to the Dogs Act, 1906, and is still the position in common law. The Dogs Act, 1906, however, imposed strict liability on owners of dogs in relation to damage done to cattle. In other words, if a dog damaged cattle the owner of the cattle who was sueing the owner of the dog for damages after the Dogs Act, 1906, would no longer have to show that the dog had the inclination to do the sort of damage complained of or that the dog's owner knew that. In other words, strict liability applied under the 1906 Act in relation to damage done to cattle and liability in negligence only applied in relation to damage done to human beings. That was extremely illogical and perhaps reflected the values of the time. The net effect of it was to place cattle on a higher plane than human beings and from that point of view a change in that provision is long overdue. I welcome the section of the Animals Bill in so far as it purports to change that anomalous provision.
However, a person can raise a number of queries. Some of them have already been raised from this side and I do not want to go over them again in relation to this section dealing with dogs. In ordinary, everyday life a dog may leave home. Is the owner of that dog, if he can be traced, to be still strictly liable for any damage done by that dog even though he no longer has any effective control over the dog? What is meant by ownership in this context? The section makes a halfhearted attempt to define ownership for some purposes but it covers only a very small part of the ground and is by no means clear. I would like the Minister to explain in a little more detail at what point ownership or, more relevantly, at what point the responsibility of an owner of a dog for the activities of his dog will cease. That is by no means clear in the section. To say the least, it seems onerous that a dog owner should be liable strictly for damage done by a dog that has left home but which has not gone into the ownership of any other person. However, if the Minister cannot find appropriate wording to change the law so as to rectify that anomaly, it would be better to leave the situation as it is. I say this because I have always subscribed to the principle that where possible the law should be clear and simple.
The section goes on to provide that the amount of damages for which a dog owner will be liable in respect of damage caused by a dog shall be reduced if the person who has suffered the damage has been negligent, that means if it can be said that to some extent he brought the misfortune on himself. That is a general principle which is to be welcomed. But the position is different in respect of damage or injury caused by dogs to trespassers. In this instance the legislation provides that the owner of the dog will be liable only if it can be proved that he was negligent. I do not have to remind the Minister about the recent spate of deplorable attacks on elderly people living alone especially in isolated areas. Regardless of the extent to which we might raise taxation or provide additional finance for the Garda, it would be impossible to police that situation adequately so as to protect those people. Consequently, we must recognise that at least to some extent they are entitled to protect themselves, keeping a dog on the premises is a well recognised method of protection. It is preferable to some of the methods that have been used in recent days for instance. That is why I should like the Minister to think about this provision.
As I read the section relating to dogs, it provides that if a person enters the property of another with intention to murder the occupier of the property and if the occupier is saved only because of the presence of his dog, he can be sued by the would be murderer for any damage caused to him by the dog. That is a deplorable provision. Perhaps a way out for the Minister would be to have a different rule whereby further criminal intent can be proved or can be presumed in the case of a person entering illegally the premises of another. Of course the illegal entering of a premises is in itself a crime but I am asking the Minister to consider the section again in the context of where there is further criminal intent.
Section 3 is confined to dogs but I would remind the Minister that the scienter rule which the section proposes to change was not confined to dogs but referred to all animals. For instance, the case ofBradley v. Wallaces Limited, 1913 — 3 King's Bench, 629— concerned a horse while the case of Beherens v. Ber-tram Mills Circus Limited, 1957 — 2 Queen's Bench, page 1— concerned an elephant and the case of McQuaker v. Goddard — 1 King's Bench at 687— concerned a camel. I should like the Minister to tell us whether the ordinary scienter rule of law still applies to damage done by animals other than dogs.
The fundamental point about the legislation is that while the criminal sanction for allowing animals to wander is being considerably increased, the civil law will remain largely vague and unsatisfactory. It seems to ensure that landowners, and for landowners, read farmers, will be liable in civil law if they are negligent in allowing their animals to wander. The position in relation to non-landowners who allow their animals to wander is not clear and neither is the position clear regarding farmers whose land adjoins roadways. Has the Minister considered various suggestions that have been put forward by various interested bodies, for example, the question of compulsory insurance? Has he considered the suggestion that all animals be ear-tagged? There has been no indication in his speech that he has given serious consideration to these worthwhile suggestions.
The legislation is hedged in by much red tape. Many of the definitions are so vague and so wide, and the new powers in relation to the impounding of wandering animals are to have so little back-up in terms of willpower or extra finance, that if we are to judge from the Minister's Second Stage speech the Bill will be inoperable. I should like the Minister to clarify all of this when he is replying.
I cannot speak for other members of my party on this but it seems to me that the legislation is typical of the general approach of this Government. It can be summed up as being the minimalist approach, that is, doing as little as possible, as late as possible but with as much public relations as possible. The Bill is entitled, the Animals Bill, 1985 but unless the Minister comes in with some proper intent and makes some real and effective changes there is a danger that the Bill will prove to be strictly for the birds.