I thank the Minister for his very detailed reply at the conclusion of Second Stage. I am now more convinced in my view that the Minister should have broadened the scope of this Bill and eliminated the need to bring in a new Dogs' Bill, for which there is considerable pressure. The more I listened to the debate on Second Stage——
Animals Bill, 1985: Committee Stage.
Question proposed: "That section 1 stand part of the Bill".
Some Deputies seem to have the impression that when we go into Committee Stage they can have another sort of general canter over the Bill. That is not so. We take the Bill section by section and where there are amendments to a section we take the amendments. We are now on section 1, which is the definition section, and the only thing that is relevant, as there are no amendments, is what is contained in section 1.
I respect the judgment of the Chair, I was simply leading into section 1.
The Deputy seemed to be dealing with the Bill in general.
I was just observing, by way of a lead-in to section 1, that the more I listened to the Second Stage debate the more convinced I became that it would be all the more difficult to enforce this legislation in the absence of new legislation which I asked the Minister to introduce in conjunction with this Bill. Under the heading "Interpretation" the fourth paragraph says:
"damage" includes the death of, or injury to, any person (including any disease and any impairment of a person's physical or mental condition) and injury to or total or partial destruction of property;
I would like to know if this definition of mental strain could be extended or if the Bill covers mental strain resulting from the continuing annoyance of barking dogs. We all know that particularly in built-up areas dogs make a nuisance of themselves at night by barking continuously, and disrupting the peace of the locality. That may cause a serious annoyance. Will the Minister clarify that matter?
Will the definition section cover the mental strain resulting from the continuous annoyance of a dog barking or, in the case of disease, will the section relate to a person who picks up rabies or other skin diseases from a dog? Will the owner of the dog be liable to damages arising from such incidents? In my view having read the section people could have a claim for damages against a dog owner.
I appreciate the Deputy's concern in regard to this but the questions regarding continuous barking causing mental stress and disease are for the courts to decide.
In relation to disease?
To both of those issues.
Is the Minister saying that disease — for example rabies — and mental distress are covered in the interpretation section under the heading of "damage".
I am saying that it is a matter for the courts to decide.
With all due respect, it is no such thing. The damage Deputy Hyland referred to is damage under section 3, damage caused when a dog makes an attack. The mental distress he is talking about does not necessarily arise out of an attack by a dog. It is clear that those matters are not covered in the legislation.
With regard to "destruction of property" will the Minister tell the House what the position will be in regard to trespass by animals on a front garden and causing damage to property? Will the owner of the property have good grounds for a claim in the courts for compensation against the owner of the animal?
This section is purely a definition section. Certain words and expressions in it are defined and they are almost certainly used in other sections in relation to liability.
We are concerned about the definition of the terminology used in the section and relating to other sections. We are entitled to get some clarification from the Minister in regard to the terminology. Under interpretation three important questions need clarification — mental strain, disease and the destruction of property by animals.
The Chair is trying to be helpful. This is a definition section and, in the opinion of the Chair, section 1 does not say who is liable. It defines things like "damage". It says what "damage" is and, presumably, another section says that a person may be entitled to damages arising from so and so.
The question of liability under other sections depends on the interpretation of the terms in the interpretation section. From that point of view Deputy Hyland's point is valid.
I should like to reinforce my point. Any legal interpretation of the Bill when passed will be based mainly on the interpretation of the various subheads. It is extremely important that we get the clarification we seek in regard to section 1.
This question comes up for definition in section 2. At this point it would not be appropriate to have any further extension of the section.
I must protest very strongly at that reply. The term "damage", is not defined in section 2. It is defined in section 1 and the question of liability under section 2 and other sections depends on what the terms used in section 1 mean. Will the Minister of State tell the House what the term means?
"Damage" is defined in section 1 and it is a matter for the courts thereafter to decide.
I do not wish to put the Minister under any type of unfair strain in regard to this and I appreciate the fact that she was not present for the lengthy and constructive Second Stage debate, but it is difficult to proceed with other sections without getting clarification of the definitions and the terminology used in section 1. I fail to see the definition in section 1.
I am anxious to be helpful to the Minister because, like Deputy Hyland, I want to approach this matter in a constructive manner. We are dealing with legislation which, hopefully, will have immediate practical effect in our constituencies and we want to see to it that the intention behind the legislation is carried effectively into the letter of the law. I understand what the Minister is saying, that if the definition is in some way unclear — I accept it is impossible to get words to cover every situation — and if there is a lack of clarity or an ambiguity emerges the courts will make a decision on the matter. That is the way it operates normally, but there is no question of ambiguity or lack of clarity in relation to the point raised by Deputy Hyland. Deputy Hyland asked if the mental distress caused by the activities of a dog barking at night and keeping people awake will be covered in section 3, which deals with damage caused by dogs. It is crystal clear to me, on the face of the legislation, that that sort of damage is not dealt with. The only type of damage dealt with in the legislation is damage arising from a direct attack by a dog on person. Deputy Hyland is suggesting that damage such as mental distress should be covered in the legislation. Will the Minister consult with the parliamentary draftsman and her advisers with a view to making it clear, whether in the interpretation section or in section 3 which deals with the matter directly, that that sort of damage is covered in the legislation?
I take the Deputy's point. "Damage" includes the death of, or injury to, any person, including any disease and any impairment of a person's physical or mental condition, and injury to or total or partial destruction of property. That is the definition and it has been used in other legislation.
Let me interrupt the Minister of State. Section 3 deals with damage done by dogs. Section 3 (1) states:
The owner of a dog shall be liable in damages for damage caused in an attack on any person by the dog.
It is damage caused in an attack, which is altogether different and is not catered for in this section.
Perhaps the Deputy has brought up a new concept, the idea of stress from barking dogs or of catching rabies. It is not in context or in the general confines of the approach of the Bill. However, I accept the point the Deputy makes and will consider it.
I do not accept the viewpoint of the Minister of State that it is out of context. We are still dealing with the Animals Bill, 1985, and with various interpretations of the terminology used in the Bill. Let me take the Minister of State further along that road under the subhead of public roads. In the Bill's terminology a "public road" means
a road the responsibility for the maintenance of which lies on a road authority and includes a toll road within the meaning of the Local Government (Tolls Roads) Act, 1979, and, for the purposes of section 2, also includes any highwy;
It goes on to expand on the definition. Under that subhead of public roads there are many public rights of way which would not legally be classified under that Act as public roads but from which livestock could stray. Would the Minister of State clarify the position with regard to trespass from such rights of way as distinct from public roads? Let me give the Minister of State an example with which she will be familiar. We have many bog roads throughout the country serving boglands and agricultural holdings. It is possible and feasible for livestock to stray from adjoining holdings on to that kind of public road which perhaps is not classified legally as in that category within the meaning of the Act. What is the position under this legislation in relation to trespass from that kind of unscheduled and unspecified road?
If it comes under the heading of "highway" there is provision in section 2 in regard to it.
We are dealing with section 1 at the moment.
It is a definition of "public road".
I accept the Minister of State's statement that the definition of "public road" is developed in another section of the Bill, but in this instance we are dealing with public rights of way or bog roads not under any statutory control and as far as this Bill is concerned they present the same kind of access on to the public road as would, for instance, the more official scheduled roads.
Let me intervene. You are speaking on section 2 because you are referring to roads that are not declared public and you are saying that animals are moving from those roads on to public roads.
No, from the adjoining holdings.
I think that is under section 2.
I am dealing with section 1, interpretation. I quoted the section earlier under the heading "interpretation" and there is a section dealing with the interpretation of public roads in section 1. In that context I am asking the Minister of State to clarify the position in relation to that important aspect of the Bill. Any legal interpretation at a later stage of this legislation would depend very much on the interpretations as they are defined in this debate.
On section 1.
On section 1.
If it comes under the definition of "highway" it will be covered in that interpretation. Section 2 deals with it.
I cannot understand the Minister of State's reply. I cannot find the word "highway" anywhere in section 2. This is serious because it goes right to the root of the legislation. We are amending the old Common Law which was established first of all in the UK by the House of Lords in the case of Searle v. Wallbank in 1947. We are trying to impose liability in negligence on people whose animals stray on to the public highway or on to the roadway or on to any right of way where people happen to be. Deputy Hyland has made the very valid point, that this extension of liability that occurs in section 2 is confined to animals straying on to a public road and “public road” is defined quite narrowly in the interpretation section.
This is section 1.
It is defined quite narrowly in the interpretation section which we are talking about. If we are to accept that this is the definition of the pathway or roadway on to which animals stray and, therefore, give rise to liability in negligence under this Bill, the law has not been carried very far. As Deputy Hyland has pointed out, in the rural parts of this country there are numerous roadways which do not fall within that very narrow definition in the interpretation section.
The term "public roads" is used in section 2 and section 4(2). "Public road" means any road that can be defined as a highway, any highway and "highway" has been defined——
Where is the term?
——as a way over which all members of the public are entitled to pass and repass. That would seem to qualify the Deputy's bog road.
Where is the term "highway" in the legislation?
It is on page 2 of the Bill, the definition of public road —"any highway".
The interpretation section which includes the term "highway" includes "any highway." In other words, the narrow definition of "public road" would include any highway. The term "highway" is not being used to extend the definition of "public road" but rather the definition of "public road" is being used to confine this term "highway".
In an effort to assist the Minister of State I ask that she note the three points I have raised under section 1 and perhaps on Report Stage she will come back to us with clarification of them. It is impossible to make any progress in terms of preparing this legislation if we are not clear on the interpretation of the various sections. I appreciate that it is sometimes difficult to come up with answers straight away, and if the Minister of State is happy to do what I suggest then I will accept the fact that she can report back here on Report Stage.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
Section 2(1) defines the duty to take care to prevent damage by animals straying on to the public road. I agree with the principle of this section. As legislators we must take every reasonable step to safeguard the lives of our people using the roads. There are too many examples of loss of life, injury and damage with no redress or entitlement to compensation for the injured parties. This new section will safeguard within reason not only the right of injured parties but also the application of the ordinary rules of negligence which provide a reasonable degree of protection for the landowner. In this regard I feel the Minister was right in not including in the section the provision for strict liability irrespective of fault.
I am a little worried about this section with regard to the provision of, say, wandering horses straying into the front gardens of urban and rural houses. This Bill does not provide adequate protection for the owners of property and could leave the owner open to a very serious injury claim. I do not know how the Minister can get around this difficulty but we have tabled an amendment which I hope he will accept.
Section 2(2) makes provision for areas where fencing is not customary. This section is very vague in its interpretation. I know of many areas where roadside fences are being removed for a number of reasons in the interest of better farming and in some cases for the elimination of rabbits which are becoming a menace. In the interest of road safety we should be moving towards adequate roadside fencing in all areas and this can be done very effectively. It was done very effectively in the Curragh, one of the customary areas referred to in the Bill. However, in the absence of any regulations regarding the fencing of open spaces, similar protection should be provided in traditionally fenced areas where those fences are damaged by a third party without the knowledge of the landowner and where the farmer could be held liable for damage under the provisions of this Bill. I would like the section to be more specific and to afford more protection to the landowner where there is no evidence of negligence on his part.
This new section imposes very serious obligations on landowners to maintain roadside fences and this could have repercussions if they are in breach of the section. This is so serious that, in my opinion, one might be tempted to suggest that there should be a compulsory insurance to cover landowners. While one does not favour compulsory schemes, in my view the situation is so serious for the agricultural community generally that the Minister should consider this insurance scheme. I urge him, perhaps when the Bill becomes law, to avail of the national media to publicise the very serious implications of the likelihood of legal cases arising from damage to property, to animals, to vehicles or to loss of life. The farmers should be made aware of the implications in this section and they should be advised to take out adequate insurance to protect them against the eventual sad outcome of legal action taken against them for damages.
I support what Deputy Hyland said. I know what the intention behind section 2 is because the Minister spelt it out quite clearly in his Second Stage speech, but in my view the section is not specific enough to carry that intention into effect. Let us recapitulate. The old common law position under the line of authority which came from Searle v Wallbank was that if animals strayed on to the public highway then the landowners from whose land the animals strayed would not be liable even if they were negligent, for instance, by not having proper fencing. The Minister's intention is to change the law and to make those adjoining landowners liable but to ground that liability in negligence.
Section 2 (1) is not specific enough to do that. One interpretation of section 2 (1), despite the reference in the subsection to negligence, could be read as imposing strict liability. That is the advice I have got. Would the Minister discuss this with her officials to see if we could find some provision which would more clearly carry the stated intention of the Minister for Justice into effect? As I have already acknowledged, it is difficult to find words to adequately cover every situation but this subsection, which is so fundamental to the purpose of the Bill, should be a lot clearer.
What about the position of landowners whose land does not adjoin the highway but whose animals wander on to the public roadway? In the case of Searle v Wallbank, which is being overruled by this legislation, I think the House of Lords' judgment was confined to landowners whose land actually adjoined the public highway. It did not cover landowners whose animals came on to the land which other people owned but which adjoined the public highway and where the animals went from there directly on to the public highway. I would like the Minister to answer that specific point.
The points made by Deputy Hyland on section 2 (2) are very valid and deserving of an answer, especially the point he made about fencing. I note that it is envisaged — and I would like the Minister to confirm whether this is envisaged — that liability in negligence can still operate in those areas where fencing is not customary. I would like to hear some examples because, apart from somebody wilfully turning animals on to the public highway, I cannot imagine any other example of negligence in that context, that is, negligence which is not related to fencing in some way.
The interpretation of the word "customary" is very vague, broad and general. As I said, we all know of agricultural areas where roadside hedges are being removed in the interests of good farming practice. Can the interpretation of the word "customary" be extended to cover that situation? For example, if a case arose in an unclassified customary area, how would the courts, the people interpreting this legislation, look at this section? We know from practical experience that roadside hedges are disappearing. We are not legislating just for the present but also for the future. Therefore, I believe it is important that we look to the future and cater for future likely developments because we will not be coming into this House to deal with legislation on animals every day.
I do not want to put the Minister on the spot because I know this is something to which she cannot immediately respond and I appreciate that, nor do I want to score political points, but before the Report Stage perhaps the parliamentary draftsman would look at the implications of the word "customary" in the context of this Bill. I understand what it means in the immediate context but it could take on a far different meaning in the future. It is extremely important that the situation be clearly defined in the period during which the courts will be adjudicating on claims arising from this legislation.
The points raised by Deputies were discussed on Second Stage and the Minister clarified them in his reply. The wording of the section is as recommended by the Law Reform Commission and is identical with that in the corresponding provision in the Animals Act, 1971, in England and the Animal Order, 1976, in Northern Ireland, the legal background being the same in those jurisdictions as here. It was further discussed with the draftsman but he feels that the draft is adequate.
Will the Minister indicate that the draftsman will again look at that aspect in order to bring in a more clear definition on Report Stage? I am not satisfied that the section is clearly defined for the purposes of the future implementation of the legislation.
The fact that this is the definition used in another jurisdiction does not mean that it is right. The definition in the 1971 UK Act has given rise to many problems and court cases. I can send copies of the judgments to the Minister's office if the Minister finds it necessary to look at them. Deputy Hyland discussed the meaning of the word "customary". To me it means that something has been done for a long time or from time immemorial in a place which has remained unfenced. It certainly does not cover the new situation which has arisen in the last couple of years. The English definition was put on their statute book in 1971. I will send to the office of the Minister for Justice copies of UK cases which indicate the grave difficulties to which this definition has given rise.
I realise that many of the points raised were dealt with in the Minister's reply on Second Stage. Nevertheless some of the points raised by Deputies opposite are extremely valid. It is a major departure from existing legislation and the protection afforded to farmers whose animals strayed on the public highway. The distinction must be drawn between animals who get on to the highway by accident and those who are deliberately driven there. The Bill does not seem to cater for a malicious attempt to open a gateway and allow animals to stray along the public highway. In the past the liability rested with the insured person and if an animal were damaged the farmer could claim.
Under the new legislation no such protection is afforded to the owner of the animals and very severe liability could be incurred if it were proved that serious damage had been caused to a third party. What level of protection, if any, has been considered in that regard?
I thank Deputy O'Dea for his offer and I am certain that any information he has will be useful and will be carefully scrutinised. Further consideration could be given before Report Stage to the drafting of section 2.
Would the Minister give the same assurance on the points raised by Deputy Dowling? They are very relevant and certainly need clarification.
Yes.
Question put and agreed to.
SECTION 3.
Amendments Nos. 1 and 5 are related and may be taken together.
I move amendment No. 1:
In page 3, line 30, to delete "any house or premises" and substitute "any premises".
This amendment indicates that the Minister has been advised that the term "premises" would include "house" and that therefore there is no need for the term "house" there. Could the Minister cite any legal authority to justify that conclusion?
Amendments Nos. 1 and 5 are drafting amendments to provide consistency in relation to the word "premises" in subsections (2) and (5) of the new section 1 of the Dogs Act, 1906. It is proposed to amend subsection (7) to make it clear that "premises" includes any house as well as land. This enables specific reference to "any house" in the second line of subsection (2) to be dropped. Subsection (5) already uses the word "premises" to cover house as well as land.
Amendment agreed to.
I move amendment No. 2:
In page 3, lines 33 and 34, to delete "unless he proves that he was not the owner of the dog at that time" and substitute "Any such occupier shall have the right to be indemnified against such liability in damages against the owner of such a dog where the occupier proves that he is not the owner of such dog and proves the ownership of such dog".
Section 3 is an amendment of the Dogs Act, 1906, and I do not wish to quote the section. It does nothing to deal with the root cause of the problem. It imparts liability without removing the cause. I am tempted to ask the Minister to consider broadening this section to enable the Bill to deal with the increasing uncontrollable dog population, a very big percentage of which are unlicensed. It is well known that less than 25 per cent of dogs are licensed, so there is no legal control being enforced in relation to dogs. For that reason, it will be possible to implement this section. If there are no means of identification, it will be impossible to deal with the problem.
I cannot accept the implications in the Minister's reply on Second Stage that if stray dogs take up short term residence — I do not mean that in any jovial sense — without the permission of the owner of the premises and without his knowledge or approval, the owner of the premises should be liable for damage caused by that dog. The Minister should consider an amendment to protect the interests of the blameless houseowner or landowner in such situations. In the event of a civil action, how would such a householder prove, to the satisfaction of the law, that he was not the owner of the dog? That is an extremely important point.
We must tackle the broader area of dog control. Dog licensing requires a new Act and, without it, this section will, to a great extent, be inoperative. We are at cross-purposes here because the Bill is not broad enough to deal with the problem of dogs. I do not blame the Minister but the Government have lost an ideal opportunity in that they did not broaden the scope of the Bill to cater for the whole problem which would have eliminated the need for a new Act to cater for the dog problem. In a very short time, because of pressures from farming organisations and other interests, the Government will have to face up to this problem.
Why are we wasting our time today bringing in legislation to deal with a fragmented section of the overall problem? I know I must confine myself to the Bill but the Minister for Agriculture, in conjunction with the Minister for Justice, should have tackled the broader problem and brought in whatever legislation was necessary. If the Minister cannot deal with the matter adequately, she should defer the implementation of this section until the Minister for Agriculture introduces legislation establishing a proper dog warden and control scheme. Otherwise, the section could be unfair to innocent householders.
My amendment goes some way towards protecting the interests of the householder arising from any action which might arise as a result of an attack by dogs and I hope that the Minister accepts it.
The case which Deputy Hyland made in relation to the deficiencies of the section is unanswerable. I welcome the fact that the proposed section 3 amends the Dogs Act, 1906, in relation to damage done to human beings and puts it on the same level as damage done to cattle. Under the 1906 legislation, there was strict liability for damage done by dogs to cattle which did not apply in the case of human beings, which indicated that the prevailing social philosophy at the time put cattle on a higher level than humans. I welcome the fact that the Minister proposes to change this but there is very little else in the section to welcome. That is unfortunate because we are here to get the best possible legislation for the control of animals in a constructive manner. However, this legislation will not do that as it is deficient in many respects. I have already made the point regarding the interpretations section and liability being confined to damage arising from an attack by a dog and the Minister has undertaken to have that looked at again.
Strict liability will arise in relation to damage done by a dog unless the person whose premises the dog occupies proves that he or she was not the owner of the dog at the time the damage was done. This requires a person to prove that he was not the owner. Surely the onus should be on the people seeking damages to prove that the occupier of the premises where the dog happened to be at the time of the damage owned the dog? The defendant should not have to prove that he does not own the dog; it is extremely difficult to prove a negative.
Subsection (5) relates to damage caused by dogs kept on any premises or structure to a person trespassing on that premises or structure. The net effect of that section is that if a dog causes damage or injury to a trespasser in a particular house or premises, the owner of the dog may be liable in negligence. He will not be strictly liable, he will be liable only if the trespasser can prove that he was injured due to the negligence of the owner of the dog. Unfortunately, we are living in an era where attacks on old people are becoming increasingly prevalent and in many cases, particularly in isolated rural areas, the only protection people have is a dog.
We have evidence that in Limerick city an increasingly large number of elderly people are purchasing guns to protect themselves such is the extent to which law and order has broken down. It cannot be the intention of the Minister or the Government to encourage that development. An elderly person living in a remote rural area will keep a dog on the premises to protect him from a trespasser, robber or would-be murderer. He could subsequently find himself liable in damages for negligence. I know it is impossible to bring in wording to cover every eventuality but a dog could be kept on a premises to protect the owner of the premises and it could deal with a would-be intruder before the intruder actually entered the premises. In that event the would-be intruder is not a trespasser and the owner of the dog would be strictly liable in damages to the would-be intruder. Can anything be done to tidy up that anomaly?
The Deputy referred to a number of areas some of which deal with the Department of Agriculture and are not appropriate to this discussion. The general points raised were dealt with on Second Stage. I am opposed to this amendment. The effect of section 3(2) is to create a presumption that the occupier of any premises where a dog is permitted to live at the time when the dog causes damage or injury is the owner of the dog. In an action for damages for such damage or injury the occupier can rebut this presumption by proving that he was not the owner of the dog at the time.
The effect of the amendment would be as follows. In an action for damages it would make the presumption of ownership of the dog rebuttable so that even if the occupier of the premises could prove at the time that he was not the dog's owner this would not be available as a defence. Accordingly, in order to obtain damages from the occupier the injured plaintiff would have to prove the fact of the damage or injury and the fact that the dog which caused it was attached to the occupier's premises. Where the occupier of the premises in question was not the owner of the dog he would have no redress unless he could prove ownership of the dog by another person. Even if the occupier of the premises could prove ownership of the dog by another person he would have to take a separate action against such owner in order to avail himself of the indemnity provided for in the second part of the amendment.
The essential principle of section 1 of the Dogs Act, 1906, is that the owner of the dog is made strictly liable for certain damages and injury which it causes. The amendment is unacceptable because it would be inequitable to the occupier of any premises to which the dog had attached itself. Under the amendment such a person would be strictly liable even if he could prove he was not the owner of the dog at the time the dog caused the damage or injury.
I am disappointed that the Minister has decided to oppose this amendment. I tabled it to protect the interests of the blameless householder in cases where a person is attacked by a dog which happens to be on the premises for the time being. On Second Stage the Minister clearly indicated that the premises on which a dog happened to be at the time of the attack would be interpreted in law as being the temporary residence of the dog at that time. This is of fundamental importance in relation to protecting the interests of the blameless householder.
If the Minister had been able to convince me that the amendment was not necessary I would have been glad to concede that but unfortunately she has not convinced me that a householder is protected under the Bill as presently constituted and that is why I am pressing her to accept what I consider to be an extremely important amendment. I hope that even at this late stage her advisers will tell her that the amendment has merit and that on balance it weighs in favour of the householder in that kind of case. The onus is on the House and on the Minister to protect the interests of a householder in such a case. I appeal to the Minister to consider the merits of the amendment. I would be happy if the Minister could point out why she cannot accept it. The amendment has an important bearing on the broader interpretation of the Bill. It is fundamental in that it will afford a certain level of protection to the householder. I know the Minister would not deliberately want to deny the householder that kind of protection but I cannot understand why my amendment cannot be accepted.
The amendment helps the Bill. I gave a lot of thought and consideration to it and felt it was necessary in the interests of the householder. I am sure many Members of the House could envisage a situation where someone walking along the street is attacked by a dog running out from the Minister's or my gate. There could be a subsequent claim for damages and straight away the householder is in a difficult position. I know that the Minister indicated that the legal process would sort that out but we should not have to deliberately put innocent householders to the expense of pursuing legal action to defend their innocence. It would be much fairer if we could deal with that eventuality in the Bill. If this amendment is accepted we would provide that level of protection to the householder. I hope on reflection that the Minister will see her way towards accepting my amendment. The legislation should be weighted in favour of the innocent householder in such a case. I appeal to the Minister to accept the amendment as it is very relevant to the Bill. It is essential and desirable that the Minister should accept it.
There is a measure of rationale attached to the amendment proposed by the Deputy. You cannot ask for additional measures in the Bill to control the increase in the dog population on the one hand if, on the other hand, you make it easier for stray dogs to find what might be regarded as an unnamed owner or householder.
The section as drafted is reasonable. It achieves what it sets out to achieve, that is, to control stray dogs. In my experience dogs are reasonably intelligent animals. They do not hang around a place unless somebody invites them to hang around by feeding them or caring for them. If people adopt that approach they are giving a licence for a dog to be on the premises and consequently they must assume some measure of responsibility. If we dilute the section as proposed by the Deputy, we are doing nothing to improve the present position. I ask the Deputy to consider the points I have made. While I agree with the point he is trying to make, in trying to achieve that, he misses the whole point of the section.
I should also like to support Deputy Hyland's amendment. People should be entitled to have a dog on their premises for their own protection and they should not be liable for damage done by that dog. In recent times old people living alone have been attacked. It is very desirable that they should have some form of protection. Most of them have a dog for their own protection. It is very unfair to introduce legislation which would make them liable for any damage done by the dog. I ask the Minister to change the section.
Deputy Dowling is somewhat confused. The amendment we have put forward has nothing to do with the point made about the legislation containing no provision to control marauding packs of dogs. Unfortunately, the Government have brought in legislation to deal with a problem which constitutes about 1 per cent, or less than 1 per cent, of the whole problem relating to dogs. The question of legal liability or civil liability for damage done by dogs constitutes a very small part of the problem. I have rarely encountered this problem in constituency clinics. On an ever-increasing scale I have been encountering the problem of marauding packs of dogs about which nothing is being done.
I accept the validity of the other point Deputy Dowling is trying to make. The real problem relates to the fact that, if a person owns a house or a premises, or is in occupation of a house or a premises, and a dog comes to the house or premises even on a temporary basis, having lived some place else for 10 years, and he does damage on the day he comes to the house or premises, the owner or occupier will be liable for the damage done unless he or she can prove that he or she was not the owner of the dog. In other words, to prove a negative.
That is a very harsh provision. Deputy Hyland is trying to dilute in some way the harshness of that provision. He is saying that, if a civil action for damages is taken against people and they cannot prove they were not the owners of the dog, which is a very onerous thing to prove, damages can be recovered against them. If they can prove subsequently that, on the day it caused the damage, the dog was in the ownership of somebody else, they should have the right to be indemnified for the damages which they had to bear wrongfully. They should be indemnified against the true owner of the dog. That is the dilution Deputy Hyland is trying to make in the legislation. This is a well worthwhile amendment. If the Minister refuses to accept the amendment, I should like to hear a more logical reason than I have heard so far.
I cannot accept the amendment. I suggest to Deputy O'Dea that postmen, milkmen and party political canvassers would not agree that this is such a rare event. I do not think there is any great difficulty involved in proving or disproving ownership. I cannot see that as a great difficulty. Where the occupier proves that he was not the owner of the dog in question, he will not be liable for damages. Therefore, the question of indemnifying him against such damages as suggested in the amendment does not arise.
If there is no difficulty in proving or disproving ownership, why not put the onus the other way around as it usually is, and put the onus on the person seeking damages to prove that the dog that did the damage was owned by the person against whom he is seeking damages?
The Minister referred to a rare event. It is for the purpose of safeguarding the person in a rare event that we want to ensure that this legislation covers every possible aspect. While I respect the views of Deputy Dowling, and while I agree that he has a very good knowledge of the problem in rural Ireland, I cannot go all the way with him. The Minister referred to election canvassers. We all know what it is like to be caught by the heel in the course of our canvass.
That is not what happened to Ger.
Can the Minister tell me what owner would admit to ownership of a dog which made a vicious attack on somebody? Until we deal with the broader aspect of dog control and have proper identification, we will not make any progress. I will not say the Bill is a waste of time, but it is not as effective as it could be. It will not be as effective as it should be until we cover the broader aspects of licensing, dog wardens, impounding dogs, and everything else that is necessary to deal with this great national problem.
I am disappointed that the Minister cannot accept our amendment. It was introduced mainly for the purpose of dealing with the odd or rare event to which the Minister referred. We should be concerned about isolated cases and incidents. Any Bill which does not cover eventualities adequately is not effective legislation. I appeal to the Minister to think seriously about what I consider to be an objective and constructive amendment which would improve the Bill. I should not like to feel that the Minister is opposing our amendment simply for the purpose of opposing it. We gave very serious thought to this Bill and we want to ensure that our time has not been wasted. When the President has finally put his seal of office to this Bill we want to ensure that it will do what it was intended and designed to do. So far, I am not satisfied that we are moving in that direction.
Perhaps the Deputy would reflect that the proposed amendment appears to have been designed to protect the position of the occupier of a house to which a dog becomes attached. It is not agreed that the amendment would have this effect. It would put on the occupier the inevitable presumption of liability. The occupier would then have to take a further action to avail of the indemnity referred to in the amendment. It appears that the amendment would worsen the position of the occupier of the house. This provision has stood in the law since 1906. The Department of Agriculture's present position on the point is useful and, indeed seems necessary.
I cannot accept that this amendment in any way worsens the position of a householder. That position is made very invidious by section 3 (2) which, as the Minister has stated, gives rise to a presumption of ownership in certain cases. It does more than that. It states specifically, in black and white, that the occupier of the premises in question will be liable for any damage done by the dog anywhere, unless it can be proved that he was not the owner of the dog on that date.
What Deputy Hyland is trying to do is mitigate the harshness of that, because it is very harsh on the occupier of a premises to have to prove a negative. Deputy Hyland is trying to ensure that if at some future time after damages have already been recovered the occupier of the premises can prove that on the day the damage was done the dog was in somebody else's ownership, the occupier of the premises who has been wrongfully subjected to a claim for damages will be able to recoup his losses against the person really responsible, that is the owner of the dog.
With respect, there are no political gains or losses for anybody in relation to this legislation. Nonetheless, it is important and desirable. I know what the inevitable outcome would be of a division on it, which is one of the problems in this House. The Minister has her marching orders and will pursue her opposition to this amendment, even if a division is called from this side of the House. That is a little regrettable, particularly in relation to a very genuine effort on our part to help the Minister to improve a Bill which is in the overall interests of the people of this nation.
There is little point in exhausting myself talking for the next two hours on this section when one can anticipate that the Minister will oppose it regardless of what is said on this side of the House. This legislation is of general interest and there is no real political kudos or gain for anybody. I appreciate the position of the Minister. Obviously, she has been told by her Minister to oppose this amendment and, true to form, she will oppose it to the end. No matter how objective or constructive one would like to be, her opposition will continue and the inevitable vote will decide the outcome. The Minister has lost out in not accepting this amendment.
Are you not pressing the amendment?
We are missing out on an opportunity. I consider this to be an extremely important amendment, one which would change the entire meaning of this Bill and provide a necessary level of protection for the householder in that type of situation. I will call for a division in relation to the amendment.
I am putting the question.
Amendment put and declared lost.
I move amendment No. 3:
In page 3, line 48, after the word "caused" to insert "or permitted".
I shall read this subsection, because it is important:
(4) Where cattle are injured by a dog on land on to which they had strayed, and either the dog belonged to the occupier of the land or its presence on the land was authorised by the occupier, a person is not liable under this section in respect of injury done to the cattle, unless the person caused the dog to attack the cattle.
That phrase "unless the person caused the dog to attack the cattle" is the important part. I hope the Minister will find it possible to accept this simple but nonetheless very desirable amendment. It would be extremely difficult to prove that a person actually caused a dog to attack the cattle. The fact that the owner is aware of the attack and permits it to take place or to continue should be sufficient grounds for liability in respect of injury. In other words, if a dog seriously attacks or damages livestock, it would be extremely difficult to prove that the owner of the dog was actually responsible for the attack, whereas the owner could be aware, indeed for a long time, that this attack was taking place. This amendment provides for a level of protection for the landowner in that situation.
It may perhaps have been an oversight on the part of the parliamentary draftsman that the word "permitted" was not included here with the word "caused". The overwhelming majority of dog owners can control their dogs and tell them what to do or not to do, in terms of attacking people or cattle. As Deputy Hyland as pointed out, it is extremely difficult to prove that a person has positively caused, provoked, encouraged or driven his dog to attack cattle. The basis of our amendment is that the person who stands idly by when he could control his dog and prevent him from attacking cattle is equally as guilty as the person who positively causes his dog to attack cattle. In those circumstances I would be more than surprised if the Minister does not see the merit in this amendment and accept it.
The amendment in the name of Deputy Hyland refers to the owner of the dog being aware of the attack and doing nothing to prevent it. There must be a level of protection. An attempt could be made to prove that an owner was aware of an attack, but it would be extremely difficult to prove that he was not aware of an attack. It might be an attack on sheep. He could be aware of the attack but do nothing to prevent it. Perhaps in that situation there is some merit in what is proposed.
The operative word here is "permitted". Members of the House will understand what I mean by talking about causing a dog to stage an attack. Quite logically Deputy Dowling made the point that to permit the dog to cause the attack is the relevant point in the amendment. It is only a technical point. As Deputy O'Dea stated, it could even be an omission on the part of the parliamentary draftsman when drafting the Bill.
The amendment is important. It deals with the addition of the words "or permitted". Otherwise there will be no level of protection for the landowner whose animals are attacked by wandering dogs. Everyone knows that many farmers have been put out of business because of attacks by dogs on sheep herds. Because of the proximity of Dublin city, the sheep number in Dublin county has been reduced to one-third of what it was ten years ago and that is an indication of the national dimension of the problem. Even though this Bill is inadequate, we must endeavour to provide the maximum degree of protection for farmers in that situation.
I ask the question: where will one get anyone to admit that his dog attacked sheep or where will one get evidence to indicate that the owner of the dog caused it to attack the sheep? The fact that the sheep have been permitted to be attacked is the relevant point. In my opinion this Bill will fall down totally in terms of protection for farmers and sheep owners if the Minister does not agree to the insertion of the words "or permitted". I do not know of any logical argument that could be made against our amendment. In my opinion it would strengthen the section considerably.
The Minister for Agriculture and Members of this House who are interested in the development of agriculture are aware of the massive losses to the nation, quite apart from the loss to the individual farmers, incurred as a consequence of attacks on sheep. The Minister of State should not allow this opportunity to pass to give maximum protection to sheep owners. This is particularly important having regard to the fact that there is no control over the dog population. As I indicated earlier, only one-third of dogs are licensed. We should do everything possible to protect the owners whose animals are attacked by dogs. I appeal to the Minister to accept the amendment.
The provision does not relate to attacks by wandering dogs on sheep. It refers to trespassing animals injured on the occupier's land by the occupier's dog. I must oppose the amendment, but I assure the Deputy there is no bias intended. It is not a personal or a party matter.
The basic principle in subsection (4) of section 1 of the Dogs Act, 1906, is that strict liability is not incurred for injury caused by a dog to cattle where the injury is sustained on land onto which they have strayed and is caused by a dog owned by the occupier of the land. The amendment now proposed would qualify the effect of the subsection to a considerable extent. There will be many cases in which the occupier of the land will use a dog to control or direct animals trespassing on it. The intention of the subsection is that such a person should remain strictly liable where he uses the dog to attack and injure the trespassing cattle. The occupier of the land in such a case must be construed as having permitted the dog to injure the trespassing cattle, where such injury was incidental to the shepherding of the cattle by the dog even though the person concerned did not instigate an attack by the dog. The same construction might apply where the dog injures trespassing animals where it is not under the immediate supervision of its owner — for example, during the night. This would be an unreasonable extension of the proviso in subsection (4). I do not think the amendment should be accepted.
I do not think it makes any difference under what circumstances the attack takes place, whether the animals are straying or are on the owner's land. The fact that the attack is permitted to take place is the relevant point. By not accepting the amendment the Minister is weakening the legislation from the point of view of the farmers. On balance and irrespective of the merits or otherwise of including the words "or permitted", I believe we should weigh the section in favour of the person who suffers the damages. In such a situation the person most likely to suffer damage will be the owner of the livestock or the farmer. Why should we provide a level of protection for the owner of a dog that is not licensed when one considers the damages and loss suffered by the landowner? It is a source of disappointment to me that the Minister is pursuing her opposition to the amendments no matter how objective they may be. It is my opinion that the provisions of this Bill will be all the weaker because of her failure to accept the wisdom of the amendments we are moving.
I have listened carefully to the arguments put forward by Deputy Hyland. In a sense they are valid. I know it makes it easier to secure a conviction in a case where cattle are attacked if one inserts the word "permitted". Deputy Hyland and all rural Deputies are aware that sometimes great hostility can exist between neighbouring farmers. I have experienced this myself. If cattle were to break into a field of corn in the early part of April, certainly that would create severe tension and hostility. I and Deputy Hyland know what a farmer would do in those circumstances. He would cause his dog to get rid of those cattle very quickly, and that has happened on numerous occasions. In that situation the word "cause" is important, but it must be proved. Were such cattle pushed out onto the public road causing a major catastrophe, where would the liability lie then? In the case of a casual interference or trespass by animals onto another farmer's land there will not be that kind of hostility which would create a situation in which a dog would be caused to attack the animals. I think it would arise in extreme situations only. The section is designed to afford protection to the farmer concerned, that if he has had enough of it, he can take action. There would need to be strong proof to get a conviction against him, proving him liable for any damage he might do.
I understand fully what Deputy Dowling is saying but I am not sure how it relates to the point Deputy Hyland has been making. The refusal of the Minister to accept our amendment boils down to this. Let us suppose there are two men, each owning a dog he can fully control. One of them sets his dog on cattle. The other knows that his dog is attacking cattle, he is present but he does not do anything to call off the dog even though he can do with the one word. The Minister's refusal to accept our amendment would suggest that the former is more morally culpable than the latter. I find that approach completely and totally unsustainable.
I listened attentively to what Deputy Dowling had to say. He appeared to be talking in the context of, say, one farmer's dog attacking a neighbouring farmer's livestock. If he considers the situation I am sure Deputy Dowling will agree that there are many other instances of, say, dogs from urban areas going out into the country and causing very serious damage to livestock. I am thinking here particularly of sheep. On the part of the farmer it would be very difficult to prove that the owner of the dog, if he can be established — this, of course, is another problem and relates to my earlier comments — caused the dog to stage the attack. On the other hand it would be much easier to prove, in many instances, that the owner permitted the dog to cause the attack. That constitutes the really important distinction between what Deputy Dowling is saying and the case I am endeavouring to make here. I am saying to the Minister that the addition of the word "permitted" would strengthen this section, weighing it in favour of the individual landowner. What more can one say except to plead that the Minister would see the logic of the amendment. I cannot see how it would in any way take from the provisions of the Bill, but I can see tremendous advantage in adding the word from the point of view of their improvement.
Deputy Dowling referred to the isolated case. We must deal with and make provision for the isolated case in the preparation of this legislation. In regard to civil action, they are the cases that can really cause problems. I would much prefer this section clearly defined, leaving no ambiguity in its interpretation.
We all know that a dog will naturally chase animals that come into a yard. Quite a number of dogs will go without permission: naturally a dog will run for cattle. If one's neighbour is in the habit of having bad fences and cattle tend to stray continuosly, naturally the other farmer becomes somewhat hasty. But dogs will go mostly on their own. It is different if a farmer deliberately incites or causes a dog to chase or get after animals. Then there is a case for "causing" because one can get a dog to go simply by a word or a wave of the hand. One sees that regularly in any farmyard. Usually the dog is called "George" and one hears a farmer say "Come, George" or "George go". At that stage a farmer will have caused the dog to go and he would be responsible. One has not much control over some dogs and a dog could go without permission. It is a difficult case — I am not a lawyer — but I would simply make that point.
I accept fully what Deputy W. O'Brien has said, but if one has no control over a dog then one is not permitting him to do any damage. What we are talking about is a situation in which one can actually call the dog back with a word and one does not do so. That is the same as causing a dog to attack cattle.
But one can also cause him to move by one word as well. That is the problem.
But one can call him back with one word. That is what we are endeavouring to achieve.
We are really missing the point. Perhaps the Minister is at a slight disadvantage here in that probably she does not understand things on the agricultural scene. That is not meant as any reflection on her. But I would say to Deputies opposite, and I will give a more practical example, that we all know of cases where dogs have been tormenting sheep — terminology very often used on the agricultural scene — where the owner of the sheep has informed the owner of the dog that this threat is taking place and when over a period of time no action has been taken by the dog owner to prevent attacks on those sheep. I am sure it could be argued in court that this was not a deliberate act on the part of the dog owner. On the other hand, he was aware of it and, by being so aware and allowing it to continue, he was permitting the dog to continue that attack on the farmer's property. While I appreciate the logical points made by the two Deputies opposite, the point I am now making is in further support of the logic of our amendment.
As a farmer, I understand the situation in rural Ireland. I am giving a practical example of what happens on a regular basis. By refusing this amendment we are missing an opportunity to strengthen the Bill and provide a level of protection for the agricultural industry. It would not be the Minister's intention to deliberately do that but the advice given her is not in the best interests of the agricultural community. What advantage is there in excluding the word "permit". The House has clearly indicated to the Minister that there is a very obvious advantage in having the word included, so why must she persist in opposing the amendment?
There is a very clear distinction between farmland, open land and land containing housing estates and so on. We are all aware that damage is done in open planned housing areas, by animals, to the annoyance of residents associations and so on. In relation to cattle which get in over fences and do considerable damage there is a measure of protection that can be obtained. I do not see that as a real problem, although it can happen. I have great sympathy for farmers whose cattle stray into housing estates. This legislation is designed to protect the person on whose land the cattle trespass. We must protect the farmer who gets the cattle off his land. There have been disputes between families over cattle trespassing and trespassing is one of the causes of protracted disaffection between farmers. The cause is important here.
I agree with Deputy Hyland in relation to cases where cattle stray onto non-farming land such as a housing estate. In that case a number of dogs could be set upon cattle and damage could be caused. There is a distinction to be drawn there. It is extremely difficult to do that in the context of this section. Once this legislation is passed and permeates society, people will take note of fencing, their animals and the protection they must give to the animals and to the public against straying animals. This is the whole purpose of the Bill. Perhaps as the Deputy said we have lost an opportunity but there will be other opportunities to cover the Deputy's point and I will support such legislation. Here we are dealing with liability and I would not wish to see the farmer whose land is trespassed upon and whose property is damaged being prosecuted without serious cause.
Present legislation allows that.
I do not follow the logic of Deputy Dowling's latest contribution. What we are trying to do is to protect the farmer who suffers financial loss arising from an uncontrolled attack by a wandering dog. Will the Minister explain to the House the disadvantages of accepting my amendment? Even from the Minister's point of view I do not see how the Bill will be made deficient by accepting the amendment. It takes nothing from the Bill and I would press the Minister to accept the simple addition of the word "permit".
I take the point that there is a difference between the words "cause" and "permit" but there is no difference in reality between a person who causes his dog to attack cattle and a person who permits his dog to attack cattle when he knows he can control him with one word. We are trying to equate these two positions by proposing this amendment and the Minister, in fairness, should accept it.
It is difficult to prove.
That arises under the legislation as it stands.
As a layman, what worried me is how one ascertains guilt. Who can say whether a man caused or permitted a dog to attack cattle?
The point raised by Deputy O'Brien is a matter for the courts essentially. It is impossible to find words to cover every situation, and a formula to cover every situation. That would be a matter for the courts.
The courts only interpret the law that we make here.
One cannot find a law to cover every situation. It is up to the courts to interpret the general guidelines.
Would it not be only for the farmer to say that he did not either cause or allow the dog to attack? It would be impossible to prove anything. Afterwards the court could not prove it if there was not adequate proof.
That arises under the legislation as it stands. Our amendment does not change that fact.
I know that.
I appreciate that we do not want to go on just for the sake of talking. I put it to the Minister, in what way will this Bill suffer as a result of her accepting the amendment?
I thank contributors on both sides, The contributions certainly indicate that farmers can differ on issues. The farming organisations, and the Department of Agriculture, were consulted and had no objection to the present text of subsection (4). I can only repeat that the subsection does not apply in relation to wandering dogs. It applies to dogs which are on their owner's land. The owner will feel obliged to protect his property, including land, crops, cattle and other animals from trespassing dogs. It is natural that he may use his own dog in these circumstances to control the trespassing animals. Subsection (4) is an appropriate provision to meet that situation which will make the occupier liable only where he causes the dog to attack trespassing animals.
There does not seem to be any point in calling for a division for the sake of having a vote. However, it is extremely regrettable that the Minister has not found it possible to accept my amendment which would contribute in a big way to the Bill. The Minister appears to be opposing the amendment simply for the sake of opposing it. I must confess that it is a source of disappointment to this side of the House that logical amendments, designed to strengthen legislation, are, almost by way of routine, opposed. We will not legislate in the best interests of the nation if that prevails.
In the past I have participated in debates where the Minister saw the logic of Opposition amendments and accepted them. Members on both sides have put forward objective and constructive comments about the Bill but it seems that we will be voted out of court because the Minister will continue to pursue the direction from her Minister to oppose us. I hope it is not her intention to deliberately oppose all our amendments.
We will be withdrawing our amendment but I should like the Minister to indicate that she sees the logic of some of our statements. It is hardly an answer to the arguments put forward by this side of the House to say that the subsection is appropriate. Anybody could say that. The Minister should be constructive about this matter, like the Opposition are. She should assure us that between now and Report Stage she will consult the parlimentary draftsman to see if there is any merit in the proposals we have put forward.
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 4, between lines 10 and 11, to insert the following:
"(7) Notwithstanding the provisions of this section, it shall be a defence to an action for damages arising from an attack on a person by a dog to establish that the attack complained of arose from provocation of any kind by the person attacked or by any person acting in consort with him.".
I hope the Minister will see the logic behind this amendment. I am not inclined to stay on my feet all night making a case for accepting it, particularly if it is to be a routine practice on her part to say "no" to all our amendments. We believe the amendment will broaden the scope of the Bill and strengthen it. Many people in these difficult times have guard dogs for their protection. We are all aware that such animals can be provoked into action. In fact, the action of such animals has resulted in the person who provoked the dog being injured. Such incidents are often followed by a claim in court for compensation from the owner of the dog. The owners of such guard dogs should not be left open to claims for compensation arising out of attacks provoked by an intruder. Our amendment represents a reasonable precaution to be included in the Bill.
We have all heard of people having to resort to the use of firearms to protect their family and property. I do not mean to give the impression that I am encouraging such activity, although I can understand the circumstances that provoke people into such action but surely the owner of a guard dog is entitled to use that animal to protect his family and his property. That person is entitled to the protection of the law if an intruder is attacked and injured by his animal in the event of the injured person taking a civil action in court for damages. We are moving a little in the wrong direction here. Some days ago I referred to the award to a prisoner arising out of him having set fire to a mattress in a prison cell. That is an indication of the thinking in regard to civil actions. As far as we can we should weigh our legislation in favour of the citizen who seeks to protect his family and his property against crime and violence. If the Minister does not accept my amendment I will be extremely disappointed.
(Dublin North-West): I support the amendment and what Deputy Hyland has said in moving it. I was the first Member to raise this matter in the course of the debate on the Bill. As a Dublin Deputy I am aware of the fears of people leaving their homes or premises unoccupied. I am sure the Minister of State is aware of the number of break-ins that take place through the city. Houses and business premises left vacant overnight or for any length of time are liable to be broken into. Many young couples who must go out to work to pay their mortgages have bought dogs to protect their premises while they are unoccupied. This is a very good amendment because it eliminates the owner of the dog that is there for one purpose only — to protect his premises — from being responsible for any attack on an intruder who would deliberately break into the premises. I beg the Minister of State to accept this amendment because of what I have outlined.
The other point I raised in my contribution to the Bill is the number of blind people who have to use guide dogs. The owner of a guide dog should be eliminated from being subjected to being taken to court and having to pay compensation if his guide dog attacks somebody.
I support my two colleagues. Section 3 imposes strict liability on the owner of a dog for damage caused by the dog when it attacks somebody. Surely that strict liability, which operates no matter what the dog owner proves or how he is provoked, should not operate when the person who is injured by a dog brings it on himself. We are trying to exclude that and it is perfectly logical and reasonable that it be excluded. The Minister of State should in all fairness accept the logic of this amendment?
I have a certain sympathy for the amendment because as matters stand the power of a dog is eroded and unfortunately, as time goes on it is becoming more and more necessary to have a dog. I would be tempted to let a dog loose if I was living in rural Ireland or any place at the moment.
A Deputy
Hear, hear.
It would be sad for somebody to be the victim of a break in and to be faced with a penalty because his dog tried to prevent as far as possible a criminal coming through a window or a door. I would like the Minister of State to look sympathetically at that.
I congratulate Deputy O'Brien on what he has said. It makes perfect sense to me. To add to it, provocation does not just concern a criminal coming in your door or window. It concerns also somebody who attacks the owner of a dog, such a situation as Deputy Barrett has mentioned in relation to guide dogs for the blind. Somebody attacks a blind man and his dog responds. That attacker has brought it on himself and the owner of the dog should not be strictly liable. The Minister of State should take a very serious look at this.
I wish to make it clear that I have no objection to the principle of this amendment. I have been advised that this is already covered essentially by section 3(6). The effect of that subsection is that damages can be reduced for contributory negligence by the plaintiff. Provocation by the plaintiff can be taken into account by the court in that context, so damages could be reduced possibly to nil by the court where there has been provocation.
Let me put it to the Minister of State that we are endeavouring to weigh the legislation and the provisions of this Bill in favour of the owner of the dog which attacked. Why should we want to seem to weigh legislation in favour of the person who provoked the attack in the first instance? It is a question of which way we are going, whether we are going to protect the law-abiding, law-respecting citizen or whether we are going to weigh the legislation in favour of somebody who for ulterior motives attacks, robs or whatever. Why should we weigh this Bill and the legislation which will result from it in favour of the lawbreaker when we should be seen to be providing the maximum degree of protection for the self-respecting, law-abiding citizen?
It gets me back to our overall approach that we seem to be providing a greater degree of protection for the criminal than we are for the law-abiding, law-respecting citizen. Surely the Minister of State can see the logic of providing that degree of protection for the law-abiding and law-respecting citizen, and our amendment is simply striving to do that. What can one say on this side of the House except to appeal to the Minister of State? She has heard the views of two of her backbenchers. I do not want to put them on a spot but they can see the logic and reasoning behind the amendment we are moving here.
With respect to the Minister for State's advisers, I do not agree that the situation is covered properly in subsection (6). The Civil Liability Act, 1961, allowed the concept of contributory negligence to be introduced into our law. That means that if somebody brings an action for damages for negligence against a defendant and the defendant can prove that the plaintiff was to some extent responsible, that he also was negligent, damages can be reduced. I have not got the Civil Liability Act before me and I do not know to what extent the damage can be reduced. Perhaps they can be reduced to nil, but in the course of my practice and contacts with members of the Bar and of the legal profession I have never seen a case where damages were reduced to nil. Deputy Hyland by his amendment is trying to ensure that in the case of provocation damages will automatically be nil, that it will be a total defence to the action. From that point of view I would not agree that the matter is completely covered by subsection (6), even though I appreciate fully the point the Minister of State is making.
(Dublin North-West): I believe that the Minister of State has a certain amount of sympathy for this amendment, but with regard to what she said in reply I will give an example. An old person keeps a dog as a companion and to protect him or her if somebody breaks in. Somebody breaks in and the dog defends the old person, as happens regularly nowadays. The culprit who breaks into that house can take that unfortunate old person to court. The old person has to be dragged through the courts. I have seen such people in court. They must wait there and do not know what is happening. It is entirely up to a judge to make a decision as to whether the old person is liable for damages. This is the time, when the Bill is going through this House, to agree to this amendment and make it clear that people in that category should not be subjected sometimes to paying damages. Nowadays one does not know what amount of damages they might have to pay. I would like the Minister of State and her advisers to reconsider this in view of what has been said not alone on this side of the House but also by Deputy O'Brien on her side of the House.
While I agree with the manner in which the amendment is proposed and the thinking behind it and what it is designed to achieve — to give the necessary level of protection to the type of people for whom the proposers are concerned — there is another side of the coin. When a person goes on to property a dog could be set on him for no apparent reason. The person may not necessarily be a trespasser in the criminal sense, if one may draw that distinction, but a measure of liability could be apportioned to him in that situation. We must be careful. That would appear to be the situation in subsection (6). We are looking at one aspect. I support fully the proposal that old people who have a dog for protection should have no liability at all apportioned against them if they protect themselves and are seen to protect themselves. The tenor of Deputy Hyland's thinking is quite laudable in that regard. On the other hand, we must protect people. We here may find ourselves in the next few weeks in a situation where dogs can be set on us. Will we have any redress or any degree of liability? That situation can arise.
It was mentioned earlier that there was no point in putting forward well intendioned amendments but I do not agree with that. This debate had been exceedingly worth while because it was explained what lies behind the wording of this Bill from a legal point of view. This has been extremely helpful to people like Deputy O'Brien and myself. I did not agree with the last amendment which dealt with cause, but I was prepared to see what was behind it and I said at the end that I would have to support keeping the cause in the Bill. This is a different situation and I ask the Minister to see what can be done about this before the next stage is taken.
I hope Deputy Dowling emerges unscathed from the local elections. The point he is missing is that if a trespasser goes on to property and a dog injures him, the dog owner will be liable if he is negligent. No one could say a person was not negligent if he deliberately set a dog on somebody. That is the most gross form of negligence and that situation is covered.
If people see us coming down the driveway looking for votes they might——
You will not see me in Kilkenny.
I have no desire to prolong this debate but I want the Minister to tell the House in what way she sees this amendment as being damaging to the Bill and in what way it would take from the legislation when passed. I consider this to be a constructive amendment which will add to rather than take from the Bill. I am willing to listen to her arguments against this amendment — under what heading she thinks it should not be accepted and under what heading it would take from the strength and effectiveness of the legislation when passed.
We have heard the views of several Deputies on this amendment and I agree it is extremely difficult to legislate for every eventuality. We have heard arguments from the other side against this amendment, but, in my view, this Bill should be weighed in favour of protecting the law-abiding citizen. Deputy Barrett gave the example of the old person living with a dog for protection. Some hooligan comes up, throws stones at the dog and is attacked, and the inevitable outcome is a claim for damages caused. In fairness the old person should not have to go to the expense of going to court to defend the action brought by a law breaking citizen. Nobody in this House, and I am sure the Minister if she were not under the Whip, could logically disagree with that point.
This Bill could be vastly improved as a result of constructive and objective debate in this House and could emerge as entirely new legislation providing the maximum degree of protection for the citizen, but this will not happen even if I stayed here arguing until the cows come home. No matter what I say it will all be in vain. This is a disappointment to me. I look forward to hearing the Minister's explanation of how she sees this amendment as being damaging to this Bill.
I have a certain amount of sympathy with the views expressed. The degree of provocation can vary. Under the present text, the court will take the degree of provocation into account. Under the terms of the amendment, "from provocation of any kind of person attacked", any degree of provocation would relieve the dog owner of liability and this might not be appropriate.
Deputy O'Dea mentioned case law. We have not found any recent Irish case but in the Scottish case, Gordon versus McKenzie, 1913, it was decided that provoking or teasing a dog so that it bites would be contributory negligence, but merely passing a dog wandering in the street would not. However, there seems to be a difference of opinion on this. Would the Deputies agree to let us have another look at this before the next stage?
I appreciate that the Minister is anxious to assist us as far as she can so that we will finish up with worthwhile legislation. I agree with her request and welcome the fact that she will let us have her further thoughts on Report Stage.
Amendment agreed to.
I move amendment No. 5:
In page 4, line 13, before "land" to insert "any house or".
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
Amendments Nos. 6, 7 and 8 are related and, by agreement, will be taken together.
I am anxious to move amendment No. 7.
Will the Deputy allow the Minister to move amendment No. 6 first.
I move amendment No. 6:
In page 4, subsection 2 (a), line 20,, after "Garda Síochána" to insert "or any local authority".
This amendment is designed to give effect to amendment No. 7 in the name of Deputy Hyland which I propose to accept in principle. However, I have been advised by the draftsman that all that is needed to give effect to this amendment is the insertion of the words "or any local authority" after "Garda Síochána" and that the words "or servant or agent of such local authority" in Deputy Hyland's proposed amendment are superfluous.
One effect of this amendment will be that the local authority power to impound trespassing animals given by section 4 (2) (a) will not be confined to the functional area of the local authority in each case as under the present subsection (3). However, I consider that the omission in the reference to functional area is acceptable since, in practice, local authorities confine such impounding to their own functional areas.
Amendment No. 8 is a drafting amendment consequential on amendment No. 6. Because of the effect of amendment No. 6 it is necessary to delete the words "on a member of the Garda Síochána" from subsection (2) (b) of section 4. It is also necessary to delete the words "where the authority concerned has so requested" and to substitute therefor the words "on request by the authority by which such public park or open space is owned or occupied". Amendment No. 8 also deletes the reference to the Garda Síochána in subsection (2) (b). This is necessary as the impounding powers now conferred under amendment No. 6 will not be confined to the Garda but will also be conferred on the local authority. Arising from amendment No. 6 the phrase "the authority concerned" is being deleted from subsection (2) (b) and is being substituted by another phrase to prevent ambiguity.
Even though the Minister has not accepted my amendment, nevertheless I am entirely pleased that her amendment covers almost exactly what we had hoped to achieve in relation to this section. I acknowledge that the Minister has found her own formula for agreeing with the amendment put forward by Members on this side of the House. It highlights the point I was making earlier that it always seems to be the policy that those on the Government side will not agree outright with the points made on this side of the House. This amendment simply finds a new format of words to say exactly what was said in my amendment. To that extent I am grateful to the Minister and I appreciate that she has seen the logic and wisdom of what I was trying to do. I regret that she did not find a formula for implementing the changes put forward in our other amendments.
I also thank the Minister for accepting the substance of our amendment. The purpose was to tighten up the provisions in relation to impounding, which are fundamental to this legislation. I accept that the Minister has gone as far as we suggested in our amendment. The practical effect is that some people have power to impound animals in a public place; other people have power to impound animals in a public park. An open space is slightly different and a public road is an entirely separate matter. Eric Blair, better known as George Orwell, gave us the wonderful concept of newspeak and oldspeak—this is a typical example of Dáilspeak. The whole thing is in danger of being strangled by bureaucracy.
Under subsection (2) (b), if animals are found wandering in a park owned or occupied by a local authority the Garda cannot move in to impound the animals without the prior approval of the local authority. I am one of the few Deputies who represents a constituency where two local authorities are operating. Limerick County Council, of which Deputy O'Brien is a member, is an excellent authority and if one gets in touch with them about getting something done it is dealt with very quickly. We have another local authority, namely, Limerick Corporation, and I sometimes think that if the entire city fell down it would not wake up some of the people in the town hall. I pity somebody who wants Limerick Corporation to give permission to a member of the Garda Síochána to remove a wandering animal in one of Limerick's public parks.
Could any formula be devised to deal with the situation where an animal is about to cause immediate danger in a public park? Could the procedure be short-circuited in such a case? The garda is the best person to get things done quickly. It is impossible to find words to cover every conceivable situation but I would ask the Minister to consider some provision whereby action could be taken in the case of imminent or immediate danger in a public park owned or controlled by a local authority.
The definition of public place includes any street, road or other place to which the public have access with vehicles. I presume the intention is to designate a public place as a place to which the public have access with mechanicaly propelled vehicles. Does the word "vehicle" include a non-mechanical vehicle such as a bicycle? Perhaps the Minister could clarify that point.
I thank Deputy O'Dea for his remarks about Limerick County Council.
Deputy Prendergast will not like his remarks about Limerick Corporation.
We all have our problems.
The lands in question are private property and it was pointed out by the Minister on Second Stage that the gardaí acting in such cases must be regarded as the agents of the authorities concerned. It would not be appropriate that they should enter on private lands for the purpose of impounding animals without reference to the authorities by whom the land is owned or occupied. In any case under subsection (3) local authorities have a direct power to impound trespassing animals.
Somebody could be killed while they are waiting to get authority.
Amendment agreed to.
Amendment No. 7 not moved.
I move amendment No. 8:
In page 4, subsection (2), lines 25 to 28, to delete paragraph (b) and substitute the following paragraph:
"(b) In relation to any such public park or open space, the power to impound conferred by paragraph (a) may be exercised only on request by the authority by which such public park or open space is owned or occupied."
Amendment agreed to.
Amendment Nos. 9 and 11 may be taken together.
I move amendment No. 9:
In page 4, lines 29 to 39, to delete subsections (3), (4) and (5) and substitute the following:
"(3) The Commissioners of Public Works in Ireland may impound any animal found trespassing on any public park which is under the control and management of the Commissioners.
(4) Paragraph 11 of section 10 of the Act of 1851 and section 20 of that Act shall not apply in relation to the impounding of an animal by a member of the Garda Síochána or by a local authority or by the Commissioners of Public Works in Ireland.
(5) Where an animal is impounded in pursuance of the powers conferred by this section, the authority by which the animal is impounded may recover the cost of transporting the animal to the pound from the owner of the animal as a simple contract debt in any court of competent jurisdiction."
Amendment agreed to.
Section 4, as amended, agreed to.
NEW SECTION.
I move amendment No. 10:
In page 4, before section 5, to insert the following new section:—
"5.—In urban areas, no liability shall attach to occupiers of property where animals already straying enter into and escape from property where the occupier of the property is not the owner of and has not custody of such animals."
We tabled this important amendment as a result of views expressed on Second Stage and widespread public concern. Animals may stray from the road on to the property of a householder and, while leaving the property of their own accord or being driven off on to the public road, they may cause a serious accident. It appears that adequate protection is not being provided for the owner of the property. It is extremely unfair that a householder or property owner could be open to a claim for damages arising from an accident taking place as a result of the animals leaving the property. The animals could have strayed in and out of their own accord and could be injured by a car, a pedestrain or someone on a bicycle. To take it a stage further, what would be the position of the property owner who drove the horses or cattle from his property on to the road and, as a result, caused an accident? In that case, the owner of the property should be protected from the eventual claims which would arise and from which compensation could be claimed. Naturally, the owner would not be responsible for having stray stock on his property and he should not be responsible either for any claim for malicious damage which might arise as a result.
This might not seem to be a very significant part of the Bill but I am sure everybody here could envisage that kind of situation. I am very strongly of the view that, if the Bill is to be fair and effective in dealing with the problems which may arise, we should cover all eventualities. The legislation and the terms of this Bill should weigh in favour of the innocent property owner and protect him or her against any claim for compensation which would arise following a court case which would cause serious financial difficulties for an innocent victim. I notice that there has been a change of personnel in the front bench and I respect the Minister's views in relation to agricultural matters. He is a man with a rural background and an understanding——
I will only be here for a very short time.
Perhaps he will find it possible to come up with some new ideas because we have got very little so far. I do not mind if the Minister finds a formula for accepting the amendment before us but I am anxious that he should see the logic behind the amendments and accept it. I am sure the Minister is aware that it could present serious complications for a person in that difficult situation.
I support the views of Deputy Hyland. The situation envisaged in our amendment applies to an urban area. In Limerick city, stray horses wander into gardens and, under the terms of section 2, if the owner deliberately turns those animals out on the public road, he could be found liable for negligence. If he allows them to wander back on to the public roadway knowing that it is dangerous, he could also be found liable for negligence. Deputy Hyland's amendment is simply seeking to eliminate that possibility which could give rise to most unfair consequences.
That seems to give a new concept to section 2 and, if that is so, there is something wrong with the construction of the Bill. If animals stray on my property, have I no authority to drive them back on to the public roadway? Am I supposed to leave them there in case I cause an accident? If that is the case, there is a serious defect in the Bill and I am asking the Minister to clarify it.
As the law stands, if you drive cattle off your property on to the road, you are liable for any damage they may cause. In many cases, cattle could stray in and out of your garden without being noticed. Would you be responsible for an accident in such a case? You might be told that you should have kept your gates closed but many modern gardens do not have gates. Would the same apply to an open park?
(Dublin North-West): I speak as a Dublin Deputy and I know the problem in respect of animals straying into people's gardens. There is a serious problem in the city in regard to itinerants' horses continually straying in estates. People have a right to put those animals out of their gardens and if, in doing so, the animals are injured the person who put the animals out is responsible. That law should be changed as this kind of thing happens continually. Perhaps the Minister could clarify this and I should like him to accept the amendment.
The amendment deals to some extent with section 2. It is trying to protect the owner of unfenced property or where there is trespass. I thought that section 2 applied to places like the Curragh, County Kildare, which is open grazing land for sheep. They come on to the public roadway but the owner of these sheep is not liable for any damage caused. I always assumed that that was the case and that where animals stray on private property in urban or rural areas the owners are not responsible for damage caused. If that is not so I would need to have some reference made to it before I could offer further comment on the amendment. I assume that what is embodied in the amendment is already part of the Bill. I hope I am right in that regard.
Section 2 does not cater for this kind of situation. The section is quite specific about areas such as the Curragh and other traditional open areas. It does not make any specific provision for the case I am endeavouring to cover by my amendment. I have given the classical example of animals straying of their own accord and causing an accident and perhaps even loss of life. The case where animals are driven out by the owner of the property on to the road and cause a serious accident will be interpreted more seriously in the courts.
I would be happy to withdraw the amendment if the Minister can give us a categorical assurance that under the terms of the Bill the property owner is fully protected. If she cannot give such an assurance she should not oppose the amendment until such time as she is in a position to satisfy Members on both sides of the House that property owners are not at risk but are fully protected in that kind of case.
This is a fundamental amendment. If it serves no purpose other than to clarify the matter it will have done a good job. There was quite an amount of public concern in relation to it arising from the debate on Second Stage. We had a very constructive and objective debate and the Minister's replay was a very comprehensive one. The Minister is almost off the hook now because this is the last controversial amendment but it is an important one. I hope the Minister will be in a position to put our minds at ease and say that the property owner is fully and adequately protected in relation to any claim for damages which might result from an incident such as I have described.
I cannot give a categorical assurance. It is not appropriate to lay down a black and white rule as to liability in such cases. It would not be acceptable for an occupier of land to drive trespassing animals on to the public road into the path of an oncoming vehicle and then have statutory freedom from liability even where serious damage or injury was caused. This is a case where it would be more appropriate for the court to decide the degree of liability having regard to the circumstances of the case. It appears unlikely that a court would hold the occupier of the property to be liable for damages caused by an animal in the circumstances referred to in the amendment, that is, where the animal strays on to the occupier's land, escapes from it and subsequently causes damage.
The Minister's reply confirms my worst fears in relation to the section and the House will now see the importance of my amendment. It is impossible to accept that the owner of a property cannot remove animals which stray on to the property and cause considerable damage. This amendment is very important. Under the terms of the Bill the property owner could be held liable for damages arising from an accident as a result of having put animals off his or her property. What is the owner of the property to do if he or she finds eight travellers' horses stampeding on his or her property and destroying, say, the front lawn? Are they to close the gate and allow the horses to do further damage? Where does the person go to have the animals removed? How long before they can be legally removed? What amount of damage would be done in the meantime and what redress will the property owner have against the owner of the animals who very often cannot be found?
There are two very serious aspects to this amendment. I hoped the Minister would have been able to put my mind at ease and say that the property owner would not be liable. The Minister should not oppose this amendment until we are in a position to have further clarification of it. It is so serious that no one on either side of the House could accept this part of the Bill. I hope the Minister will find it possible to accept the amendment but I think it is unlikely. However, it is not unreasonable to ask that the remainder of Committee Stage be deferred so that we can have full clarification of this section. I do not want to create an undesirable position for the Minister but it would be for the best and in the interests of the people if we deferred the debate until we have been assured on this point. On further consideration with her advisers and with the Minister it might be found possible to accept the amendment or to find some other form of wording to cover what I am asking the Minister to do.
This is a matter we cannot slide over. I am tempted to have a division on this because it is of fundamental importance to the Bill but I do not want to call a vote unless I have to. It would be better if the Minister accepted the suggestion I put to her. We should defer further consideration of Committee Stage until the Minister is in a position to state exactly what the position is in relation to this section. Nobody will thank us for allowing the Bill to slip through the House without knowing exactly what the position is in relation to it.
The Minister's answer is not acceptable. If necessary I will put our amendment and have a division on it. It is fundamental to the Bill and it is fundamental in the interests of the protection of the rights of citizens. We should endeavour to weight our legislation in favour of self-respecting, law-abiding citizens and not for the protection of people who are flouting the law and deliberately allowing animals to stray on the roads and cause destruction to property.
I am not an urban Deputy. The leader of my party and many urban Deputies in the party brought to my notice the very serious problem that exists in Dublin and other cities of wandering horses. As a rural Deputy I can observe that casually. Since the introduction of the Bill I received many telephone calls and letters from urban dwellers pointing out that this is a major problem in the cities. I would not have thought so as a rural Deputy. My colleague, Deputy Barrett, confirmed that in his contribution today.
We must take a stand on this. Instead of forcing me to call for a division, I would prefer the Minister to agree to my request to defer further consideration of the remainder of Committee Stage. There are only a couple of amendments left, some of which are the Minister's and I will be quite happy to accept them. We would be doing a grave injustice to this House and to the people if we glossed over this.
A division will not resolve the problem. It will resolve it from the Minister's point of view because she will succeed in getting Committee Stage through the House. It would not be in the best interests of anybody to have a division and let that be the end of the story. It would be much more desirable to have the point clarified. The Minister should agree to my request until we can get definite clarification on the point.
This amendment is slightly confusing. It reads:
In page 4, before section 5, to insert the following new section:—
"5.—In urban areas, no liability shall attach to occupiers of property where animals already straying enter into and escape from property where the occupier of the property is not the owner of and has not custody of such animals.".
It does not say that the occupier of the property has driven out the animals. I do not think this amendment is necessary. The animals could go into and out of property without the occupier knowing it happened. There may be an obligation on the owner of the animals. I understand that the amendment deals with cattle that came from a farm and made their way into a public park or private property and left that property at 3 o'clock in the morning without the owner knowing that the cattle were there. It would be most unreasonable to suggest that that person should be responsible for the cattle. I could understand the logic in making the owner of the cattle responsible, but I cannot see in my wildest dreams why we should have an amendment to protect somebody who did not know the cattle were on his property.
The Minister indicated clearly that it was not legally acceptable to turn animals back out on to the road. If I understood her correctly she was not able to confirm that there could be a claim against the owner even if the stock strayed out of their own accord. I do not think Deputy O'Brien's point of view is in accord with the Minister's reply. The owner of the property would still be put to the expense of having to defend himself or herself in a court case arising from a claim for damages. Why should the owner of a property be put to that unnecessary expense when he was not a contributor to the accident in the first instance?
I will withdraw my amendment if the Minister can give us a categorical assurance on this point. She is right not to give it when she feels she cannot give it and when the advice available to her is that she cannot give it. This is an essential part of the legislation. I want to hear whether the Minister will accept my request that we adjourn Committee Stage to enable the matter to be clarified legally for the House. If the best legal advice available to us confirms that the owner of the property is not protected, this is a very desirable amendment. I should like to hear from the Minister.
When I spoke on this amendment I was not supporting it. I assumed that the Bill took account of the amendment. Where in the Bill is there a change in the existing legislation to the extent which is causing concern to the Deputy? Under the existing law when animals stray on to a farmer's property, the animals are not turned back out on to the public road. The Minister gave an assurance that that cannot be done now where animals trespass on to a farmer's land. It would not be proper to turn them back out on to the road.
There is an understanding between farmers that that does not happen and that the farmer will try to find the owner of the animals and draw his attention to the fact that they are trespassing and have them removed in the normal way. Where animals trespassed into private housing estates the owners and occupiers were protected under the law and often sought and were granted a considerable amount of compensation for damage done. The Bill is designed to give a measure of protection to people who have been injured, maimed or seriously disabled by straying animals on public roads. Section 2 endeavours to give that protection.
Section 5, as I understand it, deals with the impounding of animals and the procedures attached thereto. Perhaps someone will explain why this amendment is being tabled. I agree with the substance of it, but this protection is already embodied in legislation. No adjudicator in court would give a decree against a person in a housing estate for even driving off animals in these circumstances and the amendment is not put as strongly as that. The animals have no business being in these areas. They cannot be left in a front garden overnight. Also the fact that there are open plan estates is taken into account. I cannot see any difficulty arising out of that section. I hope an assurance can be given to allay the Deputy's doubts. If a case has been brought to court under that heading, attention should be drawn to it. This amendment is drawing unnecessary attention by the Deputy's belief that something like that is necessary in the Bill. I ask him to consider the amendment on those grounds.
(Dublin North-West): I should like to feel as Deputy Dowling does about this. Under the present law if an owner of property drives an animal on to the road in an urban area, even though he is not the owner of the animal as the owner of that property he is liable. With regard to my own constituency, I earlier used the word “plague” with regard to itinerants' horses. I am referring to a vast area of Finglas, where there is a very serious problem with hundreds of straying horses. If the owner of the property on to which these animals stray drives them out and they are in contact with a pedestrian or a motor vehicle with the resultant serious injuries, from whom can that injured person claim compensation except the owner of the property? The itinerant can never be found. If the Garda make inquiries about a certain named individual there could be ten with that name in the camp.
I support Deputy Hyland in his plea to the Minister to accept this important amendment. Deputy Dowling did not think there had ever been a court case but there is always a first time. Perhaps there have been previous cases that we do not know about. I appeal to the Minister and her advisers to accept this amendment.
The amendment makes no reference to people driving out those animals. It mentions animals straying. The amendment is not necessary to protect the person who owns the land, because he is probably in bed and unaware of the cattle straying on to his lawn and could not possibly be held liable. If the amendment were reworded to include the driving of cattle on to the road, it would be a better amendment.
I have looked at the wording of my amendment. While I agree that it does not refer specifically to somebody turning out the animals on to the road, I would have thought that the spirit of the amendment would imply that. The scope of the amendment could also be broadened in the sense that I commence with the phrase "in urban areas". That is the difference between what I have been saying and what Deputy Dowling has been saying in relation to agricultural areas. I fully agree that, generally speaking, there is a good understanding between land owners and stock owners in rural areas in relation to the turning out of livestock on to the road. What Deputy Dowling has said is absolutely correct. I suppose in strict legal terms it would apply to rural as well as urban areas. I was prompted to table this amendment because of the views of many urban dwellers who contacted me in relation to this problem. I would be the first to admit that I am not familiar with the entire urban scene.
I would have been very happy if the Minister had been able to tell the House that there would be no liability attaching to the owner of the property in the event of an accident occurring. I was not sure of the exact legal position but did get legal advice. That legal advice available to me indicated that it would be a marginal situation in legal terms. Because we are putting together a Bill in relation to this area of administration, I thought the matter should be clarified. That is what I am trying to do in this amendment: to get positive clarification about the position of the property owner. The Minister's reply has not been very reassuring. I think the Deputies opposite will agree with me on that.
Deputy Dowling has said that I should not have raised this matter, although he did not put it as bluntly as that. He implied that I was stirring up something that I should not. That is not a fair comment to make. The Members on this side of the House would be happy to accept the situation if the property owner were fully protected under this section. From what we have heard from the Minister, he or she is not. Instead of having to accept the accusation that I should not have raised the matter — and there was nothing vindictive in what Deputy Dowling said in this regard — I feel that I have done a service to the House in highlighting a possible serious anomaly in this Bill. We would all be delighted to accept from the Minister now or at some stage an assurance that the property owner is fully protected. The Minister is more familiar with the urban scene than I am and I am sure she must come across this problem far more often than I. I do not think I have ever come across it, personally.
Dublin Deputies on this side of the House are no different from the Deputies on the Government side and they come across this problem on a very regular basis. It is an area of extremely serious concern to a large number of urban dwellers. They would not thank us if in this Bill — which to some extent is designed for their protection, in fairness — there was a section which held them responsible for damages as a result of animals straying from their property on to the road. The Minister has not yet indicated whether she would agree to postpone this section until we get definite legal advice on it. If not, and I do not call votes for the sake of calling them, I would have to call for a division to highlight the importance and significance of this matter. I assure Deputy Dowling that I am not doing this for ulterior political motives. I am doing it because this is a matter which at least needs clarification and at worst needs amending. My request to the Minister is fair and logical and I hope she can agree to it.
If the Chair might intervene for a moment. I wish to point out that under Standing Order 92 and rulings given on it by my predecessors it would not be possible at this stage to postpone consideration of the section in question after consideration has been started on it. I am not going into the merits of the following, because that would be wrong of me, but a device sometimes used to get over a situation like this is that the Minister might say "I will have a look at this between now and Report Stage and say what I think then". That is sometimes done.
We are discussing urban areas and the liability attaching to occupiers of property where animals, usually horses, stray. It would be desirable if the owner of property or other agents who will be given power in this legislation would get the Garda to intervene and have the animals impounded. On the other hand, there is the risk that an angry property owner would just open the gate and, with great gusto and energy, chase the animals out on to the road——
Very understandable.
——where there would be a risk of injury to cyclists or to motorists. The responsible civic-minded thing would be to have the animals impounded. I have trouble with the amendment as it is worded. I am an urban Deputy and I accept that perhaps there is not a sufficient safeguard for the property owner in this instance. However, there would be difficulty with the amendment because it is rigid.
I have said that I cannot accept the amendment but in view of the strength of the views expressed perhaps it could be looked at again. I do not want to be unreasonable. Perhaps the points raised could be considered on Report Stage.
I have endeavoured to be reasonable with the Minister in the course of this debate. The Minister has told us she finds it difficult to accept the wording of the amendment. If that is so I have no objection to her bringing in her own form of wording provided it gives the level of assurance I am seeking in the amendment.
I am sure Deputies on all sides will agree that the Minister has not been reassuring in her second reply. She talks about the danger of the property owner driving stock on to the public road and, by implication, she is saying that in so doing the person is committing an offence and is breaking the law. If that is the case, the section provides no level of protection for the unfortunate urban or rural dweller who finds his property being destroyed by, for example, travellers' horses. With our knowledge of what is happening in urban areas and the destruction that is taking place, I consider we should avail of this Bill to provide that necessary level of protection for the property owner.
Naturally I accept the viewpoint expressed by the Chair. Perhaps I am not as familiar with the procedures of this House as I should be and perhaps the Chair will give me some guidance on the following point. In the event of the Minister giving further consideration to the amendment on Report Stage, will I be in a position then to challenge the Minister in relation to this section? I am asking this question because of my desire to cooperate with the Minister and with the Chair. However, I would need a categorical and definite assurance that on Report Stage I will be in a position to put forward this amendment and, if necessary, to vote on it. I do not want to involve the House in a division this evening.
Perhaps I may explain the position to the Deputy as I understand it. If the Deputy withdraws the amendment on the understanding that the Minister will look at the position again between now and Report Stage and perhaps advise him before Report Stage is taken whether she proposes to accept the amendment in a redrafted form and if she comes to the conclusion she cannot accept the amendment or that it is not necessary to bring in any amendment in its place, then it would be open to the Deputy to put down his amendment again on Report Stage and force it to a division.
I think that is reasonable. I have endeavoured to be reasonable throughout this debate which has gone on for quite a while. I do not wish to put the Minister in a spot. I will accept this amendment has emerged as fairly controversial and that Members on all sides would like clarification on it. As I have said, we would be delighted to get an assurance from the Minister that the property owner will be fully protected. In that case we will withdraw the amendment and we will consider it further on Report Stage.
It is very dangerous for the Chair to get involved in this but, having got into it, I wish to leave the matter clear. Is the Minister saying she will look at Deputy Hyland's amendment again and deal with it one way or the other on Report Stage?
I am saying I will not accept the amendment but accept the points raised and the strength of opinion expressed. Certainly we will look at it in view of all of that.
Is the Chair advising me that I would be within my rights in retabling the amendment?
If there is no vote on the amendment now, the Deputy can put it down again on Report Stage.
The Opposition speaker said that I thought it was wrong of him to put down the amendment. I consider he made an excellent contribution to the debate. I am very glad this debate has taken place and that it has proceeded in the direction it has taken.
Deputy Hyland is withdrawing his amendment on an assurance given by the Minister?
I am happy to do so.
Amendment, by leave, withdrawn.
Will Deputy Dowling move to report progress?
Progress reported; Committee to sit again.