Dáil Éireann díospóireacht -
Wednesday, 15 May 1985

Vol. 358 No. 6

Estimates, 1985. - Animals Bill, 1985: Committee Stage (Resumed) and Final Stages.

SECTION 5.

Minister for Justice (Mr. Noonan,

Limerick East): I move amendment No. 11:

In page 4, subsection (2), line 45, after "local authority" to insert "or by the Commissioners of Public Works in Ireland".

This amendment to subsection (2) is to ensure that any private pound facilities provided under section 5 will be available in relation to impounding on behalf of the Commissioners of Public Works as well as for the impounding by members of the Garda Síochána and local authorities. This will be secured by including a reference to the Commissioners of Public Works at the end of subsection (2). I believe the Opposition were looking for such an amendment.

Amendment agreed to.

Mr. Hyland

I move amendment No. 12:

In page 5, subsection (3), between lines 21 and 22, to insert the following:

"(h) the standard to be applied to pounds and to the care of animals therein.".

In the amendment we are asking the Minister to take into consideration the need to make adequate provision for pounds and the standard to be applied to pounds and the care of animals.

Mr. Noonan

(Limerick East): I accept the amendment. It is a good idea.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 13:

In page 5, subsection (4), line 24, after "animals" to insert ", of which the owner is unknown or cannot be found,".

The amendment is necessary because on the sale of an impounded animal whose owner is known, the net proceeds of the sale after deduction of pound fees and expenses are returned to the owners. In any case where the owner is unknown or cannot be found the net proceeds of the sale of the impounded animal are retained by the local authority. Accordingly, in such cases the amount of the net proceeds may be deducted in arriving at the local authorities net expenditure in relation to the pound. This is something that was brought to our notice in the course of the debate. It is not a contentious amendment. It improves the subsection.

Amendment No. 13 agreed to.

Question proposed: "That section 5, as amended, stand part of the Bill".

Mr. O'Dea

Section 5 basically deals with impounding. The purpose of amendment No. 10, which was discussed the last night, was to deal with a situation where animals — the most likely example would be horses — stray into a person's garden, particularly in an urban area. The net effect of the other provisions in the Bill is that if a person turns those animals out onto the public highway and an accident occurs, the person can be sued for negligence and will more than likely be found liable. The purpose of amendment No. 10 was to correct that situation. The refusal of the Government to accept the amendment means that the situation is not corrected. I note that in this section dealing with impounding there is not a provision to cover that situation. If one is to contact a local authority or the Garda Síochána to impound an animal this can only be done when the animal is found in a public place or in a public park and so on, as listed in the Bill. I would like the Minister to deal with the situation envisaged by Deputy Hyland in his amendment because this is directly relevant to the section, to the lack of impounding powers for various State and Garda authorities under this section. If a horse wanders into a person's garden in a suburban estate must he leave it there? What remedy has this person if he is not to be found liable for negligence?

Mr. Noonan

(Limerick East): Amendment No. 10. was discussed fully on the last night. The amendment put down by Deputy Hyland suggested that:

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.

What was suggested in the amendment was that, if an animal strayed from a farm and went into an urban garden and strayed back out, there should be no liability on the suburban householder. That is the existing law, so the amendment put down would not have changed it. Deputy O'Dea has put a different case and his case would require a different type of amendment. Deputy O'Dea talks about a situation where not only does the animal stray from the land into a garden but where the owner of the suburban garden drives the animal out. The problem there is that we might give immunity to anybody to drive an animal out without any care on to a public road. If we did that we would have a situation where a person could uncaringly drive a cow or a horse out in front of a bus causing a fatal accident and he would not carry any liability for the accident. At the moment if somebody drives an animal out in those circumstances without taking due care, the matter is decided by the court. If a person drives out animals with due care he would not be deemed to be negligent by the court.

It is impossible to legislate to give the person total immunity. It is better to leave it to the courts to decide on the degree of negligence involved in such a case. The ensuing step in relation to impounding would be that the Garda, the members of the local authority, or the Commissioners of Public Works or their agents would be in a position to impound animals then. I understand exactly what Deputy O'Dea and Deputy Hyland have in mind and it is something which has been thoroughly debated. The Deputies will appreciate the impossibility of giving an immunity which would enable people to behave in any way they liked. We are leaving this matter to the courts. The original amendment put down was merely a statement of existing law and it would not have brought about the change now being suggested.

Mr. Hyland

This section has caused a lot of concern. I had discussions with officials of the Department but we have since given a lot of consideration to it and we feel that this section unnecessarily exposes the private property owner. I refer specifically to the urban scene. I am thinking in terms of the small urban garden which is taken over by stampeding horses or donkeys which are, for instance, damaging the front lawn and where there are not immediate facilities available to the owner to comply with the law. By complying with the law I mean having the animals legally impounded. That facility is available but it is not immediately available. It is unfair to expose that private individual to the rigours of the law. Although the courts will rule on it eventually, we should at least in this Bill endeavour to protect the interests of the property owner. I have listened attentively to the Minister's logic and I can see some justification for the points made but on balance I still hold the view that it is unfair to expose the property owner to the extent that he is being exposed in this section. I discussed this idea with Deputy O'Dea and other colleagues in the parliamentary party and we got some independent advice on it. It is generally held that our amendment would provide the level of protection to which the property owner is entitled in the final draft of the Bill. Some of the points which the Minister put forward are relevant, but in the final analysis the Minister's points would be adequately covered by the courts who would make a decision on any claim for damages that might arise. On balance I feel that the property owner should be protected.

Mr. O'Dea

I take the Minister's point and I accept that it is impossible to find words to cover every possible situation in legislation and that sometimes it is better to leave the matter to the courts. However, by leaving the matter of deciding negligence to the courts the Minister cannot come into the House and assure us categorically that in no circumstances whatsoever will a property owner who turns stray animals out on to the road not be liable for negligence. Take, for example, the case of somebody living beside a main roadway who knows that the volume of traffic will be large. He can turn the animals out on to the roadway and use all possible due care. He can ensure that they are turned out with the maximum care, but he does so in the knowledge that they will be out on a main road, such as the road from Dublin to Limerick which is familiar to the Minister and me, and that it is very likely that an accident could occur due to the volume of traffic regardless of the care he has exercised in putting the animals out. The concept of negligence is based on reasonable foresight, and nobody can tell me that somebody who puts out an animal, using all the care in the world, on to the main Dublin road out of Limerick could not foresee the possibility that that animal could cause an accident when it was out on the main road. In those circumstances I argue strongly that the courts could find a person who put out the animals on to the road responsible for negligence or liable in negligence regardless of the care and attention he has used in what I describe as the putting out of the animal on to the roadway.

Regarding this section and the impounding powers, the Minister has admitted that somebody who puts an animal out on to the public roadway can then contact the local authority, the Garda or whatever who have power to impound animals found in public places, but why not extend this right or something approximating to it to where animals are trespassing on to private property? Why not give the private property owner the right to contact some of those authorities with a view to impounding those animals when they are trespassing on his property due to the fact that he may be found liable in negligence if he puts them out on to the public road?

Mr. Cowen

If the suburban householder turns the animal out on to the road does it not revert to being a stray animal? This legislation is clearing up the anomaly which exists at present whereby the owner of a stray animal is not liable for any damage done by that stray animal in making the owner of that stray animal liable for whatever damage that animal may cause on the roadway or in a public place. If the suburban householder turns that animal on to the roadway is that animal deemed to be a stray animal and does the liability revert to the owner of the animal? Would the duty of care on the householder be minimised? Can we get some legal assurance as to how it will work out practically if a case is brought if the suburban householder using due care puts that animal out onto the roadway? Would the courts take the view that that animal under this Bill is deemed a stray animal and that the liability reverts to the owner of the animal in the first instance? When the Minister of State, Deputy Fennell, was here in place of the Minister on the last day we debated this, this matter could not be cleared up. It was said that the suburban householder would have to hold that animal on his property and call the Garda, the local authority or now the Commissioners of Public Works to come to impound that animal. You could have the crazy situation of a householder holding on to a horse or a cow until the Garda come and presumably they or somebody must bring the animal away and you could have gardaí out with ropes bringing cattle down the road at about two miles an hour. It does not seem practicable to expect a suburban householder to have the responsibility of waiting for people to come to impound the animal and bring it away. Can we be assured tonight that if the property owner using due care puts the animal out of his property on to the roadway or whatever, the animal then would be deemed to be a stray animal and the liability would revert to the owner of the animal under section 2?

Mr. Noonan

(Limerick East): Deputy Hyland has put the case very well in his contribution. As I told him, section 5 on the point we are debating now makes no change in the existing situation. It is not intended to change that situation. Therefore, section 5 is not putting any unnecessary expense or exposure on the private property owner. It is simply leaving the existing law as it stands. The Deputy's amendment which he moved and was debated the last time the debate took place here does not deal with the point now being debated and is merely a restatement of existing law. If an animal wanders from private property on to other private property from which it wanders again subsequently on to the public roadway the onus of negligence lies on the original property owner, not on the property owner on to whose land it wandered before it went back on to the road, and all the Deputy's amendment does is restate that.

To come to the situation to which Deputies are directing their attention, what do you do if a cow strays into a neighbouring farm and the neighbouring farmer drives it out on to the public road? He has two options, and in practice it would work differently in the country from the way it would in the city. Restraining a large animal such as that and calling on the Garda or the local authority to impound the animal is part of the impounding process, and that option would quite well be open to somebody who had enough room to restrain a large animal. In suburban areas I can see the practical difficulty of retaining a horse on the front lawn if the whole site is one eighth of an acre. Deputy Hyland has stated this matter very clearly. In that situation if due care is exercised in putting the animal out on to the road, then the onus of responsibility reverts to the original owner of the land from whose property the animal strayed.

In regard to legislation there are only three options here. You can introduce strict liability for the action of the owner of the suburban household who drives a horse out on to the road. That would be blatantly unfair when his property has been invaded in the first instance. The next option is the other extreme. You can give absolute immunity if that person is driving it out and you can say, "OK, it strayed into your front garden and you have absolute immunity if you drive it back out". The problem there is how to get over the situation if they get the dog and chase the horse out through the front gate and it knocks a kid off a bicycle. It is obvious that no care whatsoever was taken and the action was most careless and negligent. I do not think that as a legislature we can give that kind of immunity.

The only other option is to leave the law as it stands and allow the courts to decide on it. Deputy O'Dea asked whether the right of the Garda or the local authority should extend to coming on to private property. My advice is that it would, because it would be taken as part of the impounding process that they could come on to the private property and put an animal into the pound. I do not think we can move from that. I am aware of the level of debate that has taken place about this point over a number of years. Wandering animals in urban areas is one of the chestnuts which come up frequently, but I do not know of any case, and no case has been brought to my attention, of an owner of a suburban house who turned an animal out on to the road being sued for subsequent damage. Therefore, this is a perceived difficulty rather than a real difficulty. I would like to hear from Deputies opposite if there is such a case in existence and if there is any case even where the owner of a suburban property was brought to court for subsequent damage.

Mr. O'Dea

The Minister stated that, under existing law, if a suburban householder turns an animal out into the public roadway, then the situation of liability reverts to the original owner. As I understand it, that is not the position in law. The fundamental question here is a question of foresight. If somebody puts an animal on to the public roadway and they foresee an accident can occur, they can be held liable in negligence. Did I understand the Minister to say that under existing law a private householder can contact the Garda with a view to impounding the animal if they can restrain it on their own property? Is there authority for that?

Mr. Noonan

(Limerick East): My advice is that although there is no right of private detention of animals under existing law it appears that in practice there could be no objection to the temporary restraint of a large animal by the owner of the property trespassed on pending the arrival of the Garda or the local authority to impound the animal. This could be regarded as part of the impounding process and my advice is that that would be all right.

Mr. O'Dea

I accept what the Minister says and that that is his advice, but would he consider having something drafted to make this clear in the legislation?

Mr. Noonan

(Limerick East): It is not necessary because it is on the record of the House.

Mr. O'Dea

With all due respect, the record of the House is irrelevant so far as the courts are concerned.

Mr. Hyland

I am still not very happy with this section because the problem of stray animals is on the increase. Five or six years ago the problem would not have been as serious in urban areas as it is today. The immediate instinct of the property owner is to remove the animal from his plot or front garden. To legislate to hold him responsible, as we are doing if we accept the Bill without amendment, is putting him in a very unfair position. I do not want to be awkward about this because we want to be helpful. We had a very lengthy and constructive discussion on the earlier Stages, but I hoped that this section, which is causing such annoyance, would have led the Minister to accept our amendment. This amendment protects the property owner but it does not take from the eventual action taken by an injured party if such action is necessary, because the courts would have to adjudicate the action.

In my view, the property owner should be protected, especially as this is a growing problem in urban and rural areas. I accept that we cannot legislate for urban as distinct from rural areas. Therefore, perhaps the word "urban" should be deleted from my amendment to make it more general.

Mr. Cowen

If the householder puts out the animal with due care, if the criterion for due care is reasonable foresight, and if it is accepted by the court when a subsequent case is taken that the householder did use due care when he put the animal on the road, at what stage does the duty of care transfer from the householder to the owner of the animal? Where does the liability go?

Mr. Noonan

(Limerick East): In section 5 we are not changing existing law so far as this point is concerned. If an animal wandering on the public roadway wanders into somebody's front garden, that wandering into the front garden does not carry with it any responsibility on the householder. When he puts it back on the road with due care and attention, he is putting it back where it was, and the obligation is transferred to the original owner of the animal. We can give an immunity to somebody driving animals out. There is not another position. It has to be left to the courts.

Mr. O'Dea

I do not have them with me but I can send a number of authorities to the Minister's office which suggest that the situation is different from what he says. If an accident occurs within the immediate period after the animal has been put out, the person who put the animal out could be taken to have reasonable foresight and to be held liable in negligence.

Mr. Noonan

(Limerick East): I would like to have those authorities.

Mr. O'Dea

I will send them to the Minister's office tomorrow.

Mr. Noonan

(Limerick East): Will the Deputy also send the material he promised the Minister of State, Deputy Fennell?

Mr. O'Dea

Yes. The situation as regards impounding is still unclear. The Minister says it is on the record of the House that if the animal wanders on to somebody else's property the property owner has an implied right to restrain the animal until such time as the Garda or the local authority come to impound the animal. Perhaps there is in general law some kind of authority, but I cannot find anything in this legislation to cover that situation. This legislation refers to animals wandering on public roads or in public places and the only situation envisaged is where the local authority or the Garda would be contacted in the case of an animal wandering in a public park, public place or public road.

Mr. Tunney

I would like the Minister to tell the House how the position could be improved if he does not accept this amendment. The greatest menace in urban areas arises from the fact that animal owners, especially horseowners, are abusing the existing legislation. These people have unashamedly and flagrantly put horses into the Phoenix Park knowing they are protected by the existing law. If the authority put the animals on the road, there is some doubt about the legal position. Animals are moving into farm land and the landowners are prohibited from putting them out. This is one of the most serious abuses of the law. On the edge of Dublin city there are men who do not own an acre of land but who have 30 or 40 horses grazing anywhere they can get it. If I or any other property owner attempt to put those horses off our property, there is a risk that I may be responsible for any accident that might happen. I do not believe there is any level-headed law-abiding citizen who sees a stray animal, and knowing it is a case of perfect stray, would be so foolish as to put that animal off his land without having due regard for the safety of other people. However, my concern is this. If one visits the Phoenix Park, a park which belongs to the State, one will find at least 70 or 80 horses there.

The Minister of State has advised me that he cannot do anything about this abuse. We now have an opportunity of correcting it and bringing those horse tanglers or dealers to justice. They have no respect for anybody's personal safety or property and yet we are reluctant to make provision for one mechanism through which we could get at them. On the edge of Dublin, there are farmers who live in dread of getting up in the morning and finding ten or 12 horses on their land eating their crop of wheat or oats. If you are a law-abiding citizen, you will not put the horses out on the road but the owners will come, perhaps a fortnight later, in the dead of night, break down the fences and take out the horses. They will then run them along the road. I said, when the Minister introduced this legislation that, as they say in the Gaeltacht, it was "teacht an tseagail", it was a long time coming. More power to the Minister for bringing it before the House. However, this matter will not come before the House again in my lifetime and a mechanism should be inserted to correct this abuse. Unless the inhibition on the person who is abused is provided for, the menace will continue.

Mr. Prendergast

I should like the Minister to elaborate on a problem, akin to that which Deputy Tunney outlined, which has arisen in St. Mary's Park, Limerick. There are families living there who have kept horses for generations. Each one has a premises, like a yard, where they keep their horses but they have no pasture where the horses may graze. There is a huge commonage, a swamp, adjoining St. Mary's Park and it is irrecoverable from the point of view of the local authorities. These people have come to me, as mayor of the city, to say that each of them is prepared to put up £100 to fence off a section of the commanage if they are given permission by Limerick Corporation to do so. They will ensure that the place is locked and that the horses will not do any damage to the public. In other words, it is a kind of pound arrangement with the local authority, which is very commendable. The corporation wonder if the Bill specifies that you must own property yourself to hold a horse in before you could do anything like that. Would the Minister be good enough to clarify that position? These are a group of well disposed horse owners and they have constructively put forward this proposal to keep their horses fenced in. If thought or provision has not been given to that concept, it should be considered by the Minister because it is a constructive approach by the people concerned.

Mr. Noonan

(Limerick East): There are a lot of piebald ponies being trotted up and down the floors of Leinster House tonight. Deputy Prendergast seems to be suggesting a private arrangement between horse owners and Limerick Corporation in regard to fencing off part of the property of Limerick Corporation. I suggest that he uses his good offices to bring that deal to a satisfactory conclusion. If he needs a tangler I will give him a hand.

Mr. Prendergast

I would gladly do that but the corporation wonder if they are prevented by the terms of this Bill from doing so because the people themselves do not have fields to keep horses in. That is the difficulty.

Mr. Noonan

(Limerick East): Deputy Prendergast's suggestion does not come within the ambit of the Bill and it would not prevent the corporation from making an arrangement with horse owners if they decided to give them part of a public open space which is not used for any other purpose. Deputy Tunney raised two points. The provisions in the Bill would enable the problem regarding the Phoenix Park to be dealt with because we are extending the impounding powers not only to local authorities and the Garda but also to the agents of the Office of Public Works. As the Phoenix Park is owned by the OPW they would have the power to impound. Obviously, there is a local authority implication in that they must provide adequate pounds and it is their function to do so. However, the Bill enables them to provide temporary pounds and to make arrangements for private pounds and so on.

With regard to farmers on the margins of the city, their situation is covered by existing law. The right of private detention of animals existed in law a long time ago but it was removed because it gave rise to rows between neighbours. When cattle wandered from one farm to another, the farmer on whose land they strayed decided he was going to hold on to them and it made life rather difficult in rural areas. It was removed for public order reasons. If an explicit provision for detention of animals was not granted we would resurrect all those problems, especially among adjoining landowners. If the occupier of a property does not known to whom the animals belong, he is entitled to hold on to them. Of course, if you know who the owner is you do not have the right to hold on to them. You are entitled to impound the animals and call on the Garda or the local authorities to help in that impounding. The Bill will certainly help in that regard. Both the problems which the Deputy raised are covered in the Bill provided that those who are now given the responsibility of enforcing do so and that the local authorities use the powers under this Bill and existing powers to provide pounds to deal with the problem.

We may not have such a full debate on subsequent sections but I should like to refer the Deputies to the benefits of section 7. Before this a fine in the sum of 50p existed and that has now been raised to a sum of £150 and a second offence will mean a fine of £350. It was an offence to allow animals to wander on the public roads but under the 1861 Act the maximum penalty was so low that it was not worth taking the case to court. The Garda tried to deal with the problem of wandering horses by taking summons under the Road Traffic Act on the basis that they were obstructing the highway. However, they were not charging them with the offence of allowing animals to wander on the public road. The offence existed in law in the 1861 Act but the maximum fine of 50p was not a deterrent. I also refer Deputies to the table at the end of section 6 which will be very effective if the Garda act quickly and if the courts use the new maximum fines. If they hand down penal penalties for these offences, the wandering will stop very quickly.

Mr. Tunney

Perhaps the Minister did not understand precisely the point I made or maybe he has chosen to sidestep it. With regard to the Phoenix Park the Minister of State, Deputy Bermingham, told me that the pound would be necessary. They already have the power to take these horses and get rid of them. The people who put those horses there do so in the full knowledge of the law. They drive the horses to the park and having got to the park they leave them there happy in the knowledge that the park authorities and other authorities will not put them out on the road. They are abusing the law and will continue to do so because they know the horses will not be put out.

Mr. Noonan

(Limerick East): The law was so weak that they did not put them out and they did not have other alternatives. They will now have an express power to impound them. If the owners do not pay the poundage fees which I intend to pitch at a fairly high level, the horses can be put down humanely.

Mr. Tunney

Is the Minister telling me the Office of Public Works have not got the authority at the moment to impound those horses?

Mr. Noonan

(Limerick East): As I understand it at the moment, the Office of Public Works have the power to detain the horses and to sue for civil damages to the property, the same as any other land owner has the power to sue for damage caused to his property. The difficulty is that many of these owners are a very bad mark for a civil action. The law has not been effective.

Mr. O'Dea

The old common law was that, if an animal strayed from your property on to the public roadway, you were not liable for any damages. It was impossible to bring an action for negligence against you. Under the old law, if the animal that strayed from your property on to the public highway had strayed into your property and stayed there for a short time and then strayed out again, was the position any different?

Mr. Noonan

(Limerick East): As I understand it, you could be sued for negligence for the act of putting it out.

Mr. O'Dea

If you did not put it out, and it went out of its own accord, was the position the same as if you owned the animal in the first place?

Mr. Noonan

(Limerick East): As I understand it, yes.

Mr. O'Dea

Then Deputy Hyland's amendment is relevant and in order. Deputy Hyland's amendment states the old law, that is, the law of non-liability for negligence. The Minister is changing that in this legislation. We are trying to retain the old position in certain very exceptional circumstances. From that point of view Deputy Hyland's amendment is relevant.

Mr. Connolly

It is very valid.

Mr. Noonan

(Limerick East): I have not argued that. Deputy Hyland's amendment died the last night. We should not be discussing it at all. We are using this opportunity to tease out many of the implications of the Bill.

Mr. Connolly

How did it die?

Mr. Noonan

(Limerick East): It was defeated.

Mr. Connolly

The Minister is slightly inaccurate.

Mr. Noonan

(Limerick East): We started at amendment No. 11 tonight. Deputy Hyland's amendment is amendment No. 10. It is a new procedure of retrospective debate.

Mr. Hyland

The Minister is technically correct. We would be in order in moving the amendment on Report Stage. I got an assurance on that from the Ceann Comhairle the last night because we were not satisfied with the explanations given on the section and a few other sections. The section is controversial and has important implications in relation to actions which might be taken against property owners. It is not exactly correct to say my amendment is merely a restatement of the present position. Deputy O'Dea teased that out and the Minister agreed with him. Our amendment provides a level of protection for the property owner to which many speakers referred in the early stages of the debate. The amendment takes nothing from the Bill. It contributes to it. The courts can adjudicate on any claim for damages.

Mr. Noonan

(Limerick East): The amendment says one thing and the debate says a different thing. The nub of the issue we are debating is how does the man stand who drives the horse back out on to the road. The Deputy's amendment deals with the situation where the horse after eating the grass decides to wander back on to the road. The Deputy does not attempt to deal with the driving out aspect.

Mr. Connolly

What is he to do? Keep it in his back garden?

Mr. Noonan

(Limerick East): The amendment talks about the animal wandering in and then wandering out. That does not help.

Mr. Hyland

The Minister's amendments do not necessarily cover every aspect of a case. The spirit of my amendment should be taken into consideration. The amendment does not refer specifically to people involved physically in turning horses out on to the road. I accept that the Minister's argument in that regard is valid and logical. The Minister knows that the intention in the amendment is to protect the property owner who puts the livestock back out on to the road. The Minister may be technically correct, but our case is still extremely valid. The Bill will be all the poorer for the omission of the amendment. I ask the Minister to be a little more realistic in his approach to the amendment and to accept the case being made in good faith. I cannot see why the Minister wants to exclude from the Bill the area which we are trying to cover.

Mr. Dowling

I am concerned that there is not a sufficient level of protection for the property owner. I am particularly concerned about the farming property owner in the rural areas. I know there are problems in the urban areas but they are different to some extent. Deputy Tunney referred to horses being driven into fields of grass or corn. I have seen that happen. I would not be prepared to say to a farmer who found his good field of grass half eaten by horses——

Mr. Connolly

Now the Deputy is talking.

Mr. Dowling

——that he should exercise due care in turning them out on to the public road. I should like to have an assurance from the Minister. I know he is leaving it to the interpretation and the discretion of the courts. Disputes can arise between neighbouring farmers over trespassing. Something could happen which would leave a serious liability on an innocent party. This section is somewhat difficult to accept for that reason. Before the section is finally agreed, I should like the Minister to assure the House fully that, where reasonable care is exercised in putting these animals off property on which they have trespassed, no liability will apply to the landowner.

Mr. Connolly

What is a farmer to do if horses belonging to itinerants stray from the road into a field of corn? Can he be expected to leave the animals there and ruin the crop? We all know that his only option would be to turn those horses out on the road. The amendment proposed by Deputy Hyland is reasonable. I do not consider that its acceptance would place liability on the person who removed the animals from his land. However, that would be a matter for the courts to decide and we should leave it at that; but it would be unfair for any court to find against a farmer who, merely to save his field of corn or grass or whatever, removed from his land animals that had strayed on to it from perhaps the main road. In most such cases the farmer would turn the animals out but would not consider himself responsible for any damage caused by these animals subsequently. After all he would be merely returning the animals to where they had come from.

Mr. D. Gallagher

A problem I see in regard to animals wandering on to a farm or, as has been suggested, being driven on to a farm, is that an argument could be made to the effect that the fences on the farm were defective. There is no protection in the Bill for the farmer in this respect. It might be easy to claim that fences were not up to a certain standard, but even allowing for that it is not fair or just that the farmer concerned should be liable in respect of animals found on his land being put back on to the road. The Minister should consider very carefully what we have been saying in this regard. Let us forget about the courts for a moment and consider what the ordinary citizen, using his common sense, would do in the circumstances. I would have great difficulty in accepting a situation in which a person acting merely to protect his property should become liable to prosecution.

Mr. M. Brennan

Is a farmer to be held responsible in the event of his cattle straying on the road because of someone having left a gate open? I am thinking particularly of cattle straying on the roads at night thereby causing a hazard for road users. In the case of black or other dark coloured cattle or horses, it is almost impossible for the motorist to see them at night. Therefore I trust that in such circumstances the farmer would not be considered responsible.

Mr. Noonan

(Limerick East): Much of this ground has been covered before. Deputy Dowling made the point that the innocent should be protected, but frequently in the sort of situation we are talking of there is conflict between innocent parties. If the field of one innocent party is ruined and another innocent party is killed in a car crash as a result of the animals responsible having been turned on to the road, both parties should be protected and the liability should rest with the owner of the animals. This is not a simple and straightforward matter. I discussed the whole Bill with the farming organisations and they agreed with the steps we are taking. Presumably in those organisations there is good legal advice available.

The question of cattle wandering at night would be no different from their wandering during the day. Obviously if a gate has been left open thereby causing the animals to stray in the first place, the farmer would have a good defence. We are not placing strict liability on the landowner. We are simply removing the anomaly that existed in the previous situation.

There are certain matters that we must leave to the courts, and this brings us back to the nub of this debate. People are talking about the rights of landowners, but they are talking about the rights of two different landowners. First, they are talking about the right of the owner of the land from which the animals strayed and then they are talking about the rights of the owner of the land on to which the animals strayed. Obviously there is a conflict between the two. If we must lean on one side of the argument and state categorically in the Bill where the strict liability or the strict immunity lies, we would not be acting correctly because only a court could interpret a case in which there was the sort of conflict of interest I have outlined. We can only put forward the best law possible and then leave it to the courts to decide who is negligent. The courts are dealing with such conflicts all the time.

Deputy Connolly puts the matter very well when he asks what a man is to do if he finds horses trespassing in a field of corn. There are two options in such circumstances. First, the farmer can drive the animals from the field of corn and into a field where they would not do as much damage or he may ring the Garda and ask them to impound the animals.

Mr. Connolly

We have no pound.

Mr. Noonan

(Limerick East): The farmer is entitled to do that if he is not aware of the identity of the owner of the animals. Regarding Deputy Connolly's remark, perhaps if there were better councillors in the county there would be a pound. The provision of pounds is the responsibility of local authorities and, now that local elections are pending, perhaps the candidates would promise the people that if elected pounds would be provided.

Mr. Connolly

The Minister is doing that. I noticed he gave a little bonus to Galway yesterday.

Mr. Noonan

(Limerick East): The Opposition talk about the powers of local authorities and about giving more responsibility to councillors but they are putting the onus on me to provide pounds.

Mr. Connolly

We are not asking the Minister to provide anything for us.

Mr. Noonan

(Limerick East): Regarding representations from counties, it is obvious that in some cases representatives are well backed. For instance, regarding Limerick, Deputies Prendergast and O'Dea have been helping me out this evening while in the case of Laois-Offaly Deputies Cowen and Connolly have been helping Deputy Hyland.

Mr. D. Gallagher

The question is not one of helping anyone out; it is a question of common sense.

Mr. Noonan

(Limerick East): The legislation has been debated thoroughly. The debate has been brought to one point: what action a man is to take in the event of animals straying onto his property. Is he entitled to put those animals back on the road and, if so, what is his position vis-á-vis the law in that case? As I have stated, there are only three positions that can be adopted in so far as the Bill is concerned. We can impose strict liability on the injured party in the first instance in respect of driving the animals on to the road, but that would be blatantly unfair. Or we can grant immunity to such person so that, regardless of what damage the animals caused after being returned to the road, he could not be sued. Whether they crossed in front of a school bus or whether they caused a child to be knocked from his bicycle, the person concerned could not be sued and the onus reverts to the owner of the animals. But I do not think we could take up that position.

I am arguing that the only position we can adopt is to leave such matters to the courts to decide. The element of risk is that there is no liability on the second land owner if the animals wander in and then wander out. There might be a liability if he were careless in the act of driving the animals out on to the road from his land, but I have read it into the record that I do not think there is a subsequent liability. There is an option other than driving the animals out. He can contact the Garda and restrain the animals as part of the impounding process until the Garda come to impound the animals.

An Ceann Comhairle

As it is now 10.30 p.m., I have to put the following question: "That all amendments set down by the Minister for Justice and not disposed of are hereby made to the Bill, the Bill, as amended, is hereby agreed to in Committee and as amended, is reported to the House and Fourth Stage is hereby completed and the Bill is hereby passed."

The Dáil divided: Tá, 66; Níl, 57.

Tá

• Allen, Bernard.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Myra.
• Barry, Peter.
• Begley, Michael.
• Bell, Michael.
• Bermingham, Joe.
• Birmingham, George Martin.
• Boland, John.
• Bruton, John.
• Bruton, Richard.
• Carey, Donal.
• Cluskey, Frank.
• Collins, Edward.
• Conlon, John F.
• Connaughton, Paul.
• Coogan, Fintan.
• Hegarty, Paddy.
• Hussey, Gemma.
• Kavanagh, Liam.
• Keating, Michael.
• L'Estrange, Gerry.
• McGahon, Brendan.
• McGinley, Dinny.
• McLoughlin, Frank.
• Manning, Maurice.
• Mitchell, Jim.
• Molony, David.
• Moynihan, Michael.
• Noonan, Michael.
• (Limerick East).
• O'Brien, Willie.
• O'Keeffe, Jim.
• Cooney, Patrick Mark.
• Cosgrave, Liam T.
• Cosgrave, Michael Joe.
• Coveney, Hugh.
• Crotty, Kieran.
• Crowley, Frank.
• D'Arcy, Michael.
• Desmond, Eileen.
• Donnellan, John.
• Dowling, Dick.
• Doyle, Avril.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernard J.
• Farrelly, John V.
• Fennell, Nuala.
• Flaherty, Mary.
• Flanagan, Oliver J.
• O'Leary, Michael.
• O'Sullivan, Toddy.
• O'Toole, Paddy.
• Owen, Nora.
• Pattison, Séamus.
• Prendergast, Frank.
• Quinn, Ruairí.
• Ryan, John.
• Shatter, Alan.
• Sheehan, Patrick Joseph.
• Skelly, Liam.
• Spring, Dick.
• Taylor-Quinn, Madeline.
• Timmins, Godfrey.
• Yates, Ivan.

Níl

• Ahern, Bertie.
• Ahern, Michael.
• Barrett, Michael.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Paudge.
• Browne, John.
• Byrne, Hugh.
• Byrne, Seán.
• Calleary, Seán.
• Connolly, Ger.
• Coughlan, Cathal Seán.
• Cowen, Brian.
• Daly, Brendan.
• Fahey, Francis.
• Fahey, Jackie.
• Faulkner, Pádraig.
• Fitzgerald, Gene.
• Fitzgerald, Liam Joseph.
• Flynn, Pádraig.
• Foley, Denis.
• Gallagher, Denis.
• Gallagher, Pat Cope.
• Geoghegan-Quinn, Máire.
• Harney, Mary.
• Hilliard, Colm.
• Hyland, Liam.
• Kirk, Séamus.
• Kitt, Michael.
• Lenihan, Brian.
• Leonard, Tom.
• Leyden, Terry.
• McCarthy, Seán.
• McCreevy, Charlie.
• McEllistrim, Tom.
• Molloy, Robert.
• Morley, P. J.
• Moynihan, Donal.
• Nolan, M. J.
• Noonan, Michael J.
• (Limerick West)
• O'Connell, John.
• O'Hanlon, Rory.
• O'Keeffe, Edmond.
• O'Kennedy, Michael.
• O'Leary, John.
• Ormonde, Donal.
• O'Rourke, Mary.
• Power, Paddy.
• Reynolds, Albert.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Walsh, Joe.
• Walsh, Seán.
• Wilson, John P.
• Wyse, Pearse.

Tellers: Tá, Deputies Barrett(Dún Laoghaire) and McLoughlin: Níl, Deputies V. Brady and Barrett (Dublin North-West).

Question declared carried.