THE LAW REFORM COMMISSION

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 2 – 1982)

REPORT ON CIVIL LIABILITY FOR ANIMALS

IRELAND

The Law Reform Commission, River House, Chancery Street, Dublin 7

Copyright

© Copyright The Law Reform Commission 1982

First Published May 1982

LAW REFORM COMMISSION

REPORT ON CIVIL LIABILITY FOR ANIMALS

CHAPTER 1 INTRODUCTION

1.1

Civil liability for animals was the subject of the Law Reform Commission's Third Working Paper, published in December 1977. Comments on this paper were invited, and the persons and bodies listed in Appendix A submitted their views. The Commission wishes to express its gratitude to them for their kind assistance.

1.2

As the Working Paper pointed out, all the general rules of tortious liability apply to animals in much the same way as they apply to other chattels. Thus, the owner of an animal which causes damage may be liable in negligence – as where he brings a dog on to the highway and fails to exercise reasonable care in controlling it.¹ He may incur liability in nuisance if he keeps animals in such numbers that they unreasonably interfere with his neighbour's enjoyment of his property.² The occupier of premises may be liable if, for example, injury is caused to a lawful entrant by the occupier's dog.³ Liability may also arise, in appropriate circumstances, in trespass⁴ or

under the rule in Rylands v Fletcher.⁵ In the case of negligence or nuisance, the liability would be based on fault; but liability under Rylands v Fletcher or in trespass would be strict – that is, it would arise irrespective of any fault in the owner.

1.3

The law has also evolved certain specialised rules of liability for injuries done by animals. It imposes strict liability in cases of cattle trespass, i.e. where certain kinds of animals⁶ stray on to the land of another. Under the scienter action, strict liability also arises in regard to injury caused by a wild animal (an animal ferae naturae). However, to recover for injuries caused by a domesticated animal, the plaintiff must prove

The law is particularly indulgent to the owners of animals which stray on to the highway. Here the general rule is that no liability whatsoever attaches in respect of any injuries such animals may cause.

1.4

In its Working Paper No. 3, the Commission made two main proposals for reforming this branch of the law:

1.5

The Law Reform Commission has reconsidered this subject in the light of the views expressed to it. The Commission's final recommendations are set out in the succeeding chapter.

1.6

This final Report deals with certain matters not touched upon in Working Paper No. 3. One such topic is the provision of a remedy where livestock stray on to property. The Commission's recommendations on this subject appear in Chapter 3, infra. The problem caused by animals wandering on the public roads was also drawn to the Commission's attention. Its recommendations on this matter will also be found in Chapter 3.

1.7

Appendix B (pp. 16–27) to this Report contains a Draft Animals Bill 1982, which implements all the recommendations of the Commission.

CHAPTER 2 PROPOSALS FOR REFORM

A LIABILITY FOR DAMAGE CAUSED BY ANIMALS STRAYING ON TO THE HIGHWAY

2.1

In Working Paper No. 3 the immunity from liability given to the keepers of animals which stray on to the highway was criticised as anomalous. It is out of step with modern legal developments, current conceptions of responsibility and, in particular, present-day traffic conditions.⁸ No compelling arguments against the abolition of this immunity have been advanced to the Commission.

2.2.

The Law Reform Commisssion therefore recommends that the immunity conferred on the keepers of animals which cause injury while straying on the public highway should be abolished.

2.3.

As a consequence, the keepers of such animals would be subject to the regime of strict liability proposed infra. Prudence would therefore suggest adequate fencing; but it is recognised that in some areas of the country this would be virtually impossible. The new dispensation must take account of this.

2.4

The Law Reform Commission recommends that where damage is caused by animals straying from unfenced land to a highway, the person who placed them thereon should not be liable merely on that basis, if (a) the land is common land, or is situated in an area where fencing is not customary, and (b) he had a right to place the animals on that land.

B STRICT LIABILITY FOR INJURY CAUSED BY ANIMALS

2.5

In its Working Paper No.3 the Commission proposed that the owner of an animal which causes injury should be strictly liable, that is, liable irrespective of fault. It was pointed out that such liability exists in many instances under the present law, and that what was being suggested was the extension of an existing principle rather than the creation of a new one. The Commission has not been presented with any argument which would cause it to modify its earlier view.

2.6

The draft Bill which is annexed to this Report would impose liability on the “keeper” of an animal. This term is so defined as to include the owner; but its scope is wider. It will also include a person who has the animal in his

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possession⁹; or who is the head of a household of which a member under the age of sixteen owns the animal or has it in his possession. This latter extension has been enacted into law in England¹⁰ and Northern Ireland¹¹. It is essential lest liability be evaded by transferring the property in, or possession of, an animal to a child.

2.7

The definition of “keeper” in the draft Bill will also have the effect that if at any time an animal ceases to be owned or possessed by anyone, liability in respect of it will attach to the previous owner or possessor. However, a person who takes into and keeps in his possession an animal for the purpose of preventing it from causing damage or restoring it to its owner is not thereby to be regarded as a “keeper”. Thus, if the animal causes injury, that person will not be strictly liable; but he will owe the common law duty to take reasonable care.

2.8

Two exceptions to the proposed rule of strict liability were suggested in Working Paper No.3. The first was that the defence of Act of God should be available. This would negative liability for injury caused by straying animals where the fence or gate through which they escaped was blown down by an extraordinary gale. The defence appears to exist under the present law and, in the Commission's view should continue to do so. The draft Bill annexed to this Report makes provision accordingly. It will be noted that the relevant section (6) provides that the defence will apply only where the damage was

“attributable solely to act of God”. This is designed to cover a situation where a hazard is created by act of God and, subsequently, the landowner – though having the time and resources to rectify the situation – does nothing. The British Privy Council has held that liability in negligence may attach in such circumstances¹². Section 6 will preserve this possibility.

2.9

The second exception proposed was that ordinary negligence principles should apply in determining liability towards a trespasser injured by an animal. The general law on this subject has recently been restated by the Supreme Court in McNamara v. E.S.B.¹³ as being that the occupier owes a duty of reasonable care to reasonably foreseeable trespassers. In such circumstances this seems more appropriate than strict liability, and the principles laid down in McNamara's case are flexible enough to deal with injuries caused to trespassers by the occupier's animals. The Commission adheres to its earlier proposal on this matter.

2.10

The Commission further proposed in Working Paper No.3 that in all cases the plaintiff's own fault should be a ground for reducing the damages awarded. This reproduces the present law, as contained in section 34 of the Civil Liability Act 1961. It has not been suggested to the Commission that any change is desirable here.

2.11

The proposed new system of strict liability would absorb the common law rules on cattle trespass, the scienter action and the statutory rules as to civil liability for harm caused

to cattle by dogs. At present, these matters are not free from doubts or complexities, and in the interests of clarity the proposed new Act should specifically abolish these rules.

2.12

The Law Reform Commission accordingly recommends:

CHAPTER 3 REMEDIES IN RESPECT OF STRAYING ANIMALS

3.1

Under the present law, the occupier of land may detain trespassing animals until he has been compensated by their owner for the damage done. This is known as distress damage feasant or faisant (lit. doing damage). However, this power of detention arises only in cases of injury to land; it has no application to cases of personal injury or injury to chattels¹⁴. The English Law Commission recommended abolition of distress damage feasant because it was “hedged about with technicalities and gives the occupier no power of sale”¹⁵. Instead, a modernised remedy was proposed, and this was subsequently enacted as section 7 of the Animals Act 1971. A similar step was taken in Northern Ireland – Article 9 of the Animals (Northern Ireland) Order 1976. The arguments in favour of abolishing this remedy – which is obsolescent, if not indeed obsolete – are compelling. Accordingly, the Law Reform Commission recommends the abolition of distress damage feasant; and section 10(1) of the draft Bill is framed so as to achieve this.

3.2

Under the Summary Jurisdiction (Ireland) Act 1851, section 20(1), it is not lawful to impound any animal found trespassing on land when the owner of the animal is known. To do so is an offence, punishable on summary conviction by a fine not exceeding £5. The landowner is given instead a civil remedy in the District Court. Under section 20(2) of the same Act, where the owner of the trespassing animal is not known, impounding in the nearest pound of the country is lawful.

3.3

Provision for the sale of impounded animals is made by section 19(8) of the Summary Jurisdiction (Ireland) Act 1851 and section 71 of the Towns Improvement (Ireland) Act 1854– as amended, in both cases, by the Pounds (Maintenance and Provisions) Act 1935. Under the 1851 Act the power of sale arises where an animal, found wandering or straying, is impounded. The pound-keeper is required to notify the Garda Síochána, who are then responsible for posting a notice. If the owner of the animal cannot be discovered, the District Justice may direct the sale of the animal. The provisions of the 1854 Act, though more restricted, are less formal. Under section 71, “cattle” found at large in any street of a town without any person in charge of them may be impounded. The power to impound is exercisable by the Gardaí or by any person residing within the town. If the owner has not paid a stipulated penalty and reasonable expenses within three days of the impounding, the animals may be sold.

3.4

The power of sale under the 1854 Act is not contingent on the giving of notice, and is exercisable without recourse to the District Court. The procedure is thus less formal than that under the Summary Jurisdiction (Ireland) Act 1851. However, the latter applies generally throughout the State, whereas the 1854 Act relates only to towns. Moreover, the 1851 Act is applicable to any animal, whereas the Towns Improvement (Ireland) Act 1854, section 71, deals only with “cattle” (defined in section 1 as “any Horse, Mare, Gelding, Foal, Colt, Filly, Bull, Cow, Heifer, Ox, Calf, Ass, Mule, Ram, Ewe, Wether, Lamb, Goat, Kid or Swine”).

3.5

The Law Reform Commission is of the view that these provisions should be replaced by a modernised and simplified statute, as they have been in Northern Ireland. The Commission therefore recommends that, where livestock not

under the control of any person strays on to land, the occupier should be able to detain it for forty-eight hours. This period should be capable of extension where the Garda Síochána – and the keeper, if known – are notified of the detention. The keeper should be able to terminate the right to detain by tendering an amount of money sufficient to satisfy the detainer's claim for any damage caused. A power to sell at a market or by public auction should arise after fourteen days' detention.

3.6

Section 10 of the draft Bill annexed to this Report is framed so as to give effect to these recommendations. It will be noted that, under section 10(5), where the power of sale is exercised, any excess of the proceeds over the sum of the amount claimed and the costs of the sale (including any costs incurred in connection with the sale) will go to the keeper of the livestock. Further, anyone detaining livestock under section 10 will be obliged to treat it with reasonable care and to supply it with adequate food and water.

Animals Wandering on Public Roads

3.7

The Commission's attention has been drawn to the serious problem caused by (apparently) ownerless animals straying on the roads. The traffic hazard posed by such animals need hardly be stressed.

3.8

It is not the function of the Commission to prescribe administrative measures to deal with this problem. It is, however, the Commission's task to consider whether the existing law can be improved, so as to facilitate the adoption of such measures. The Comission notes that the legislation on this matter – originally common to both Irish jurisdictions – has been modernised in Northern Ireland, where similar problems

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have been experienced. Modernisation on similar lines is desirable in this jurisdiction. The Law Reform Commission accordingly recommends that any member of the Garda Síochána be empowered to impound animals found wandering on any public road; and that if such animals are not claimed by their owner within fourteen days of such impounding, it should be lawful to have them sold at a market or by public auction.

3.9

Section 11 of the draft Bill makes provision accordingly. It will be noted that where the power to impound is exercised, a notice must be posted – and remain posted for fourteen days – outside the nearest Garda Síochána station. Thereafter, the power of sale will arise, but only at the instance of a senior Garda officer. Section 11 further specifies how the proceeds of any such sale are to be applied.

3.10

Section 12 of the draft Bill is a provision consequential upon sections 10 and 11. It constitutes rescuing livestock detained under section 10, or animals impounded under section 11, an offence punishable on summary conviction by a fine not exceeding £100.

CHAPTER 4 SUMMARY OF RECOMMENDATIONS

1.

The immunity conferred on the keepers of animals which cause injury while straying on the highway should be abolished. (Paragraph 2.2)

2.

Where damage is caused by animals straying from unfenced land to a highway, the person who placed them thereon should not be liable merely on that basis, if (a) the land is common land, or is situated in an area where fencing is not customary, and (b) he had a right to place the animals on that land. (Paragraph 2.4)

3.

4.

The existing remedy by way of distress damage feasant should be abolished. (Paragraph 3.1)

5.

Where livestock not under the control of any person strays on to land, the occupier should be able to detain it for forty – eight hours. This period should be capable of extension

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where the Garda Síochána – and the keeper, if known – are notified of the detention. The keeper should be able to terminate the right to detain by rendering an amount of money sufficient to satisfy the detainer's claim for any damage caused. A power to sell at a market or by public auction should arise after fourteen days' detention. (Paragraph 3.5)

6.

Any member of the Garda Síochána should have power to impound animals found wandering on the public road. If such animals are not claimed within fourteen days of such impounding, a power of sale should arise. (Paragraph 3.8)

NOTE

As the provisions in the proposed Animals Bill 1982 are straightforward, the Law Reform Commission does not consider any Explanatory Memorandum to the Bill is required. Moreover, the reforms in the law that will be effected by these provisions are clearly explained in this Report (supra).

APPENDIX A

PERSONS AND BODIES THAT SUBMITTED VIEWS TO THE COMMISSION

Mr T. Ahern, Cloondara, Tralee, Co. Kerry

Chief State Solicitor's Office

Professor S. Cooney, Cill Moconog, Co. Cill Mantain

County Dublin Committee of Agriculture

Department of Fisheries (Forest and Wildlife Service)

Mr T. Kelly, Inch Laurence, Caherconlish, Co. Limerick

The Hon. Mr Justice Kenny

Mr Robert Molloy, T.D.

APPENDIX B

ANIMALS BILL 1982

ARRANGEMENT OF SECTIONS

SECTION

ACTS REFERRED TO

Civil Liability Act 1961 1963 No. 23

Dogs Act 1906 1906 c. 32

Pounds (Provision and Maintenance) Act 1935 1935 No. 17

Statute of Limitations 1957 1957 No. 6

Summary Jurisdiction (Ireland) Act 1851 1851 c. 92

Towns Improvement (Ireland) Act 1854 1854 c. 103

ANIMALS BILL 1982

BILL

ENTITLED

An Act to make provision with respect to civil liability for damage done by animals; to amend the law relating to the impounding of animals; and for connected purposes.

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Short title and commencement

1.

–

Interpretation

2.

–

New provisions as to strict liability for damage done by animals

3.

– The provisions of sections 4 to 7 and section 9 replace –

Liability for damage caused by an animal

4.

– Where any damage is caused by an animal any person who is a keeper of the animal is liable for the damage, except as otherwise provided in sections 5 to 9.

Liability for damage caused to a trespasser by an animal

5.

– A person is liable for any damage caused by an animal kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.

Act of God a defence in action

6.

– In an action for damage caused by an animal it shall be a defence to show that the damage was attributable solely to act of God.

Damage under this Act deemed to be attributable to a wrong within the meaning of the Civil Liability Act 1961

7.

–

Duty to take care to prevent damage from animals straying on to the public road

8.

–

Liability for injury by dogs to livestock

9.

–

Detention and sale of straying livestock

10.

–

Animals wandering on to the public road

11.

–

Penalty for rescuing livestock detained or animals impounded under section 10 or 11

12.

– Any person who –

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.

Repeals

13.

– The following are hereby repealed, that is to say –