Dundalk cllr advised farmers not liable if animals on commonage in accident

Dundalk-Carlingford's Cllr John Reilly, told members at the Dundalk Municipal District May meeting that he had received advice from the Department of Agriculture, that informed him that if an animal that was on commonage and it strayed off and was involved in an accident, the owner of the animal would not be held responsible.

Cllr Reilly raised the matter at the monthly meeting, saying he had sought advice from Louth County Council on animals grazing on the Cooley Mountains, as he was making representations on behalf of some of the farmers on the mountain, but felt he was being ignored.

Cllr Reilly told the meeting that he ended up getting the legal advice himself, adding, "it's like having a dog and doing your own barking". The advice which Cllr Reilly received from the Department of Agriculture and which he shared with the Dundalk Democrat is as follows:

"The 1985 Animals Act, Section 2 states:- 

"2.—(1) So much of the rules of the common law relating to liability for negligence as  excludes or restricts the duty which a person might owe to others to take such care as is  reasonable to see that damage is not caused by an animal straying on to a public road is  hereby abolished.  

"(2) (a) Where damage is caused by an animal straying from unfenced land on to a public  road, a person who placed the animal on the land shall not be regarded as having committed a  breach of the duty to take care by reason only of placing it there if— 

"(i) the land is situated in an area where fencing is not customary, and  

"(ii) he had a right to place the animal on that land.  

"(b) In this subsection "fencing" includes the construction of any obstacle designed to prevent  animals from straying, and "unfenced" shall be construed accordingly."

At the May meeting, Cllr Reilly said that he wanted Louth County Council, Coillte and the local farmers to sit down and address the issue, commenting that, "its even more serious than what I first thought, if animals stray off the mountain, once you have the legal right to put them there, the person who has put them there is not liable for damage."

He requested a meeting with the local authority and farmers on the matter, adding that there were other fencing issues in the area and that Coillte and the farmers are prepared to go into dialogue on the issue.

Cllr Reilly told the meeting that from his understanding, with regards travelling through commonage, if he went up there and hit an animal, "if I am the motorist, I am legally responsible. We have no signage to say that."

Acknowledging that Director of Services Catherine Duff had said in the past that she was not in favour of grids on the road, Cllr Reilly said, "technically speaking if the sheep wander down onto the road its only a matter of time before there's an accident and people who put them there are not legally liable", reiterating his request for a meeting on the matter.

Director of Service Thomas McEvoy replied to Cllr Reilly to say that the matter had been raised before at both Corporate Policy Group (CPG) and County level, and that he had a copy of the letter he received from the Minister for Agriculture on the matter which he said, "more or less reaffirms our own position on it, that Louth County Council doesn't have a role with regard to commonage."

Mr McEvoy added "that's why we haven't provided any legal advice, we're not in a position to provide legal advice. Our view is that its not a matter for the local authority."

Later in the meeting, Cllr Reilly asked that the Municipal District write to Kildare County Council to understand how they dealt with the issue of commonage, and added that Donegal, which also has areas of commonage, has grids installed.

Mr McEvoy replied to say that the engineering view and the view of Ms Duff on grids was that "you don't create a hazard to solve a hazard and she's not prepared to create a hazard and therefore grids aren't an option."