IF dog bit trespasser??? Definition of 'negligence'.

Bannasidhe

Originally asked in Pet and Animal issues and DBB the mod there suggested I post here to seek clarification of certain parts of the Control of Dogs Act 1986 and how it applies in this instance.

Background story is our neighbour is, frankly, a douche and his kids are constantly kicking balls into our garden - over the years we have lost hundred of euros of plants and about 4 years ago my then 9 month old Grandson was brained by one of their balls - when we told neighbour all we got was verbal abuse.

Now we have four jacks - two of whom love playing footie and yip with happiness while doing it. Last Summer, dogs were in the garden playing footie when suddenly they went ballistic so I went out to see what the problem was to discover neighbour leaning into the garden recording the noise of the dogs - noise he was causing by leaning right over the 6 foot dividing wall. In an effort at being neighbourly the dogs do not play footie out there any more (unless they get hold of a ball kicked over by his kids.)

So tonight dogs are outside having just finished their dinner and they go ape - my OH was in the kitchen so immediately went to see what the fuss was about and caught neighbour's son in the process of climbing into our garden to retrieve his ball. She got the dogs inside and gave the ball back but warned neighbour to tell his kids not to climb into our - very secure (the lowest part of the adjoining breeze block wall is 6ft)- garden and if they do and get bitten it is not our responsibility. He said this is fair enough but I know him to be litigious so want to make sure I understand the legal situation plus I have since gotten conflicting information from a variety of sources some of whom say that I would be liable if these teenagers got bitten by one of my dogs while trespassing so I would be grateful if anyone could clarify if I am I right to worry or fretting unnecessarily??

The relevant passage of the Control of Dogs Act is

(3) A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.

(4) (a) Any damage or injury for which a person is made liable under this section shall be deemed to be attributable to a wrong within the meaning of the Civil Liability Act, 1961 , and the provisions of that Act shall apply accordingly.

(b) Sections 11 (2) (a) and 11 (2) (b) of the Statute of Limitations, 1957 , shall apply to such damage.

What is unclear is how 'negligence' is defined in this instance.

As I said, the garden is 100% secure. There is one large gate with two separate bolts but this is not easily accessible to neighbours and it cannot be opened from the outside.

Between my property and this neighbours is a wall made of breeze block - the wall is mine - which at it's lowest point from my garden is 6 foot tall.

My neighbour built a shed with an extended platform (about three years after the wall was built) on his side which means from one part of his garden the wall is perhaps 4 feet high but with an eight foot drop on my side but there is only a two foot wide point of entry - this is where the teenager tried to gain access.

To be honest anyone trying to access that way is more likely to injury themselves getting down and back up again than by a dog bite but we do suspect (due to damage to plants and footprints in soil in that area that could not belong to any of my household ) that they have in the past used this as a means of gaining access and retrieving their balls.

What is concerning me is what exactly constitutes negligence in this situation?

Are 4 dogs - not of a specified dangerous breed - in a fully enclosed garden where access was gained by dropping 8 feet and where every effort has been made to ensure the dogs are fully contained on my property at all times 'safe' should one of them bite a trespasser?

Or am I somehow being negligent in some ill defined way and face keeping my dogs inside in the summer - they are not out in the garden unless someone is home but I can't stay out there with them all day as I often work from home - in case a teenager who knows the dogs are there decides to trespass and gets bitten for his troubles??

I am not looking for legal advice - just opinions on what in this case constitutes negligence and whether I could be deemed negligent for allowing my live in house dogs access via an open kitchen door -weather permitting - to my secure enclosed garden.

NoQuarter

You owe a "duty of care" basically.

Negligence is broken into two parts; 1 - proximity and 2. reasonable foreseeability.

If the kid climbs over the wall there is the proximity, its your garden and your dog and your neighbour. So that will be satisfied for sure.

The other element is reasonable foreseeability. Is it reasonably foreseeable that the child might climb over the wall and get bitten? Well, youve seen it happen once so it certainly is now.

Morally, im on your side but legally, you could be in trouble.

Here is a full explanation of negligence: http://www.gcd.ie/assets/Uploads/images/Law/fe1manuals/20090519051807Chapter02Tort.pdf

Bannasidhe

NoQuarter wrote: »

You owe a "duty of care" basically.

Negligence is broken into two parts; 1 - proximity and 2. reasonable foreseeability.

If the kid climbs over the wall there is the proximity, its your garden and your dog and your neighbour. So that will be satisfied for sure.

The other element is reasonable foreseeability. Is it reasonably foreseeable that the child might climb over the wall and get bitten? Well, youve seen it happen once so it certainly is now.

Morally, im on your side but legally, you could be in trouble.

Here is a full explanation of negligence: http://www.gcd.ie/assets/Uploads/images/Law/fe1manuals/20090519051807Chapter02Tort.pdf

Thank you for your response NoQuarter.

To clarify - teenager rather than child (it would be extremely unlikely that any child under 10 would be able to gain access) and they and their father have been warned they are not to enter my property and their father verbally agreed that should they do so liability would not rest with me so I am wondering if now that he has accepted this and assured us his children will not trespass again if that takes care of the 'foreseen' aspect?

Plus, as I said the drop into my garden is over 8 feet - is it 'reasonable' that a teenager - who has specifically been told not to - would drop 8 feet into someone else's property with full knowledge that there are dogs present?

If not I will have to close off their access point fully ...somehow...!

234

NoQuarter wrote: »

You owe a "duty of care" basically.

Negligence is broken into two parts; 1 - proximity and 2. reasonable foreseeability.

If the kid climbs over the wall there is the proximity, its your garden and your dog and your neighbour. So that will be satisfied for sure.

The other element is reasonable foreseeability. Is it reasonably foreseeable that the child might climb over the wall and get bitten? Well, youve seen it happen once so it certainly is now.

Morally, im on your side but legally, you could be in trouble.

Here is a full explanation of negligence: http://www.gcd.ie/assets/Uploads/images/Law/fe1manuals/20090519051807Chapter02Tort.pdf

I think that you should also include the standard of care here. Just because the OP knows that kids climb into their garden doesn't automatically mean that they have to lock their dogs indoors all day. Contributory negligence would also be a factor.

This is probably best resolved with the neighbour as any attempt at prospective and speculative avoidance of liability could easily go wrong.

NoQuarter

Bannasidhe wrote: »

Thank you for your response NoQuarter.

To clarify - teenager rather than child (it would be extremely unlikely that any child under 10 would be able to gain access) and they and their father have been warned they are not to enter my property and their father verbally agreed that should they do so liability would not rest with me so I am wondering if now that he has accepted this and assured us his children will not trespass again if that takes care of the 'foreseen' aspect?

Plus, as I said the drop into my garden is over 8 feet - is it 'reasonable' that a teenager - who has specifically been told not to - would drop 8 feet into someone else's property with full knowledge that there are dogs present?

If not I will have to close off their access point fully ...somehow...!

I worry as to whether you can contract out of liability in this instance. I also worry as to whether your verbal agreement will be denied if the dog bites.

Its certainly not black and white anyway.

234 wrote: »

I think that you should also include the standard of care here. Just because the OP knows that kids climb into their garden doesn't automatically mean that they have to lock their dogs indoors all day. Contributory negligence would also be a factor.

This is probably best resolved with the neighbour as any attempt at prospective and speculative avoidance of liability could easily go wrong.

I agree about contributory negligence, but would the dog be destroyed if it bit? No contributory negligence could help with that.

OP, the standard of care of what 234 describes is "what a reasonable person would do". If you think a 6 foot was is reasonable (I might be inclined to agree) then so be it. But its impossible to give an answer until a court heard any case. Too many variables.

Bannasidhe

234 wrote: »

I think that you should also include the standard of care here. Just because the OP knows that kids climb into their garden doesn't automatically mean that they have to lock their dogs indoors all day. Contributory negligence would also be a factor.

This is probably best resolved with the neighbour as any attempt at prospective and speculative avoidance of liability could easily go wrong.

I would prefer to resolve this with my neighbour but given his aggressive and verbally extremely abusive response 4 years ago after my then toddler grandson was struck in the head and I asked him to speak to his kids about the constant balls flying over wall I don't think that is an option.

I am now thinking it might be safer all round to try and put some sort of plastic coated wire across where they gain entry - although even then if they were really determined they could potentially still gain access as the maximum height of wire that could be safely secured is only about 1 1/2 feet...

Also worth baring in mind that it was the construction of a platform adjacent to the wall by neighbour some three years after the wall was constructed which enables his kids to climb the wall on his side. Without that platform they would need a ladder...

sopretty

Have the dogs bitten before?

Bannasidhe

NoQuarter wrote: »

I also worry as to whether your verbal agreement will be denied if the dog bites.

That is my main concern to be honest.

I want to make sure that I have done everything possible to meet every legal requirement so should the situation arise despite my best efforts that my dogs are safe..the problem I am having is the vagueness of the legal requirements...

Bannasidhe

sopretty wrote: »

Have the dogs bitten before?

No.

But one of them in particular could possibly maybe nip at one of their ankles and possibly maybe make contact if the trespasser was wearing shorts you see what I mean.

I am being super cautious as I know what my neighbour is like....

michael999999

Would a registered letter to the next door neighbours, specifically asking them to keep there children out of your back garden have any standing?

sopretty

Hmmmm. It seems like it's a bit of a grey area alright. Is there anything you could put on top of the wall (legally) which would deter them from climbing the wall? I'm thinking along the lines of those curved sort of pronged type fences you'd see here and there. Not sure whether they're allowed either and your neighbour would probably object to those too!

Graces7

Thinking sideways a little, what bearing does the whole concept of trespass have on this?

If the neighbours have been told in writing not to enter the OPs premises?

Admiring your carefulness and patience OP.

I had a similar incident a few years back with an old man who invaded the garden where I lived; defunct right of way issue.
He walloped one of my dogs with his stick; will hear that yelp to my dying day.. she ran to me as she had not an aggressive bone in her old body

he then went to my landlord claiming my aggressive dog had bit his ankle and he had had to go to the dr for an anti tetanus injection.

My heart..NB he was wearing thick wellies and thick trousers and the dog has broken teeth.

The next week he was in again and I called the Gardai and asked them re the business re the dog. She asked what baid he would have to prove it and I made sure she saw they were pure pets and totally under my control.

May be worth getting the Gardai on side at some stage? Should not be necessary but with some people..

A thought; can you get a video security camera up?

Graces7

sopretty wrote: »

Hmmmm. It seems like it's a bit of a grey area alright. Is there anything you could put on top of the wall (legally) which would deter them from climbing the wall? I'm thinking along the lines of those curved sort of pronged type fences you'd see here and there. Not sure whether they're allowed either and your neighbour would probably object to those too!

Was thinking razor wire myself as after all there is no reason for the kids to be on the wall at all is there?

Bannasidhe

Graces7 wrote: »

Was thinking razor wire myself as after all there is no reason for the kids to be on the wall at all is there?

To torment the dogs...

Graces7

Bannasidhe wrote: »

To torment the dogs...

Well yes I got that..whose wall is it by the way?

If it is legally YOUR boundary then they cannot stop you adding to it. Your deeds will show clearly . Nor can they stop you erecting an inner barrier made of whatever you like.

Seriously if they are being verbally abusive it may be worth having a concerned word with the Gardai as a precaution.

Just say you are very concerned etc.

My doing that was the way forward as when the Gardai were called out to the old man the next time he threatened to kill them and raised his fists to them.....

Bannasidhe

Graces7 wrote: »

Well yes I got that..whose wall is it by the way?

If it is legally YOUR boundary then they cannot stop you adding to it. Your deeds will show clearly . Nor can they stop you erecting an inner barrier made of whatever you like.

Seriously if they are being verbally abusive it may be worth having a concerned word with the Gardai as a precaution.

Just say you are very concerned etc.

My doing that was the way forward as when the Gardai were called out to the old man the next time he threatened to kill them and raised his fists to them.....

My wall - on my property. Neighbour erected wooden fencing along his side about 10 feet tall but none at the spot where his kids gain access. Instead he put a large 'play' shed there with a raised platform that allows them to see directly into my garden. We have in the past had to ask kids politely to give us privacy as they sat on the wall watching us have bbqs and the like.

Neighbour tried all he could to prevent house being built (nothing to do with me, I bought it off builder) - possibly this is where his hostility stems from and has been trying unsuccessfully to sell his house for about 7 years - the wall was part of the compromise worked out with the builder as one of his complaints was about his privacy being infringed.

Ironic eh!

Graces7

Bannasidhe wrote: »

My wall - on my property. Neighbour erected wooden fencing along his side about 10 feet tall but none at the spot where his kids gain access. Instead he put a large 'play' shed there with a raised platform that allows them to see directly into my garden. We have in the past had to ask kids politely to give us privacy as they sat on the wall watching us have bbqs and the like.

Neighbour tried all he could to prevent house being built (nothing to do with me, I bought it off builder) - possibly this is where his hostility stems from and has been trying unsuccessfully to sell his house for about 7 years - the wall was part of the compromise worked out with the builder as one of his complaints was about his privacy being infringed.

Ironic eh!

Did he have planning permission for that shed?

Pity the kids being apples falling near his tree..

All reminds me why I gave up having neighbours some three decades ago.. now "all " I have is an aggressive farmer who has the right of way along the front of the house and wants to " get rid " of me. So he can somehow get this house... Latest ploy is spraying slurry by my well...been sick for days with it.

Your dogs sound great fun!

NoQuarter

Graces7 wrote: »

Thinking sideways a little, what bearing does the whole concept of trespass have on this?

Trespass is catered for in the legislation, it's actually posted in the OP. I only skimmed the rest of your posts because the law is wrong. "Your property do with it as you like"? No. Put barbed wire up and then have a look at the occupiers liability act, then see the trouble you could face.

Gmol

Would put up Beware of dogs signs both on your gate and even in your back garden. I would also get cctv to record trespassing.

sopretty

NoQuarter wrote: »

Trespass is catered for in the legislation, it's actually posted in the OP. I only skimmed the rest of your posts because the law is wrong. "Your property do with it as you like"? No. Put barbed wire up and then have a look at the occupiers liability act, then see the trouble you could face.

So is the OP stuck with getting extremely comprehensive public liability insurance or what? Get rid of the dogs?

NoQuarter

sopretty wrote: »

So is the OP stuck with getting extremely comprehensive public liability insurance or what? Get rid of the dogs?

I dunno, but the control of dogs act is there and so is the occupiers liability act.

Rossi IRL

If it is your wall, im sure you can get a paint that goes on top of walls that stains clothes if contact is made, that would stop them climbing over

Pat Mustard

OP,

http://www.irishstatutebook.ie/1986/en/act/pub/0032/sec0021.html#sec21

(3) A person is liable in damages for any damage caused by a dog kept on any premises or structure to a person trespassing thereon only in accordance with the rules of law relating to liability for negligence.

The overall picture seems to be:

1. You have four Jack Russell dogs. Not always the calmest breed to deal with boisterous children, in my experience.
2. Your neighbour is a litigious and unreasonable person who sees no problem in trespassing on your property or allowing his children to do the same.
3. Your neighbour's children could come on to your property to retrieve a football, at some stage or another.
4. You are worried that a child may be bitten and that you could be sued.
5. Your neighbour has never paid for any of the damage that his children have caused to you.

I think that you are right to be concerned. It could be a lawsuit waiting to happen. I won't try to guess what way that might go.

If your neighbour was reasonable, he would have listened to you when you tried to warn him of the danger of the children getting bitten. He might have stopped his children from entering your property. However, it seems from your post that the children have caused a lot of damage to your property. I didn't hear that your neighbour compensated you for this damage. That says something about him.

As your neighbour has been unreasonable on previous occasions, I would consult a solicitor and ask him/her about drafting a letter, ostensibly coming from you, if you wish. Such a letter could ask your neighbour and his offspring to keep off your property and away from your dogs. Such a letter could be phrased as nicely and as diplomatically as you like, once the point is clear. Perhaps you could also ask the solicitor to advise on mentioning the danger caused by your neighbour's failure to supervise his children or to restrain them from entering your property, and that said neighbour should bear some or all of the responsibilty in the event of injury. Again, there may be diplomatic ways of making a point without using jargon, or without being more confrontational than necessary.

If you intend to consult a solicitor, you could ask him/her to advise you on s.5 of the Occupiers' Liability Act 1995, which allows an occupier of land to modify duty towards entrants (to include trespassers). This has sometimes been done by way of a sign to alert potential entrants of a particular danger. It would also be interesting if something could be done with this, in light of your neighbour's statement that he would accept responsibility should one of his children be injured upon entering your property. I am not aware of caselaw on this particular matter.

As regards taking all possible precautions to avoid being sued, then you should be aware that if a child gets bitten by a dog, it could be that a litigation engineer may come on to your property to examine it in detail, to look for any possible negligence on your part, no matter how small.

A solicitor might advise you to make sure that you are insured for the risk of your dogs injuring somebody.

You mentioned making your garden more inaccessible. This could be a practical solution, but I suppose it is unlikely that lawyers would be of much assistance to you in that regard.

Good luck.

EDIT: thinking about this in the interim, a letter which attempts to modify duty to trespassers via s.5 of the Occupiers' Liability Act would carry more gravitas if it was presented on a solicitor's letterhead. Probably not as good for neighbourly relations, but that looks like a dead duck anyway. Sometimes it's about the presentation.

slimjimmc

Rossi IRL wrote: »

If it is your wall, im sure you can get a paint that goes on top of walls that stains clothes if contact is made, that would stop them climbing over

No it won't. The wall is only 4 feet high where the teenage kids get across, and if they want their ball back it's easy for them to throw something like an old blanket or coal bag over the paint. Once across they could potentially be bitten so it's better for the OP if the kids can get back out of his garden quickly.
Plenty of prickly bushes growing along the wall would be a better deterrent imo, no one wants to jump into a thorn bush but there's probably a liability aspect to that idea too that I don't know of.

Rossi IRL

slimjimmc wrote: »

No it won't. The wall is only 4 feet high where the teenage kids get across, and if they want their ball back it's easy for them to throw something like an old blanket or coal bag over the paint. Once across they could potentially be bitten so it's better for the OP if the kids can get back out of his garden quickly.

Ah, must of missed the 4 feet part on their side

daithi1970

..would it be possible to raise the the level of the wall by a few layers of bricks? after all, it's your wall..

Bannasidhe

daithi1970 wrote: »

..would it be possible to raise the the level of the wall by a few layers of bricks? after all, it's your wall..

Very difficult from my side as the wall is already over 8 feet high and in a pretty inaccessible position due to sloping ground - it would be a hell of a job to get the bricks up there.

In fact anyone coming in that way would find it very hard to get out again without assistance.

slimjimmc

daithi1970 wrote: »

..would it be possible to raise the the level of the wall by a few layers of bricks? after all, it's your wall..

Bannasidhe wrote: »

Very difficult from my side as the wall is already over 8 feet high and in a pretty inaccessible position due to sloping ground - it would be a hell of a job to get the bricks up there.

In fact anyone coming in that way would find it very hard to get out again without assistance.

There's a 2m limit to how high you're allowed to build a rear garden wall without planning permission, not sure how that fits with the 8 foot drop on your side.

Bannasidhe

slimjimmc wrote: »

There's a 2m limit to how high you're allowed to build a rear garden wall without planning permission, not sure how that fits with the 8 foot drop on your side.

Wall was there when I bought the house as a new build and given neighbour objected about the build as he claimed it would infringe on his privacy - the wall was part of the compromise between him and the builder - I assume all the planning issues were sorted then.

thebullkf

My understanding was that duty of care, in particular to trespassers was to not intentionally. Harm them? So razor wire is out. But a sign stating the inherent danger and a notice absolving you of any liability may work, no ? Such as signs you see at entrances to car parks etc, enter at your own risk, here be dragons

Have dogs myself and this is also a worry for me tbh.

You are supposed to take measures as far as is reasonably practicable, I think informing your neighbour, having a 6ft, fully enclosed garden would constitute reasonable, to a reasonable person. It is crazy to think trespassers can sue when hurt on private property when their intention is one of subterfuge, i.e. Not ringing your doorbell and asking for the ball back.... Erect your own trellis with a thorny bush at the weakest point of entry, a natural deterrent may be best. To be sure though, I would invest in legal advice first. Best of luck, let us know how you get on please

NormalBob Ubiquitypants

I don't really see how a teenager, who climbs a 6ft wall into another's property can claim negligence by the property owner to be honest. If it was a small child then it is different, but not a teenager mature enough to know the difference between right and wrong.

As an aside, am I right in thinking that home insurance covers dog bites, except for dogs that are kept for security purposes.