DUTY OF CARE

[kimr]

Yesterday I had a need to phone the R.S.P.C.A for some advice about a neighbour who is not protecting his ducks from my dog. The fence needs some repair work doing to it and I have done as much as I can to try and stop my dog going through, but as he is a Yorkshire terrior he is still getting through, and my fear is oneday he is going to end up catching one of the ducks and either doing a lot of damage or killing the poor thing, the answer I got amazed me

" Ducks do not come under the duty of care act as they are classed as wild animals, if however your dog did cause damage or death we would look into the case and if we felt that your neighbour had not protected his property enough he may be looking at a charge"

I then said "so my dog has to kill or damage the duck before you would do anything" they replied "yes". I then said that I thought under the duty of care act they had to make sure their ducks were safe, and the reply was a joke "in theory yes, I can see where you would think that"

If someone's pet duck doesnt come under the duty of care act does that mean the owner can treat it without fear of prosicution, and if that is the case where do we actually stand with our Koi, they are carp and carp are wild so in theory they should be exempt from this duty of care law. We as Koi keepers (well most of us) do our very best for our Koi, and most of us treat our Koi better than we treat ourselves, if they are ill we try and find out what is wrong and treat accordingly if possible. Where we can not treat we get advice from vet's who have no idea what so ever how to treat Koi. I really do believe the R.S.P.C.A did not put enough thinking into this law of theirs, they did not make sure that vet's were trained in all aspects of the law they brought in, which has left us in limbo.

Has anyone any thoughts on this

[Manky Sanke]

Kim,

Defra had good intentions regarding animal walfare but couldn't get sufficient funding from the Government to enact their own legislation.

They tried to fund an organisation (CAWES) in Wales that could enact legislation through the Welsh Assembly so that they could say "me too" and adopt any legislation that the Welsh Assembly put into law, but cutbacks meant that they couldn't even continue funding that.

A new organisation C-SCAW, funded directly from the Welsh assembly in order to ensure its future, has just been set up. I was invited to represent the UK Koi Policy Unit at its inaugral meeting last month and I will also be attending its first policy meeting which will be later this month. There are many dedicated people from various organisations, especially the RSPCA, who are passionate about animal welfare for all animals and who are trying to set watertight laws into place but there are so many loopholes that enforcment becomes difficult. This is what C-SCAW is set up to resolve so that proper legislation can give clear definitions of what is right and what is wrong when it comes to animal welfare.

As to having to allow an act of animal cruelty to take place before deciding who was right and who was wrong, that isn't what the RSPCA nor anyone involved in animal welfare want. Christianne Glossop, the Chief Veterinary Officer for Wales, opened the meeting with a presentation strongly advocating that prevention was better than cure. Claire Lawson, (I'm not sure of the Welsh hierachy yet so I don't know where she ranks in the RSPCA but I know she is at or near the top), followed with a similar presentation. Everyone there has different views on the various situations but they are all thinking in very much the same direction. All we need to do is to figure out the best way to take individual aspects forward and make policies that are clear and watertight.

My main involvement is animal welfare in relation to koi carp, but I'll take your question along to the next conference to see if I can get some clarification as to your situation.

Who knows? Perhaps instead of being known as Manky Sanke I could earn the nickname Quacky Sanke

[StuW]

surely the dog would have done the crime so should do the time, its a bit like finding your house burgled and being told by the police that you didnt do enough to protect your property so you, not the burglar, will be charged. If your dog runs out and gets hit by a car you are liable for any damage to the car. I know this from personal experience.
Problem is Kim where does this arguement end, if a heron attacks your pond are you responsible due to lack of protection of your property?

[Bob Hart]

Kim,

Is there anything I can do to the fence when I come round on Saturday to look at the pond build?

[Thorny]

Yeah I think You will find if Your dog goes off your property and kills another animal, you as the owners are held responsible. A few years back our dog eat threw our fence and sadly killed our neighbours cat on his decking. Thankfully we have a good relationship with our neighbour (even now). They put it down to the age old fight between cats and dogs and didnt prosecute. There have been cases in the past where animals have even been destroyed!!!!. So dont nit pick over whos fence is whos get it fixed.

[kimr]

I totally agree with you, if my dog kills or damages one of the ducks I will never forgive myself, but not being unable to get to the bit of fence he is still getting through I am feeling useless, the neighbour said when we first moved in that he would sort the fence, and if he still hasnt sorted it by the weekend I will be going to b&q and buying what will sort it for him to fix it. The other day he asked us if we had seen his dog as it had got out again and he couldnt find it. I do everything I can to make sure my animals are cared for and protected and I feel with this issue I am letting my dog down as I can not keep him safe. Being a terrior and seeing ducks he thinks they will play with him.

What upset me about the R.S.P.C.A is the fact that will not even think about intervening until my dog has damaged or killed a duck. and if the duck is classed as a wild animal does that mean if a cat kills it they would still not do anything. The law they have brought in isn't clear on where we as owners stand. My understanding was if we owned an animal as a pet we had a duty of care, if we have goldfish in a bowl we have a duty of care to look after it, and not go on holiday and leave it unattended. I also thought the duty of care meant prevention was better than cure, and surely making sure your animals are safe and secure is all part of it, but it seems not in the case of a pet duck.

I also hate conflict, and the previous tenant was told by these neighbours that her dog was not allowed in the back garden as their dog got through and they were worried her dog would damage their dog. So this has been going on for some time, and all I want is a peaceful life. They have seen me struggling to try and secure the fence and they sit in their garden laughing, being on crutches on a slope trying to secure a fence behind large trees is not easy but I am doing this every day and he still manages to find a hole to get through. The R.S.P.C.A did say if I have done everything possible to try and secure the fence then I am free of fault, but my conscience tells me something else.

I was just wondering if anyone had any thoughts on the duty of care act and what it really means because my understanding of it has been thrown up in the air now.

[Brockp]

The problem with UK law is that it sets out general principles and then lets case law refine these by precedence. The Duty of Care is a classic example. The general test in UK law is one of "reasonableness". i.e. were your actions reasonable did you take all reasonable precautions to ensure something that was predictable didn't happen?

Very different from a federal system where every eventuality is documented in statute.

The problem with our system is that we don't know the answer until there is a case which sets precedence.
If you have done everything that is reasonable to keep your dog and the ducks apart then in law you are unlikely to be guilty particularly if you have discussed the issues with your neighbour.

Unfortunately this doesn’t help good friendly relationships with the neighbours if things go wrong.

Peter

[kimr]

Well I think I have cracked it,( or should I say quacked it) I have had another go at trying to stop him from getting through and so far it seems to be working, he keeps running up and down whining because he cant get through, so for now I think the ducks are safe

I am still annoyed about the R.S.P.C.A, I do donate every month to them as I think they do a fantasic job (most of the time) but it has annoyed me that they bring laws in which affect a lot of people, and they are not sure what the law means themselves. In this case I see it as:- "it's your fence, your ducks, sort it". Not my fence not my ducks but hopefully I have sorted it, and all because I do actually care.

[Manky Sanke]

Kim,

As I promised, when I was at the animal welfare conference in Wales, I asked about the situation regarding the duty of care to your neighbour's ducks.

Don't shoot the messenger. I'm only bringing back the answer!

Currently the RSPCA don't put laws onto the statute book but they can bring prosecutions under "The Prosecution of Offenders Act 1985" in relation to "The Animal Welfare Acts 2006 Chapter 45" in England and Wales and "The Animal Health and Welfare (Scotland) Act 2006" and the "Welfare of Animals (N.I.) Act 1972". In doing so, they adopt the same code as the Crown Prosecution Service.

Coincidentally, this aspect of the Law was well covered as part of a presentation by the Senior Prosecutions Case Manager entitled "The Decision to Prosecute".

In a brief extract from the presentation it states;

The Evidential Test:
There must be a realistic prospect of conviction, if not, they must not proceed. [Their underlining].

Since there is no realistic chance of anyone being convicted for a crime that hasn't yet happened, that is probably why the official you spoke to said they couldn't intervene before the abuse/cruelty had happened.

I asked the Learning and Development Manager for Wales (she trains RSPCA Inspectors) about your particular situation. It's complicated because there are two duty of cares involved.

Anyone who keeps animals that require protection has a duty of care to protect them - your neighbour must ensure his ducks are properly protected. Yes!! Got him bang to rights, he must fence them in!!

But.

Anyone who keeps an animal that may pose a threat to another animal has a duty of care to keep it suitably confined. Oops!! You have to ensure your dog doesn't trespass onto someone else's property and harm his livestock. You can't just say your neighbour should do the protection for you by building a better fence or farmers would also have to build six foot high brick walls around a field full of sheep to stop your "dangerous dog" from attacking them.

Complicated isn't it? It comes down to a decision of whether you should have to keep your dog inside your property or whether your neighbour has the responsibility to keep your dog out of his.

Lawyers would need to become involved and that would get very messy.

So, the best suggestion seems to be what I think you have already done, whatever the state of the fence, do whatever is necessary to keep your dog inside your property.

[Manky Sanke]

But whose responsibility is it, to keep the heron out of your pond?

[ageinghippy]

But whose responsibility is it, to keep the heron out of your pond?

I would say that would be down to you.

Obviously, herons are known to enjoy eating fish, so, knowing this, it is surely down to you to protect your fish from getting themselves eaten. You could try relying on the power of your prayers to protect them, but you`d probably be better off putting a net over your pond. Hope this helps.


Chris (another one)

[Manky Sanke]

Chris,

The question was a bit tongue in cheek but if you take it seriously, that's a perfect answer. Going back to the advice from the RSPCA; if you have an animal that needs protecting, it is your duty of care to protect it. The heron is a wild animal that doesn't have an owner, so there is no-one with a duty of care to prevent it attacking other animals, ie your koi.

Next question. If there are so many herons, why are there so few recipes?

[ageinghippy]

Hi Mr Manky,

Yes, I did realise that the question was `tongue in cheek`, my reply was written in the same vein, witness the `smilies`. AND I was grinning while I typed.

Regarding your follow up question, I can`t say that I`ve come across specific heron recipes, but surely any chicken or duck recipies would do you wouldn`t they, and there are hundreds of them in the recipe books, from medieviel to Jamie Oliver.


Chris (another one) and still grinning

[kayoss]

If I can ask a not so "tongue in cheek" question, but one that really grates on me?

My koi are in a raised pond which is enclosed on three sides and covered by polycarb, and I have secure fencing all round (mostly at least 6ft high) with trees and shrubs etc giving extra security.

So, who has the "duty of care" to stop the bloody cats that come into my garden, stress my koi and kill the wild birds that we feed?

Cheers

Bob

[ageinghippy]

Hi Bob,

Bizarrely, I think you`ll find that `cats`are classed as being wild animals, and allowed the freedom to roam where they will.

The logic behind this, I think, comes from the sheer impossibility of being able to control a cat once it gets outside the house, unlike a dog. If dogs came with the same ability to jump/leap over a fence as a cat, they would probably be classed as uncontrollable as cats as well, which is a rather frightening thought. ( We`d all have to have 10ft high fences in case that 5stone rotweiller from next door `popped` over.)

Have you thought of trying one of those infra red beam deterrents?? When the beam is broken, I think they give out a super sonic sound that only cats/foxes can hear. 10 years ago or so, I used to have 6 or 7 cats in the houses round me, but after getting a beam thingy, I`ve never seen traces of cats in my garden.


Chris (another one)