In a groundbreaking case, the District Court of NSW has found Warren Shire Council guilty of negligence for failing to make a dangerous dog declaration under the Companion Animals Act.
The finding was made in a lawsuit brought by the father and young brother of a four year old girl, Tyra Kuehne, who was mauled to death by a pack of pig hunting dogs The dogs were kept in a neighbour's yard, and the fatal attack happened after the girl wandered into the yard by herself. The evidence before the Court did not indicate precisely how the girl managed to enter the yard.
The council was ordered by the Court (Justice Elkaim) to pay the plaintiffs more than $120,000 in damages for "nervous shock" injuries (psychological trauma) that they suffered as a result of the girl's sudden and violent death. The family did not sue the neighbour who owned the dogs. Justice Elkaim's judgement notes that the reasons why action was not taken against the neighbour are not known.
The Court held the Council liable on the basis that it was on notice that the neighbour's dogs were problematic and potentially dangerous, yet had failed to use its powers to make a dangerous dog delcaration to ensure that the dogs were kept under proper control.
The evidence that was heard by the Court disclosed that before the attack occurred, the Council was aware that a large number of hunting dogs were kept on the neighbour's property; that the dogs frequently escaped into the surrounding neghbourhood; that the Council had received complaints that the dogs were often seen roaming free on the street and had, on at least one occasion, chased a child; that the Council had taken no enforcement action against the owner of the dogs, aside from issuing several penalty infringement notices; and that despite the issuance of the penalty notices, the problems with the dogs continued for a number of years.
The Court also received evidence from a number of local residents concerning their experiences with the neighbour's dogs. The residents accounts indicated that some of the dogs had repeatedly engaged in aggressive behavior, including an incident where one of the dogs had bitten a person. On other occasions, the dogs had snapped, snarled or growled at people who were walking through the neighbourhood. However, it is not apparent from the Court's judgement whether these incidents were reported to the Council before Tyra Kuehne was fatally mauled.
Justice Elkaim determined that the council was not entitled to the protections from a civil damages claim that would ordinarily be availabe to a local government authority under the Civil Liability Act 2002. Section 43A of the CLA provides that a council may be held liable for failure to exercise a statutory power (such as the power to make a dangerous dog declaration) only where the failure to act is so unreasonable that no reasonable council would have not have refrained from taking action (Wednesbury unreasonabless). The District Court held that the council's failure to make a declaration with respect to the neighbour's dogs, which it characterised as "trained hunting machines", crossed this high threshold of unreasonableness.
It is noteworthy that the Court held the council liable even though the dogs that were found in the neighbour's yard at the time that Tyra Kuehne was fatally mauled had not been "individually and reliably" identified as the same dogs that had been earlier observed roaming in the streets or engaging in the aggressive behaviours that had been attested to by the local residents, and even though the Court acknowledged that a dangerous dog declaration can be made only with respect to an individual dog.
Reports in the media suggest that Warren Shire Council may be considering an appeal against the Court's judgement. It appears that Justice Elkaim's conclusion that no reasonable council would have failed to make a dangerous dog declaration may be vulnerable to challenge, given the unavailability of evidence that any of the particular dogs found on the neighbour's property at the time of the attack could be identified as having previously engaged in aggressive behaviour.
As a matter of fact, it appears that given this lack of evidence of prior history, it may well have been very difficult for the council to defend a dangerous dog declaration made with respect to any of the individual dogs. The council might not have been able to successfully defend dangerous dog declarations without evidence that each individual dog kept by the neighbour had been involved in attacks or other aggressive behaviour. It is therefore entirely possible that, on appeal, a finding may be made that, contrary to the determination of the District Court, no reasonable council would have made a dangerous dog delcaration in the circumstances (due to the possibility that such a declaration might have been found to be beyond the council's powers under the Companion Animals Act and thus might have been overturned by a Local Court).
The finding was made in a lawsuit brought by the father and young brother of a four year old girl, Tyra Kuehne, who was mauled to death by a pack of pig hunting dogs The dogs were kept in a neighbour's yard, and the fatal attack happened after the girl wandered into the yard by herself. The evidence before the Court did not indicate precisely how the girl managed to enter the yard.
The council was ordered by the Court (Justice Elkaim) to pay the plaintiffs more than $120,000 in damages for "nervous shock" injuries (psychological trauma) that they suffered as a result of the girl's sudden and violent death. The family did not sue the neighbour who owned the dogs. Justice Elkaim's judgement notes that the reasons why action was not taken against the neighbour are not known.
The Court held the Council liable on the basis that it was on notice that the neighbour's dogs were problematic and potentially dangerous, yet had failed to use its powers to make a dangerous dog delcaration to ensure that the dogs were kept under proper control.
The evidence that was heard by the Court disclosed that before the attack occurred, the Council was aware that a large number of hunting dogs were kept on the neighbour's property; that the dogs frequently escaped into the surrounding neghbourhood; that the Council had received complaints that the dogs were often seen roaming free on the street and had, on at least one occasion, chased a child; that the Council had taken no enforcement action against the owner of the dogs, aside from issuing several penalty infringement notices; and that despite the issuance of the penalty notices, the problems with the dogs continued for a number of years.
The Court also received evidence from a number of local residents concerning their experiences with the neighbour's dogs. The residents accounts indicated that some of the dogs had repeatedly engaged in aggressive behavior, including an incident where one of the dogs had bitten a person. On other occasions, the dogs had snapped, snarled or growled at people who were walking through the neighbourhood. However, it is not apparent from the Court's judgement whether these incidents were reported to the Council before Tyra Kuehne was fatally mauled.
Justice Elkaim determined that the council was not entitled to the protections from a civil damages claim that would ordinarily be availabe to a local government authority under the Civil Liability Act 2002. Section 43A of the CLA provides that a council may be held liable for failure to exercise a statutory power (such as the power to make a dangerous dog declaration) only where the failure to act is so unreasonable that no reasonable council would have not have refrained from taking action (Wednesbury unreasonabless). The District Court held that the council's failure to make a declaration with respect to the neighbour's dogs, which it characterised as "trained hunting machines", crossed this high threshold of unreasonableness.
It is noteworthy that the Court held the council liable even though the dogs that were found in the neighbour's yard at the time that Tyra Kuehne was fatally mauled had not been "individually and reliably" identified as the same dogs that had been earlier observed roaming in the streets or engaging in the aggressive behaviours that had been attested to by the local residents, and even though the Court acknowledged that a dangerous dog declaration can be made only with respect to an individual dog.
Reports in the media suggest that Warren Shire Council may be considering an appeal against the Court's judgement. It appears that Justice Elkaim's conclusion that no reasonable council would have failed to make a dangerous dog declaration may be vulnerable to challenge, given the unavailability of evidence that any of the particular dogs found on the neighbour's property at the time of the attack could be identified as having previously engaged in aggressive behaviour.
As a matter of fact, it appears that given this lack of evidence of prior history, it may well have been very difficult for the council to defend a dangerous dog declaration made with respect to any of the individual dogs. The council might not have been able to successfully defend dangerous dog declarations without evidence that each individual dog kept by the neighbour had been involved in attacks or other aggressive behaviour. It is therefore entirely possible that, on appeal, a finding may be made that, contrary to the determination of the District Court, no reasonable council would have made a dangerous dog delcaration in the circumstances (due to the possibility that such a declaration might have been found to be beyond the council's powers under the Companion Animals Act and thus might have been overturned by a Local Court).
Despite the prospect that the District Court's judgement may be reversed if an appeal is taken, the result nonetheless demonstrates that councils face the risk of damages if they become aware of a risk to public health and safety that is within their power to address and fail to take sufficient action to eliminate the risk.
Thus, notwithstanding the ultimate outcome, the strong moral of the case is that councils must be vigilant to investigate complaints about potentially dangerous conditions - be they from dogs, unclean food premises, unstable trees, or other causes - and to exercise their authority promptly and effectively to remedy the danger.
After the terribly tragic attack on this innocent small child, the Companion Animals Act was amended to enable councils to declare dogs to be dangerous simply on the basis that they kept or used for the purposes of hunting (see section 33(1)(c). As a fitting memorial, these changes to the law were called "Tyra's amendments". The amended legislation can be found at:
http://www.legislation.nsw.gov.au/maintop/view/inforce/act+87+1998+cd+0+N.
The link to the judgement in the Kuehne case is:
http://www.caselaw.nsw.gov.au/action/pjudg?s=1349411223,jgmtid=152149
Thus, notwithstanding the ultimate outcome, the strong moral of the case is that councils must be vigilant to investigate complaints about potentially dangerous conditions - be they from dogs, unclean food premises, unstable trees, or other causes - and to exercise their authority promptly and effectively to remedy the danger.
After the terribly tragic attack on this innocent small child, the Companion Animals Act was amended to enable councils to declare dogs to be dangerous simply on the basis that they kept or used for the purposes of hunting (see section 33(1)(c). As a fitting memorial, these changes to the law were called "Tyra's amendments". The amended legislation can be found at:
http://www.legislation.nsw.gov.au/maintop/view/inforce/act+87+1998+cd+0+N.
The link to the judgement in the Kuehne case is:
http://www.caselaw.nsw.gov.au/action/pjudg?s=1349411223,jgmtid=152149
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