By Richard Hanson, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Kuehne bt Kuehne v Warren Shire Council [2011] NSWDC 30 
 
Court – District Court of New South Wales
Judge – Elkaim SC DCJ
Date of Judgment – 25 May 2011

FACTS OF THE CASE

In July 2006, four year old Tyra Kuehne died after being mauled by pig hunting dogs in Warren, NSW. Tyra had wandered into her neighbour’s unsecured backyard where the dogs attacked. Peter Kuehne and Dylan Kuehne, the plaintiffs, being Tyra’s father and brother, both brought legal action against Warren Shire Council, the defendant. The cases were considered jointly. The Kuehnes both claimed that the Council should have declared the pig-hunting dogs “dangerous” animals, pursuant to s 33 of the Companion Animals Act 1998 (NSW) (the Act). In accordance with s 51 of the Act, this would have resulted in more strict requirements in relation to the keeping of the dogs.

The council claimed the dogs were not legally dangerous, even though several complaints had been made to the council about the dogs’ aggressive behaviours.

THE ISSUES

• Whether the Council owed the Kuehnes a duty of care.
• If so, whether the Council breached that duty by failing to exercise its powers under the Act.

THE DECISION

Duty of care

The District Court found that the Kuehnes, and the community in general, were especially vulnerable people who relied on the Council to exercise its duties to protect them from aggressive dogs, and that the Council accordingly owed the Kuehnes a duty of care.

Breach of duty

In failing to exercise its legislative powers, the Council was held to have breached this duty. The Council’s decision not to act on the basis of the available evidence about the dogs was deemed to be “so unreasonable” that “no reasonable decision-maker could have made that decision”. The Court found that “but for” the Council’s failure to act on complaints about Mr Wilson’s dogs, the attack would not have occurred. Importantly, the Court determined that the dogs were dangerous within the meaning of the Act merely due to their nature as pig hunting dogs

COMMENTARY

Following the death of Tyra, s 33 of the Act was changed to include dogs “kept or used for the purposes of hunting” within the definition of dangerous.

On an appeal brought by the Council (Warren Shire Council v Kuehne and Another [2012] NSWCA 81), it was found that the dogs could not be classified as dangerous solely on the basis that they were pig hunting dogs. One reason stemmed from the fact that there were no provisions in the Act for retroactivity. In addition, the appeal Court found that there were no other grounds upon which the council could have declared the dogs dangerous. Nevertheless the Court agreed with the reasoning of the primary judge about the role of the council and the importance of the relationship between the council and its citizens.

Although the Council was successful on appeal, councils remain bound to exercise their responsibilities under the Act.