Chapter 4 - Other Procedural Matters

This Chapter deals with other important procedural matters relating to the standard of proof and consideration of who can be sued as a defendant. The decisions primarily stem from cases involving companion animals who have attacked other animals or humans. In these circumstances a plaintiff might prefer to sue a local council in order to optimise the likelihood of receiving payment following a verdict in their favour. However, as the case of Kuehne bt Kuehne v Warren Shire Council demonstrates, the plaintiff may need to overcome a preliminary issue determining whether the local council has an obligation to exercise its legislative and administrative powers. If not, the plaintiff must resort to other avenues of redress.

4.1 Alford v Greater Shepparton City Council (General) [2011] VCAT 322

Prepared by Rosario Russo

Court

Victorian Civil and Administrative Tribunal, Administrative Division

Facts

Alford, the applicant, was the owner of a dog declared a “dangerous dog” by the Greater Shepparton City Council, the respondent. In accordance with s 34 of the Domestic Animals Act 1994(Vic) (‘the Act’), the local Council may declare a dog dangerous if “the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal”. Under the Act, a “serious injury” is defined as “an injury requiring medical or veterinary attention in the nature of (i) a broken bone, or (ii) a laceration, or (iii) a partial or total loss of sensation or function in a part of the body, or an injury requiring cosmetic surgery”.

It was alleged that Alford’s dog had attacked a goat belonging to the owner of a neighbouring property. The action before the Tribunal involved a review of the decision to declare the dog dangerous.

Issues

• Whether Alford’s dog did in fact bite or attack the neighbour’s goat
• Whether Alford’s dog was dangerous

Decision and Reasons for the Decision

The decision declaring Alford’s dog dangerous was set aside.

Whether Alford’s dog caused the injury

VCAT Member Gerard Butcher accepted a veterinary report describing the injuries suffered by the goat and was therefore satisfied that the goat did suffer a “serious injury” as defined in the Act.

The Tribunal then turned to whether the applicant’s dog was the cause of the injuries, stating that the requisite standard of proof was the civil standard, being the balance of probabilities. The Tribunal further noted that when the law requires proof of a fact, the Tribunal must feel an actual persuasion of the occurrence or existence of the fact. Proof cannot be found as a result of a mere mechanical comparison of probabilities, independent of any belief in its reality. The seriousness of the allegation made, the unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the Tribunal’s reasonable satisfaction as to whether or not an issue has been proved.

Whether Alford’s dog was dangerous

Evidence was admitted indicating an absence of prior or subsequent incidents involving Alford’s dog and attesting to his gentle nature. Further evidence showed that the applicants and their neighbours had poor relations and a history of allegations of animals wandering onto each other’s property. The unavailability of key witnesses for the Greater Shepparton City Council meant that the Tribunal was unable to test this evidence under cross-examination, and as a result, it was accorded less weight than sworn evidence.

In considering the evidence the Tribunal was reasonably satisfied that the applicant’s dog did not cause the injury to the goat, and that he or she should consequently not be declared a dangerous dog.

Significance of the Case

The case demonstrates that the civil burden of proof, being the balance of probabilities applies when considering evidence whether a dog is a “dangerous dog” pursuant to s 34 of the Act. The VCAT must be persuaded of the actual occurrence or existence of an alleged event having regard to the gravity of the consequences before a declaration can be made.

4.2 Kuehne bt Kuehne v Warren Shire Council [2011] NSWDC 30

Prepared by Richard Hanson

Court

District Court of New South Wales

Facts

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.

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

Decision and Reasons for 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.

Significance of the Case

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.