Peter Kuehne & Anor v Warren Shire Council

[2013] HCASL 134

PETER KUEHNE & ANOR

v

WARREN SHIRE COUNCIL

[2013] HCASL 134
S218/2012

1. The applicants are the father and brother of the late Tyra Kuehne, who died in 2006 at the age of four from multiple injuries that she sustained in an attack by one or more pig-hunting dogs. At the time of the attack, Tyra lived in New South Wales with her mother.  The dogs were owned by a neighbour of Tyra's mother and the attack occurred at the neighbour's residence.  The applicants sued the respondent council in negligence.  Their case was, in essence, that the Council was negligent in failing to exercise its statutory power to declare the pig-hunting dogs as "dangerous" under the Companion Animals Act 1998 (NSW). Section 33 of that Act defined a dog as dangerous "if it has, without provocation: (a) attacked … [an] animal (other than vermin), or (b) repeatedly threatened to attack or repeatedly chased a person or animal (other than vermin)".

2. The applicants succeeded at trial and were awarded damages. The trial judge (Elkaim SC DCJ) found that the Council's statutory obligations in relation to dangerous dogs gave rise to a duty of care owed to the applicants to prevent harm from a foreseeable risk of injury. His Honour found that the Council breached that duty, causing damage to the applicants. Crucially, the trial judge found that as pig-hunting dogs that had "attacked … [an] animal", the dogs necessarily came within the statutory definition of "dangerous". His Honour rejected the Council's submission that hunting dogs, in attacking animals in accordance with their training and instruction, do not do so "without provocation" and so fall outside the statutory definition. The trial judge also found that s 43A of the Civil Liability Act 2002 (NSW) was no barrier to imposing liability because the Council's failure to exercise its "special statutory power" was "so unreasonable that no authority … could properly consider the … omission to be a reasonable … failure to exercise its power".

3. The respondents successfully appealed. The Court of Appeal (McColl and Whealy JJA and Sackville AJA) unanimously held that the trial judge erred in his construction of s 33 of the Companion Animals Act 1998 (NSW) by giving too narrow a meaning to "provocation". The Court of Appeal held that hunting dogs that attack animals in accordance with their training and instruction do not do so "without provocation" and so there was no basis for the dogs in question to be declared as dangerous solely because they were pig-hunting dogs. The Court of Appeal considered the applicants' further contention that the dogs fell within the second limb of the definition of dangerous, by having "repeatedly" threatened or chased a person or animal, and dismissed that contention on the evidence. By majority (Sackville AJA not deciding), the Court of Appeal also held in the alternative that the trial judge erred in the application of s 43A of the Civil Liability Act 2002 (NSW). Proceeding upon the assumption that the dogs were within the statutory definition of "dangerous", the majority found that the Council's failure to declare the dogs was not "so unreasonable" within the meaning of s 43A.

4. The applicants seek special leave to appeal on proposed grounds that the Court of Appeal erred in its approach to s 33 of the Companion Animals Act 1998 (NSW) and s 43A of the Civil Liability Act 2002 (NSW). As the Court of Appeal held that these sections were independent barriers to the applicants' case, the applicants would have to sustain both grounds in order to succeed in an appeal to this Court.

5. Section 33 of the Companion Animals Act 1998 (NSW) was amended in 2006 after the death of Tyra Kuehne. The section now provides that a dog is dangerous if it is "kept or used for the purposes of hunting". Contrary to a submission in the respondent's summary of argument, the amendment neither supports nor casts doubt upon the Court of Appeal's construction. The principle in Grain Elevators Board (Vic) v Dunmunkle Corporation[1], as it has subsequently been observed[2], requires care in its application. That said, an effect of the amendment is that any appeal in relation to the construction of s 33 as it existed before the 2006 amendment would be of limited general importance. Its importance for the parties is not to be ignored, but the Court of Appeal's construction is not attended by sufficient doubt to warrant the grant of special leave to appeal.

   [1](1946) 73 CLR 70; [1946] HCA 13.

   [2]See especially Hepples v Federal Commissioner of Taxation (1991) 173 CLR 492 at 539-540; [1991] HCA 39; Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 at 212; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382.

6. The applicants do not appear to contend that the Court of Appeal erred in principle in its approach to s 43A of the Civil Liability Act 2002 (NSW). The proposed ground of appeal appears to allege only that the Court of Appeal was wrong to conclude that the Council's failure to declare the dogs was not "so unreasonable" within the meaning of the section. Accordingly, the proposed ground of appeal raises no point of general principle that would warrant a grant of special leave to appeal.

7. Despite the tragic circumstances of this case, special leave to appeal must be refused.

8. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
14 August 2013 S.J. Gageler