In June, we reported on a NSW District Court decision where
damages were awarded against a Council for breach of its duty of
care in relation to a fatal dog attack on a four year old girl. The
girl's father and brother received $95,330 and $28,506
respectively for nervous shock and future medical treatment,
following the Court's decision that the Council had failed
to take adequate steps to prevent a foreseeable and not
insignificant risk of harm.
NSW Court's considerations
The Plaintiffs argued that the Council was negligent for failing
to implement, or make use of, its powers under the Companion
Animals Act 1998 (NSW), in particular the power under Section
34 to declare a dog "dangerous". The court concluded that
there was a duty on the Council to exercise its powers under the
CAA to have the dogs declared dangerous and that its failure to do
so was negligent.
Implications for Western Australia
The NSW provisions are almost identical to those governing dog
control in WA. The Dog Act 1976 (WA) provides that a local
government may declare a dog dangerous. This is identical to the
NSW provision. Thus, a WA court may find itself in exactly the same
position, namely being required to declare a dog
The factors which will determine liability for negligence are
also essentially the same in both jurisdictions. It follows that
where a WA Council fails to declare a dog dangerous, and that dog
is then involved in an attack, a WA court would have to consider
the same issues, namely:
1. Whether there is a duty of care:
In NSW, the court found that the CAA provided the Council with a
mechanism to prevent residents from being exposed to dangerous
dogs. The residents were therefore entitled to expect the Council
to exercise its statutory powers in respect of such dogs. They were
directly interested in the control of the dangerous dogs and this
gave rise to a right to sue for damages where the Council
negligently failed to exercise its statutory duties.
The Dog Act is likely to give rise to a similar duty of
care in Western Australia.
2. Whether any duty of care was breached:
In NSW, the court decided that:
(a) The risk of a child entering the property was
(b) The risk of a child gaining access to the dog
owner's backyard was not insignificant; and
(c) A reasonable person (or entity) armed with the
Council's powers would have taken precautions to avoid the
risk, given that:
(i) There was a high probability that harm would occur if
precautions were not taken;
(ii) Serious harm was very likely if a child wandered,
unsupervised, amidst a pack of hunting dogs; and
(iii) The burden of declaring the dogs dangerous was light.
A WA court is likely, in similar circumstances, to follow the
3. Possible defence:
In NSW, the court had to consider whether or not the
Council's conduct was reasonable. In WA, a defence is
available where the decision was not so unreasonable that no
reasonable public body or officer in the defendant's
position would have made it.
In NSW, the court found not only that the Council's
failure to act was unreasonable but that it was so unreasonable
that no authority in the Council's position could properly
consider the act or omission to be a reasonable exercise of, or
failure to exercise, its power.
The following factors were relevant:
(a) The Council had received complaints about the dogs over a
number of years;
(b) It had the power to do something about the dogs;
(c) It had reached the conclusion that nothing could be done
about the dogs, despite having made no attempt to control the owner
and his dogs through a dangerous dog declaration; and
(d) There was the possibility of very serious harm being caused
by the dogs, whether in the backyard or as they roamed free.
The NSW court had to consider whether, 'but for' the
Council's conduct, the attack would have happened. It was
satisfied that if the Council had acted as soon as it was aware the
owner was keeping hunting dogs and not securing them, the attack
would not have occurred. Again, similar considerations are likely
to apply in WA.
Recommendations for WA Local Governments:
Implement a policy for dealing with dangerous dogs, including
criteria for determining whether a dog is dangerous;
Ensure all authorised persons implement the policy;
Keep detailed file notes of all complaints and dealings with
dangerous dogs and their owners;
Ensure dangerous dogs are declared as such. In the NSW case,
frequent conversations with the owner and the issuing of
infringement notices were deemed insufficient. Once classified as
dangerous, the burden is likely to shift to the owner, who will
then need to comply with any specific requirements.
For more information, contact Laurie James, Anne Wood or Paula
Sullivan on (08) 9321 3755.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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