Australia: NSW Council pays for fatal dog attack

September Legal Updates: Local Government legal update
Last Updated: 2 October 2011
Article by Claude Armeli

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 'dangerous'.

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 foreseeable;

(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 decision.

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.

4. Causation:

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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