Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Warren Shire Council v Kuehne & Anor [2012] NSWCA 81
• Hearing dates: 6 February 2012
• Decision date: 16 April 2012
• Before: McColl JA at [1]; Whealy JA at [2]; Sackville AJA at [184]

Decision

(1) Appeal allowed.

(2) Set aside judgment of Elkaim DCJ.

(3) Verdict and judgment for the appellant.

(4) Respondents to pay the appellant's costs of the proceedings and of the appeal.

(5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

(6) Cross appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - Appeal - negligence - common law duty of care - s 33 Companion Animals Act 1998 (NSW) - whether local council owed a duty to residents to declare a dog "dangerous" - Stuart v Kirkland-Veenstra - whether a special statutory power - relationship between council and residents created by special statutory power - degree of control exercised by council - vulnerability of those who depend on proper exercise of statutory power.; TORTS - Appeal - negligence - breach of duty - whether hunting dogs inherently "dangerous" for the purposes of s 33 Companion Animals Act 1998 - whether hunting dogs had previously attacked "without provocation" - s 43A Civil Liability Act 2002 - exercise of "special statutory power" - whether dogs had "repeatedly" threatened to attack or "repeatedly" chased people - Wednesbury unreasonableness standard - whether council's failure to declare dog(s) dangerous so unreasonable no authority possessed of special statutory power could properly consider omission to be reasonable - s 44 Civil Liability Act 2002.; DAMAGES - Appeal - s 15 Civil Liability Act 2002 - meaning of "dependents" - s 15B(2)(a) Civil Liability Act 2002 - whether services needed to be provided to a class of dependents to claim gratuitous domestic services.
• Legislation Cited: Civil Liability Act 2002 (NSW) - s 5B, s 5D, s 5E, s 15B, s 33, s 43, s 43A and s 44; Companion Animals Act 1998 (NSW) - s 8, s 9, s 10, s 10A, s 11, s 13, s 14, s 15, s 16(3), s 18, s 21, s 23, s 33, s 34, s 36, s 51, s 52; Local Government Act 1993 (NSW) Ch 12 Part 3; Supreme Court Act 1970 (NSW) - s 65, s 69
• Cases Cited: Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Brodie v Singleton Shire Council [2001] HCA 29, 206 CLR 512; Bromley London Borough City Council v Greater London Council [1983] 1 AC 768; Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, 200 CLR 1; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, 243 CLR 361; Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1; Pyrenees Shire Council v Day [1998] HCA 3, 192 CLR 330; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263; Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215; Sutherland Shire Council v Heyman (1985) 157 CLR 424
• Category: Principal judgment
• Parties: Warren Shire Council (Appellant/Cross Respondent); Peter Kuehne (First Respondent/Cross Appellant); Dylan Kuehne, by his tutor Peter Kuehne (Second Respondent)
• Representation: Counsel: R.S. Sheldon SC (Appellant/Cross Respondent); P.G. Maiden SC, J.D. Cairn (Respondents/ Cross Appellant); Solicitors: DLA Piper Australia (Appellant/Cross Respondent); Herbert Weller Solicitor (Respondents/Cross Appellant)
• File Number(s): 2009/336152

Decision under appeal

• Jurisdiction: 9101
• Citation: Kuehne v Warren Shire Council
• Date of Decision: 2011-05-25 00:00:00
• Before: Elkaim SC DCJ
• File Number(s): 2009/336152; 2009/336153

Judgment

1 McCOLL JA: I have had the privilege of reading Whealy JA's judgment in draft. I agree with his Honour's reasons and the orders his Honour proposes. I also agree with Sackville AJA's comment in [186].

2 WHEALY JA: On 19 July 2006, a young girl, apparently unsupervised, wandered into the back yard of a property at 29 Garden Avenue, Warren, in western New South Wales. Although the precise sequence of events is unknown, it is apparent that she encountered a number of dogs in the back yard. One or more of six dogs mauled her terribly and she died the next day. The dogs were kept there by their owner, Mr Thomas Wilson.

3 Two separate proceedings were brought in the District Court by the girl's father, one of which was by him as tutor for her brother, Dylan. The defendant in each case was Warren Shire Council ("the Council"). The claim on behalf of each plaintiff was that he had suffered nervous shock injuries giving rise to substantial damages. The proceedings were consolidated and heard together before his Honour Judge Elkaim SC (the primary judge). The claims were ultimately successful. Judgment was entered for the plaintiffs. A verdict and judgment was entered for Tyra's father in the sum of $95,330.60. A verdict and judgment was entered on behalf of Dylan in the sum of $28,506.15. Costs were awarded against the Council.

4 The Council has appealed in each matter. It asserts that the primary judge erred in his finding that a duty of care was owed by the Council to Tyra and members of her family and, even if a duty were owed, his Honour erred in finding that there was a breach of duty. Moreover, the appellant maintains that s 43A and s 44 Civil Liability Act 2002 (NSW) ("Civil Liability Act") required the judge to find in its favour on liability.

5 There is a cross appeal alleging that the primary judge erred in one aspect of his damages findings, namely, the conclusions he reached in relation to s 15B Civil Liability Act.

The nature of the proceedings and issues involved

6 The seminal event identified in the pleadings filed on behalf of the plaintiffs was the death of the young girl, Tyra, as a consequence of the attack upon her by a group of dogs housed at Mr Wilson's property at 29 Garden Avenue, Warren. The facts surrounding the death of Tyra, although uncertain in some respects, were not essentially in issue.

7 The plaintiffs in their Statements of Claim alleged that the dogs had been trained to hunt and chase pigs (para 7) and that prior to the deceased's death one or more of the dogs had repeatedly roamed the streets of Warren (para 8). It was also alleged that, prior to the deceased's death, one or more of the dogs had repeatedly chased and attacked people (para 9). These facts, especially the last, were in issue at the trial. Also in issue was the fact, as asserted by the plaintiffs, that employees of the Council either knew of or had received complaints about the dogs and their behaviour.

8 By its pleadings, the Council denied that it knew or ought to have known that one or more of the dogs that injured Tyra was or were dangerous and presented an unreasonable risk to people such as Tyra.

9 In their Statements of Claim, each plaintiff alleged that the Council owed both Tyra and the relevant plaintiff a duty of care to take reasonable care to avoid foreseeable risk of injury to them. This was denied on the pleadings.

10 Further, by paragraph 15 of each Statement of Claim, the death of Tyra was alleged to have been caused by the negligence of the Council. The particulars of negligence were as follows:

"Particulars of negligence

(a) Failing to take reasonable care to protect the deceased from the risk of harm, in circumstances where complaints about one or more of the dogs had been made to the defendant by the plaintiff and other people, and the risk that one or more of the dogs would attack a person such as the deceased or someone else was foreseeable and was not insignificant.

(b) Failing to act as authorised under the Companion Animals Act, particularly sections 18, 21 and 34 and thereby exposing the deceased to a foreseeable and significant risk of injury which could have been avoided by reasonable care on its part.

(c) Failing to act on complaints made to it concerning the potential risk to people's safety posed by one or more of the dogs by not taking reasonable steps to avoid the foreseeable risk of injury.

(d) Failing to require the owner or occupier of the premises to secure the dogs pursuant to the provisions of the Companion Animals Act and Companion Animals Regulation.

(e) Failing to ensure the dogs' owners or the owner or occupier of the premises where the dogs were ordinarily kept complied with the enclosure requirements of the Companion Animals Act and Regulation.

(f) Failing to seize the dogs pursuant to its powers under the Companion Animals Act."

11 The Council, by its Amended Statement of Defence, denied each particular of negligence pleaded in paragraph 15 of the Statement of Claim. Further, in answer to the whole of the Statement of Claim, the defendant denied that it owed any duty of care to the plaintiff under s 5B of the Civil Liability Act 2002. It denied, in the event, that if it were found to have owed either plaintiff a duty of care, that any act or omission on its part caused injury, loss or damage: s 5D CLA. It also pleaded and placed reliance upon s 43, s 43A and s 44 of the Act. There were other matters pleaded, but it is not necessary to recite them all.

Proceedings of trial

12 As I have said, both matters were heard together. Although the plaintiffs' pleadings had identified s 18, s 21 and s 34 of the Companion Animals Act 1998 (NSW) as relevant to the allegations of negligence on the Council's part, by the end of the hearing the plaintiffs did not further rely on s 18 and s 21. The principal issues were identified by the primary judge in his decision given on 25 May 2011. He summarised the plaintiffs' case as follows:

"(a) The Council was aware that a number of dogs resided at number 29 Garden Avenue, Warren.

(b) It was aware that some of the dogs were trained to hunt pigs.

(c) It was aware the dogs were not kept securely on the premises. They were known to, and often did, roam freely in the local area.

(d) Because they were pig hunters and because of frequent complaints about their behaviour, the dogs fell within the definition of 'dangerous' in s 33 of the Companion Animals Act.

(e) The defendant, pursuant to s 34, should have declared the dogs to be dangerous. Its failure to do so was an act of negligence.

(f) Had the declaration been made, the effect would have to been to require the dogs, if they remained at 29 Garden Avenue, to be housed in a child-proof enclosure ...

(g) If the back yard of 29 Garden Avenue had been child-proof, Tyra could not have entered.

(h) As a result of Tyra's death, the plaintiffs suffered nervous shock injuries giving rise to substantial damages."

The findings by the trial judge

13 His Honour found that the appellants owed both respondents a duty of care. In this regard, the respondents had submitted that the combination of the duties imposed on Councils and the objects of the Companion Animals Act, read together with the principles stated by the High Court in cases such as Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, 200 CLR 1, and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, established in the present circumstances a duty to prevent harm from a foreseeable risk of injury actionable at the behest of each of the plaintiffs.

14 His Honour accepted these submissions and made the following observations (Appeal Book 67-68):

"In dealing with section 44 I came to the conclusion that the plaintiffs had a sufficient interest to enable them to enforce the powers of the Council under s 34 of the Companion Animals Act. I would go further, however, and conclude in the terms referred to by McHugh J, that the plaintiffs here have a personal right to sue for damages. The Companion Animals Act provided the Council with a regime to prevent its residents from being exposed to dangerous dogs. It is implicit in the control of dangerous animals that persons may be subject to the obvious dangers associated with the animals.

Residents of Warren depended on the Council to exercise its statutory obligations in respect of dangerous dogs. The Companion Animals Act gave the Council the necessary powers. The residents of Garden Avenue were personally interested in the control of the dangerous dogs that lived at number 29. In my view, this reliance created a right to sue for damages for contravention of the Council's statutory duties so that a duty of care existed."

15 His Honour's next critical finding related to the arguments dealing with breach of duty of care. Importantly, he identified, as he saw it, the nub of the plaintiffs' case. This was identified by his Honour as follows (Appeal Book 68-69):

"133. The plaintiffs submitted that the breach of the duty of care was constituted by the failure of the Council to declare the dogs residing at Number 29 Garden Avenue as 'dangerous' as defined in Section 33 of the CAA. The definition, as then applicable, was:

'For the purposes of this division, a dog is 'dangerous' if it has, without provocation:

(a) attacked or killed a person or animal (other than vermin); or

(b) repeatedly threatened to attack or repeatedly chased a person or animal (other than vermin).'

134. The plaintiffs submitted, and as I have found, that the Wilson dogs were a source of frequent complaint to the Council. The plaintiffs then submitted the Council knew that they were dangerous. Pursuant to its duty to regulate the dangerous dogs it should have, under Section 34, declared the dogs to be dangerous. Section 34, again as then in force, was as follows:

'(1) A council may, if satisfied that a dog is dangerous , declare it to be a dangerous dog. It does not matter if the dog is ordinarily kept in another council's area.

(2) A declaration can be made on the council's own initiative or on the written application of a police officer or any other person.

(3) A declaration has effect throughout the State. It is not limited in its operation to the area of the council.

This Part also gives a Local Court the power to declare a dog to be dangerous in certain circumstances.'"

(I should interpolate that, earlier in his decision, the primary judge had made a finding (contested in this appeal) that the Council knew Mr Wilson's dogs were pig hunting dogs. At Appeal Book 57E-G his Honour had said:

"The Wilson dogs were well known to the Council (via Mrs Todhunter and Mr Langby, and probably also Mr Love and Mr Davis) as pig hunting dogs.")

16 His Honour then listed three points that had been argued by the Council (Red 69-70, [135]):

"(a) The structure of Sections 33 and 34 was such that the declaration applies to an individual dog. The evidence did not establish that the dogs that were present when Tyra was attacked were dogs that had been identified by the Council, or ought to have been, as dangerous. The evidence was either absent or unreliable. An example of the latter, which I have already referred to, is that Target could not have been the dog identified by Mrs Moy because it was not yet born when the incident she described occurred. Accordingly it could not be established that the Council had any reason to make a declaration in respect of Target. The same reasoning applied to the other dogs.

(b) The declaration envisaged by Section 34 was one that could only be made by the Council (presumably by resolution). An employee of the Council of his, or her, own accord could not make the decision. Further a decision of the Council was not justiciable.

(c) The Council's power to act was discretionary. Section 34 says the Council 'may' declare a dog to be dangerous. A court could not presume the exercise of the discretion one way or another. Consequently the Council could not be negligent in failing to declare a dog dangerous because its discretion enabled it to decline to make such a declaration."

17 As to the arguments based on s 33 of the Act and, in particular, whether any of the dogs fell within the definition of "dangerous", his Honour said (Red 70):

"136. Dealing first with the structure of Sections 33 and 34. The plaintiffs submitted that all of the dogs, except Tika, were necessarily dangerous because, as pig hunting dogs, they had attacked an animal. It was not necessary for there to be an individual incident linked to each dog. The defendant countered this argument by submitting that the plaintiffs' interpretation of 'dangerous' omitted reference to the words 'without provocation'. The defendant said that while the dogs may well have attacked pigs they had done so only when provoked by their owner to initiate the attack.

137. In my view the provocation envisaged by Section 33 does not include the type suggested by the defendant. Applying a 'purposive interpretation' the reference to provocation, in the context of the section, must be a reference to a dog not being declared dangerous when it has attacked or killed a person or animal after it has been goaded into doing so. Generally this provocation is one that could be seen as justifying (albeit it in a broad sense) the dog's attack.

138. I am satisfied that the provocation referred to in Section 33 does not include the act of directing a dog to attack in accordance with its training. If one contemplates the intent of protecting the public from dangerous dogs it is immediately apparent that a dog trained to hunt is likely to be a dangerous dog." (Emphasis in original.)

18 His Honour then considered an argument raised by the defendant that pigs were "vermin". His Honour rejected this and continued:

"142. I am satisfied that the dogs' history as pig hunters was sufficient to enable their classification as dangerous within Section 33. [Underlining added]

143. The defendant's submission that a declaration is restricted to an individual dog is correct. It is also correct that the specific dogs present when Tyra died have not been individually and reliably identified as having been involved in the incidents observed by the various witnesses. The defendant submitted that because the "dangerous" tag could only be attached to a particular dog, the Wilson dogs, as a group, could not have been subject to a declaration under Section 34.

144. However, with the exception of Tika, all the dogs were trained, or being trained, as hunting dogs. These dogs, I am satisfied, were long term residents of 29 Garden Avenue and were known as such by the Council ..."

19 The next argument considered by his Honour was whether it was necessary for a declaration to be made by the Council or whether it could be achieved by delegation to an officer of the Council. His Honour was of the view that the power to make a declaration could be delegated by the Council to an employee. His Honour then summarised his conclusions on breach as follows (Appeal Book 73-74):

"152. Thus far I have made the following findings:

(a) The Council knew that pig hunting dogs resided at Number 29 Garden Avenue.

(b) The Council knew that these dogs often escaped into the neighbourhood and, therefore, that 29 Garden Avenue was not a secure holding ground for the dogs.

(c) The Council had dealt with many complaints about the dogs, but despite frequent conversations with Mr Wilson and the issuing of infringement notices, the problem continued.

(d) The problem with the Wilson dogs continued over a number of years.

(e) The Council knew Garden Avenue was a residential area inhabited by families with young children. Mr Langby was often in the area and had spoken to parents of young children (eg the Clarks).

(f) The Council had available to it, through Section 34 of the CAA, a means to regulate the keeping of dogs at 29 Garden Avenue.

(g) The Council owed a duty to residents of, at least, Garden Avenue, to exercise its powers for their protection.

(h) It is accepted that the Council did not declare the dogs dangerous or ever consider such a declaration.

153. In my view, on the basis of the above findings, there was a clear and apparent obligation on the part of the Council to exercise its powers under the CAA and have the dogs declared dangerous. It must follow that the failure to take this action was a breach of its duty."

20 His Honour then considered s 5B Civil Liability Act and concluded that the plaintiffs had satisfied him that each of the various matters dealt with in the section should be found in their favour.

21 His Honour also considered s 43, s 43A and s 44 Civil Liability Act. As to the latter section, he held after some deliberation, that the plaintiffs in the proceedings before him had an interest substantially greater than the public at large and therefore would have been entitled to bring the proceedings under s 69 Supreme Court Act 1970 (NSW) to require enforcement by the Council of its obligation to issue a declaration under s 34 Companion Animals Act.

22 The primary judge considered that s 43A rather than s 43 was the applicable section requiring consideration. (That finding is accepted for the purposes of this appeal.) His Honour placed reliance upon the observations of this Court in Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW [2010] NSWCA 328, and its earlier decision in Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd [2009] NSWCA 263. His Honour said (Appeal Book 76):

"161. A finding that reasonableness is at a high level is not easily made. I do, however, think that I can make that finding in these cases. The defendant, over a number of years, had received complaints about the Wilson's dogs. The defendant had the power to do something about them. The defendant had apparently reached a conclusion that nothing would be done about the dogs (evidence of Mr Langby Senior). This attitude existed notwithstanding that no attempt had ever been made to control Mr Wilson and his dogs through a declaration under Section 34 of the CAA. The possibility of very serious harm being caused by these dogs, whether in the backyard at Number 29 Garden Avenue, or as they freely roamed the local streets, was evident. These dogs were trained hunting machines.

Against this background it is my view that the Council's failure to act was unreasonableness at a high level. I am satisfied that the circumstances were such that the Council's failure to act was 'so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power'."

23 His Honour also found in the plaintiffs' favour on causation (s 5D and s 5E Civil Liability Act). He then considered damages and awarded them in the sums I have earlier mentioned.

The course of the appeal

24 There were a considerable number of issues raised by the Council at the hearing of the appeal. It is convenient to set out the appeal grounds in full:

"1. His Honour Judge Elkaim SC denied the Appellant procedural fairness in relation to his rejection of unchallenged evidence of a witness called by the Respondents.

2. His Honour Judge Elkaim SC erred in finding that the Companion Animals Act 1998 (NSW) gave rise to a duty of care.

3. His Honour Judge Elkaim SC erred in his construction of the Companion Animals Act 1998 (NSW) so that there was, on the proper construction, no proper basis for declaring a relevant dog dangerous.

4. His Honour Judge Elkaim SC erred in finding the Appellant was negligent.

5. His Honour Judge Elkaim SC erred in finding that the Appellant was guilty of negligence capable of satisfying the requirements of section 43A of the Companion Animals Act 1998 (NSW) ("Wednesbury unreasonableness"), in its failure to declare one or more dog or dogs dangerous, and that his Honour did not give adequate reasons in support of his finding in that regard.

6. His Honour Judge Elkaim SC erred in finding that section 44 of the Companion Animals Act 1998 (NSW) was met by the Respondents in that they had standing to seek an order compelling the council to act, including that his Honour did not determine what order might have been made and whether that order equated with the duty being asserted by the Respondents; and, as to whether a court would have made any order in the nature of mandamus.

7. His Honour Judge Elkaim SC should have found that there was no occasion in the 2 weeks during which the dogs were present at 29 Garden Street, Warren for the making of a declaration that a dog or the dogs were dangerous and that there was not sufficient time in which an order could be made."

25 In addition, during the hearing of the appeal, Mr Sheldon SC (who appeared for the Council both at trial and on the appeal) sought and was given permission to challenge the finding made by the primary judge (Red 57E-G) that "the Wilson dogs were well known to the Council as pig hunting dogs".

26 The appeal initially proceeded on the basis that a central issue on liability was whether it had been open to the primary judge to conclude (as he undoubtedly did) that the Council's negligence lay in its failure to make a declaration under s 34 of the Companion Animals Act 1998 that one or more of Mr Wilson's dogs was or were "dangerous". The sole basis, it appeared, on which the primary judge had reached this conclusion was that the dogs, being pig hunting dogs, necessarily fell within the definition of "dangerous" mentioned in s 33 of the Act. This was, it will be recalled:

"For the purposes of this Division, a dog is 'dangerous' if it has, without provocation

(a) attacked or killed a person or animal (other than vermin) ..."

27 One of the submissions put by Mr Sheldon (both at trial and in this Court) was that because the dogs were specifically trained to attack pigs, it could not be said that their characteristic of so doing was "without provocation". For this reason, senior counsel argued that the primary judge had erred in finding the dogs were dangerous on the basis that they were pig hunting dogs. If this were an error, as Mr Sheldon argued, it appeared there was no other finding made by the primary judge that could sustain the proposition that the dogs were dangerous so as to qualify them for a declaration under s 34 of the Act. Since the Council's breach was said to be the failure to make such a declaration (or declarations), the respondents' case, it was argued, must fail.

28 In those circumstances, Mr Maiden SC (who, with Mr J.D. Cairn, represented the respondents on the appeal, but not at trial) ultimately sought and was granted permission to file a Notice of Contention in these terms:

"The respondent contends that the decision below should be affirmed on grounds other than those relied on by the Court below:

... His Honour's judgment below can be sustained on the basis that the dogs were dangerous within the meaning of s 33 of the Companion Animals Act 1998 because they had, without provocation, repeatedly threatened to attack or repeatedly chased people."

29 It will be seen that this contention is based on the second limb of the definition in s 33 of the Act. Since that aspect of the legislation had been part of the original pleadings and had not been abandoned at trial by the plaintiffs (even though, by final address, their trial counsel, Mr Boyd, clearly favoured the "pig hunting" limb of the definition), this Court gave permission to the plaintiffs to rely on the contention. This indulgence, however, required the filing of further written submissions by the parties and these were completed by 20 February 2012.

Resolution of the liability issue

30 I shall discuss the damages issue arising on the cross appeal at a later point in these reasons. I turn first to resolve the liability issue.

31 There is no need to detail the comprehensive submissions made by each side on the liability issue. The various matters requiring decision are those I have especially identified in the primary judge's decision, together with the two additional matters that were raised during the hearing of the appeal.

32 Since I have come to a firm conclusion that the appeal must succeed, in part on the narrow point argued in relation to the definition in s 33 of the Act and, more broadly, the issue raised by s 43A of the Civil Liability Act, I will not dwell overlong on the many other issues raised in the appeal. I will first deal with the critical issues (as I see them) that require that the appeal succeed. I will then briefly deal with the remaining issues, all of which I consider should be found in favour of the respondents.

33 The first critical issue relates to the basis on which the primary judge found that, with one exception, the dogs on Mr Wilson's property at the time of Tyra's death were pig hunting dogs and were therefore dangerous within the meaning of the legislation. The "provocation" point was dealt with by the primary judge at [136]-[138] of his decision: Red 70. I have set out his Honour's reasoning at [18] (above). The conclusion he reached was that "provocation" meant an attack or killing after the dog "had been goaded into doing so". It did not extend to directing a dog to attack "in accordance with its training".

34 There are three responses to this. First, his Honour has plainly revealed his primary approach to the interpretation of s 34 of the Act. He has concluded that "a dog trained to hunt is likely to be a dangerous dog". This may be true but it is not the definition in s 33. The assumption his Honour has made, although possibly correct as a matter of common sense, is not the path dictated or permitted by the terms of the statute. As a matter of interest, following the death of Tyra, the Act was amended in a number of significant respects. One was an additional category of "dangerousness", namely, a dog "kept or used for the purpose of hunting". However, that change in the legislation can play no part in the interpretation of the section as it stood at the time of the attack that led to her death.

35 Secondly, the expression "without provocation" is an ordinary English expression. Provocation is defined in dictionaries as follows. Oxford English Dictionary (on-line):

"n. The action of provoking or inciting; incitement, impulse; instigation; (also) an instance of this; an incentive, a stimulus."

Macquarie Dictionary:

"1. the act of provoking.

2. something that incites, instigates, angers, or irritates.

3. Law words or conduct leading to a killing in hot passion and without deliberation."

36 There is no warrant, in the context of this statute, to confine the meaning of the expression "goaded". This is an ambiguous expression itself, carrying with it a somewhat emotive element. In my view, in a situation where a dog has been specifically trained to hunt and attack pigs, it may properly be said, in accordance with ordinary English usage, that the owner of the dog has incited or instigated the dog to do exactly what it was trained to do. The dog hunted the pigs because it was trained to do so and acted precisely on those instructions. As a consequence, the dog has attacked an animal but not "without provocation".

37 While it may be true (as the respondent argued in its written submissions at trial: Black 357 L-T) that "pig hunting dogs have been exposed to learning experiences that encourage aggressive behaviour", that is precisely the training that removes them from the definition of s 33.

38 Thirdly, there is no warrant for concluding (as the respondents suggested in their submissions on appeal) that the provocation envisaged in the section must emanate from the animal that has been attacked. The language is not restricted in that way. Nor does s 16(3) of the Act (which deals with offences by owners where a dog has attacked a person or an animal) assist the respondents. The section creates "a defence" where there is a finding that the incident occurred "as a result of a dog being teased, mistreated, attacked or otherwise provoked". This statutory context is rather different from the language and content of s 33.

39 It must follow, therefore, that the respondents' case that the Council negligently failed to exercise its powers to declare the dogs - any or all of them - as dangerous on the basis that they were trained hunting dogs, must fail. Indeed, as is quite clear, this was the only basis upon which the primary judge made findings to support the conclusions he reached on breach and causation.

40 By the time of their final submissions, the respondents, although they had not altogether abandoned the alternative basis of their pleaded case, put their favoured position quite bluntly:

(a) with one exception, all the dogs at 29 Garden Avenue on 19 July 2006 were pig hunting dogs;

(b) pig hunting dogs were dangerous dogs (within the definition);

(c) the Council knew that there were pig hunting dogs at 29 Garden Avenue;

(d) a reasonable response of a relevant local authority was to exercise its powers to deal with the pig hunting dogs, i.e. to declare them dangerous;

(e) the Council, in breach of its obligation, failed to make the necessary declaration or declarations;

(f) but for the Council's negligence, Tyra would not have been killed and the injuries suffered by the respondents as a consequence.

41 In my opinion, this argument cannot stand because the mere fact that the dogs were pig hunting dogs could not, without more, sustain the finding that they were therefore required to be declared as dangerous dogs. Even if the Council knew that pig hunting dogs were kept at 29 Garden Avenue, it had to be demonstrated that their attacks on pigs were "without provocation". The evidence established precisely the opposite.

42 Mr Sheldon raised three further arguments which were allied to this issue. First, he submitted that the Council did not know that pig hunting dogs were kept at Mr Wilson's home or, at least, the evidence did not establish that the Council had knowledge of this fact. In that regard, Mr Sheldon asked this Court to overturn the primary judge's finding. Secondly, although it was somewhat inconsistent with his principal argument on "provocation", Mr Sheldon argued that the dogs were not trained to attack, but simply to hold the pig until it was killed by Mr Wilson. Thirdly, he argued that it was only the Council in full session which could make the relevant declaration.

43 I do not accept these arguments. As to the first, there is no doubt that Council officers attended Mr Wilson's property in Garden Avenue numerous times and spoke with him about the dogs. Warren was a relatively small town and it is clear that, quite apart from Council officers, many people in the town knew that Mr Wilson kept dogs for pig hunting purposes, as well as for use in his droving ventures. He often carried the dogs in the back of his pig hunting truck. The dogs were seen at his home on many occasions. This was observed by a number of witnesses in the case. For example, Mrs Kelly said that she had seen pig hunting dogs "living at the Wilson residence": Red 71W. Mr Clarke saw his vehicle "driving around town": Black 196E.

44 In my opinion, the primary judge was entitled to make the finding he did concerning the Council's knowledge, especially through its rangers, that Mr Wilson kept a range of pig hunting dogs that were at his premises from time to time between 2000 and 2006.

45 At the trial, his Honour asked Mr Sheldon whether the Council disputed its knowledge that the dogs were pig hunting dogs: Black 283. Mr Sheldon did not make an outright admission, it must be conceded. He rather reserved his position. However, Mr Boyd in his submissions detailed the evidence upon which the primary judge would be entitled to make a finding as to the Council's knowledge. This included diary entries by the ranger, Mr Langby, and the evidence that Mr Wilson's truck was equipped with cages and pig racks, and that it regularly travelled through Warren. Mr Wilson had said in evidence that in 2006 he hunted daily and took the pigs to the chiller in Warren. Mr Langby was frequently at Mr Wilson's premises and appeared to have a reasonably open relationship with him. This evidence thoroughly supported the primary judge's findings.

46 As to the second matter, Mr Sheldon sought to draw a distinction between an attack by a dog on a pig, on the one hand, and a situation where the trained dog "skewered" the pig, as it were, and kept it there until its owner came and despatched it.

47 In my opinion, this argument should be rejected. Mr Wilson had described in very brief terms the consequence of his training of the dogs in these terms (Black 171 B-E):

"Q: And what's the training involve for dogs for the purpose of pig hunting?

A: Well, you've got a dog, you can teach him to find pigs. You take a pup out, well you've trained one, and then you take a younger dog out and he - learns off that dog, the older dog. He catches the pig and then you stick the pig, hang it on your crate and away you go with the next one."

48 This description is apt to describe a situation in which the pig is "attacked" by the dog. In any event, the argument leads nowhere because, even on the basis advanced by Mr Sheldon, the dogs' action, subject to the provocation issue, would fall within the second limb of "dangerous", that is, repeatedly threatening to attack or repeatedly chasing animals.

49 As to the third matter, I agree with the primary judge's conclusion that the making of a declaration was a matter that could have been dealt with under delegation: Red 73 A-E; Local Government Act 1993 (NSW) Ch 12 Part 3 (power to delegate).

Notice of Contention

50 I turn then to the matter raised in the Notice of Contention. The question is: can the primary judge's conclusion (that there was a basis for a declaration under s 34 of the Act) be sustained because the evidence demonstrated that the dogs which attacked Tyra had, prior to the incident, to the knowledge of the Council "without provocation, repeatedly threatened to attack or repeatedly chased a person or animal (other than vermin)"?

51 The respondents argued that there was material before the primary judge that would have justified such a finding and that, indeed, his Honour made reference to a good deal of the evidence in his reasons. A schedule was provided to this Court which 'dot pointed' the references in the transcript. The schedule also contained a summary of findings by the primary judge which were said to be relevant to the matter raised in the contention.

52 The respondents submitted that, based on all of the available evidence and the Jones v Dunkel inference properly to be made regarding the Council officers not being called, the primary judge should have found that the dogs were dangerous within the meaning of s 33 of the Act because they had, without provocation, repeatedly threatened to attack or repeatedly chased people. The dogs were not trained to attack or chase people, so the "without provocation" argument could not save the situation if the evidence favoured the respondents' case on this alternative basis.

53 The reference to Jones v Dunkel was said to arise because the appellant did not call evidence. The respondents had called the two former rangers who had on occasions reported matters to their superiors. The Council, however, did not call those superiors or any other senior officers in the Council structure.

54 I turn then to outline the scope of the arguments advanced on appeal. The appellant argued, first, that the primary judge had declined to find that any one of the dogs on the Wilson premises on the night of the attack had engaged in conduct, other than the hunting of pigs, that would have justified the making of a dangerous dog declaration.

55 Secondly, the appellant argued that the criteria for being declared dangerous was not shown, on the evidence, to have been present in any, let alone all, of the dogs present on the Wilson premises on the night of the attack. Thirdly, because of this identification issue, unless all of the dogs could have been declared dangerous, the respondents could not prove that the dog, or dogs, actually responsible for the attack on Tyra could have been, on the basis of prior behaviour, subject to a dangerous dog declaration. Fourthly, the appellant submitted that no individual dog had been shown to have repeatedly "threatened to attack or chase". The legislation did not permit aggregation of a number of traits of various dogs owned by the same person from time to time. The relevant characteristic had to be present in an individual dog. His Honour had accepted this construction: Red 71R. The respondents had not challenged this construction of the Act.

56 Fifthly, Mr Sheldon submitted that the evidence went only so far as to show that, on a number of occasions, complaint had been made to the Council ranger and that he or she responded by speaking to Mr Wilson and, on three occasions, by fining him. The evidence did not establish, for example, that there was more than one complaint about the same dog. Nor did the evidence support the submission that the Council had entered upon the exercise of the power to declare a dog dangerous by speaking to Mr Wilson from time to time. In this regard, the respondents, who had called the two rangers, did not call evidence from either to suggest that, in speaking to Mr Wilson, either understood, believed or intended that he or she were doing so as part of, or even as a precursor to, the process of declaring a dog dangerous. The fact that such evidence was not called from the respondents' witnesses gave rise to the inference that they could not have given evidence to support such a proposition: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at 384 [63].

57 Finally, the appellant responded to the schedule sought to be relied upon by the respondents and suggested that its own schedule (tendered at the hearing of the appeal) was more accurate in relation to the issues raised in the Notice of Contention.

Resolution of the Notice of Contention

58 Since the primary judge did not make any findings on the alternative basis for making a declaration that any of the dogs were dangerous, it will be necessary to refer in some detail to the contested matters arising from the schedules prepared and exchanged between the parties. It might be observed generally that the respondents may well have preferred the path of showing "dangerousness" by reference to the dogs being all, with one exception, hunting dogs for a sound forensic reason. This was because the evidence about complaints made to Council officers about the behaviour of the dogs was generally sporadic, somewhat unsatisfactory and presented severe difficulties of identification. It was clearly an advantage for the respondents to be able to group the dogs together and identify one common characteristic which might have satisfied the relevant criteria. Be that as it may, it is necessary now to turn to the material before the primary judge which bears on the resolution of the Notice of Contention.

59 The two former Council rangers who were called were Beth Todhunter (nee Cohen) and William Langby Jnr. Mrs Todhunter was a part-time Council ranger from 28 October 1999 to 16 August 2002. Mr Langby was employed in a similar situation between 2003 and 2008. Their duties included patrolling the streets of Warren, responding to complaints from the public about animals generally, and caring for any dogs that happened to be in the pound. As Mrs Todhunter said, ninety per cent of her complaints concerned dogs: Red 46 P-Q.

60 Ms Todhunter said that over the period of her employment she thought she had spoken to either Mr Wilson or his son about their dogs on six to eight occasions. Complaints about the Wilson dogs generally concerned them barking, the dogs roaming the streets and, on one occasion, a 'Collie' chasing a child. She had visited their home at 29 Garden Avenue and issued some three infringement notices to the Wilsons in the course of her duty. Her notes were contained in Exhibit G.

61 Mr Langby Jnr had kept work diaries during the time he was a ranger. He was not able to produce all of them at the hearing because his diaries had been stolen from his utility when he had been in another township attending a literacy course. There were a number of extant entries, however, and these became Exhibit V.

62 The primary judge said this of Exhibits G and V (Red 56Q-57G):

"I think the following matters emerge from the oral evidence and from Exhibits G and V:

(a) Mr Wilson's dogs were a source of perpetual complaint.

(b) Most of the complaints concerned the dogs roaming outside of the Wilson residence.

(c) Some of the complaints related to aggressive behaviour by the dogs.

(d) It must follow that the enclosure in which dogs were kept was not secure. The backyard of the Wilson residence was clearly not capable of containing the dogs that lived there.

(e) Mr Langby frequently visited Mr Wilson at his home and spoke to him in the front yard. This is consistent with the description of the conversation between Mr Langby and Mr Wilson given by Mr Kuehne.

(f) The Wilson dogs were well known to the Council (via Mrs Todhunter and Mr Langby, and probably also Mr Love and Mr Davis) as pig hunting dogs. The rangers often visited 29 Garden Avenue, they often spoke to Mr Wilson and his utility bore the attributes of a pig hunting vehicle."

(Mr Love and Mr Davis referred to in (f) were the superiors of Mrs Todhunter and Mr Langby.)

63 Before examining the evidence that might establish any "aggressive behaviour" on occasions by the dogs at Mr Wilson's property, it is convenient to set out his Honour's findings about the identity of the dogs present at the premises when Tyra was attacked and the details of their ages:

Name	Type of dog	Age	Sex
Widge	Boxer/Cattle Dog/Mastiff	6	Male
Tika	Pure bred Boxer (mother of Widge)	10 or 11	Female
Ouzo	Mastiff/Greyhound/Bull Terrier	4	Male
Target	Boxer/Greyhound/Pit bull	10/11 months	Male
Cage	Boxer/Cattle dog/Greyhound	2	Male
Jessie	Boxer/Wolfhound/Staghound	5 months	Female

This table comes from Red 55 P-W. His Honour remarked, having set out the table, that Mr Wilson said that Widge, Ouzo and Cage were all trained pig hunters. Target was being trained. Tika was a pet. It appears that, after the attack on Tyra all the dogs (with the exception of Tika), were destroyed.

64 Unusually, Mr Thomas Wilson was called by the respondents in their case. He gave his occupation as a drover and an accredited pig hunter. He said that he kept "a number of dogs" at 29 Garden Avenue in July 2006. Tika was his daughter's pet, and the other dogs were hunting dogs or being trained for that purpose. He identified the dogs in accordance with the table prepared by the primary judge. He also gave the ages of the dogs although, in the case of Target, there was later evidence that he was about eighteen months old at the relevant time. Mr Wilson said that, on the evening when Tyra was attacked, Ouzo was "not loose in the back yard"; he was in a separate cage. Jessie was a pup out of Tika and she was only five months old as at July 2006. It was suggested by his evidence that Mr Wilson had a number of other dogs that were owned either by himself or his son, but these were not at the premises on the day in question. They were normally kept out of town. Indeed, Mr Wilson maintained (although the primary judge did not accept him on this) that there were only two dogs, Tika and Widge, who were always at Garden Avenue. Mr Wilson said that about a fortnight before 19 July 2006 the majority of his dogs had been located out of Warren, but they had been brought back into town because there had been a theft of dogs from their normal location.

65 Mr Wilson said that when he found the girl's body in the back yard, Target and Cage were loose in the yard. Target's collar was broken and it appeared that he had broken free. Widge was also running free, although Mr Wilson maintained that Jessie was still in the cage down the back and Tika was on a chain. Ouzo was in another compartment in a cage "down the back": Red 176.

66 The primary judge made a number of findings of fact about the attack on Tyra, including the circumstances of her being in the rear yard of the Wilson's home. He observed that there had been traces of dead chicken found on Tyra's clothing, the inference being that this may have been some type of precipitator for the attack. Although his Honour could not ascertain precisely how the child obtained access to the rear of the Wilson property, it was either, he said, through or over the two gates on the western side of the house or through the house via the front and rear doors. His Honour favoured the former possibility, although the situation was not precisely clear.

67 In any event, his Honour recited the circumstances of the discovery of the child after she had been attacked. Target was found with a red stain, apparently blood, on his fur. This was one of the dogs Mr Wilson had said was loose when he came upon the child in the rear yard. His Honour said (Red 59):

"The dogs were taken to the pound. Five of them were destroyed the following day. Tika was spared. On Snr Constable Walker's evidence there were seven dogs at the house when she attended. Mr Wilson only identified six dogs. Nothing of significance arises from the inconsistency.

There was no evidence to specifically identify which dog, or dogs, attacked Tyra. The fact that five dogs were destroyed perhaps raises an inference about their involvement; however, I think there would be too much speculation involved in that inference to make it reliable."

68 The history of "aggressive" behaviour on the part of Mr Wilson's dogs conveniently starts with the evidence of a local woman, Mrs Moriarty. As with a good deal of the evidence on this topic, it was rather imprecise. Mrs Moriarty had lived at Garden Avenue for some 23 years. When her daughter (who was seventeen at the time of the trial) was a small child "many years ago", she had been bitten on the arm when she stepped off the school bus. This happened near the corner where the Wilsons lived. Mrs Moriarty did not witness the incident but was told about it by a neighbour's child. She said her daughter did not receive any treatment although she did ring the police about it. She was not able to identify the dog that had bitten her daughter.

69 In the period between 2000 and 2002, Mrs Todhunter, the Council ranger, was asked what dealings she'd had with Mr Wilson and his dogs: Red 92. She responded:

"A couple of times I was called around for them barking. There was once one of his dogs had got out and chased a little kid. And another one was that there were so many dogs in his yard."

70 There was one entry in Mrs Todhunter's notes that suggested on 4 August 2000 she had made an entry in relation to a phone call that "a man had been bitten by a dog". Her notes indicate that she went and spoke to the man who had been bitten and explained to him that he had to be able to identify the dogs before the Council could take any action. The notes indicate that "he wasn't real sure". Apparently there was a witness who saw the attack and Mrs Todhunter noted that she would follow this up, but there is no notation as to the consequences.

71 Mrs Todhunter's notes for the remainder of the year showed that she was busy on a daily basis retrieving lost dogs, impounding dogs that were wandering the streets uncontrolled, and otherwise attending to various matters concerning any animal-related complaints. There were no further entries in 2000 related to Mr Wilson. On 5 January 2001, her notes record that there was:

"... a report of Tommy Wilson's black and white dog having a go at small child - mother talked to Tommy's daughter and she said she would tie it up. I went round. No one home. Dog in back yard but not on chain."

The dog was not further identified nor was there any further detail of the complaint, although Mrs Todhunter mentioned the same incident during her evidence in chief.

72 Mrs Todhunter was asked (Red 98):

"Q: From your recollection during the time that you were working for the Warren Council how many times did you have cause to go and speak to the Wilsons in relation to their dogs?

A: Probably six to eight.

Q: And are you able to tell the Court why you went to the Wilsons' home to talk to them about their dogs?

A: It was either for their dogs barking or out on the street. There was one occasion a black and white Border Collie chased a little kid across the road."

The witness also said that if she ever saw the Wilson dogs roaming in the street she would impound them. It would then be necessary for them to be reclaimed from the pound by their owner. On one occasion she said that she rang the RSPCA because she did not consider that the Wilson dogs looked in good health. She thought that she had personally written out three infringement notices to Mr Wilson. One was for dogs roaming the streets and she was unable to remember what the others were: Black 97 T-W.

73 Mrs Todhunter described visiting the Wilson residence to find boxers sitting on the verandah, just outside the front door. She described that, on her approaching the door, these dogs barked and growled at her. However, despite being shown photos of Mr Wilson's dogs at trial, the witness was unable to identify these boxers. Further, in my opinion, the barking and growling would seem unremarkable behaviour for dogs at home on their owner's property in response to someone unfamiliar approaching a front door, and not supportive of a peculiar 'dangerousness'.

74 Moving to some time towards the end of 2002, there was evidence given by a Mrs Moy that, on an occasion when she was taking her granddaughter for a walk in her stroller, two dogs came across "snapping and snarling". This was on Garden Avenue itself. One of the dogs had bitten her on the leg. She "yelled at them to leave" and they did. Mrs Moy described the dogs as best she could, and said she had seen them in the area before. She thought that they lived at the Wilson house. She was shown photographs and identified a photograph of Target as being the dog that had bitten her. She said that she was definite about that: Black 168 R-W. She could not identify the other dog which she described as "a red dog".

75 Two points can be made regarding Mrs Moy's evidence. As the primary judge observed (Red 52 G), it was simply not possible that the dog that bit Mrs Moy was Target. He had been at most eighteen months old in July 2006. As his Honour said:

"Mrs Moy therefore could not have seen him in 2002 or 2003."

76 The other point is that there was no evidence that Mrs Moy reported the incident to the Council or that any Council officer or, for that matter, the police, were aware of the incident.

77 There were no further instances of "aggressive behaviour" until a reasonably significant event occurred in 2004. This incident was dealt with at some length by the primary judge. In that year, the first respondent, Mr Kuehne, had been living with his de facto partner, Ms Fogden. Although Ms Fogden was unsure of when the incident occurred, it appears that it is accepted as having occurred some time in 2004. His Honour said (Red 47 M-W):

"In early 2004 Ms Fogden told Mr Kuehne about a dog from number 29 chasing their sons after they had left the school bus. Mr Kuehne telephoned Mr William Langby, who he knew to be the person at the Council concerned with animals. Initially Ms Fogden spoke to him but Mr Kuehne took over when Ms Fogden became 'huffy and puffy'. This referred to her aggressive tone. Mr Langby came to the Kuehne household where a similar pattern emerged. Ms Fogden was initially aggressive and Mr Kuehne intervened and told Mr Langby that it was 'not acceptable that kids are being chased on the street when getting off the bus'. The conversation was in the proximity of a number of neighbours.

After some discussion, Mr Langby said he would visit the Wilsons and 'sort the matter out'. Mr Kuehne saw Mr Langby drive to the Wilson residence and speak to Mr Tom Wilson for fifteen to twenty minutes. Mr Kuehne said that about six weeks later Mr Joel Wilson confronted him in a pub about reporting the matter to the Council."

78 Ms Fogden said that there were a few other occasions when she had rung the Council about the dogs, but she was not able to be more specific as to when these were or what they related to: Black 110 B-H. It appears that Ms Fogden's two boys had to pass the Wilsons' home after they had alighted from the school bus as they made their way back to their home.

79 Mr Kuehne gave evidence about this matter as well. He had not witnessed the incident, although he had been told, he said, that one of the dogs that had been chasing his boys up the street that afternoon was the dog, Tika. He also identified the dog Widge as a dog he had seen on the streets on occasions, or on the Wilsons' ute or out the front of their property. He was unable to identify the other dogs shown to him in a bundle of photographs, they being photos of the dogs that were impounded after the attack on Tyra.

80 This incident became something of an issue for the primary judge to resolve. Apparently, on instructions, Mr Sheldon suggested to Mr Kuehne that the whole incident with Mr Langby had never occurred. Reliance was placed on a statement made by Mr Kuehne to a Legal Aid solicitor which was somewhat inconsistent with the evidence he had given. A similar inconsistency was raised in relation to Ms Fogden's evidence.

81 However, the primary judge said that, at least in broad detail, he accepted Mr Kuehne's evidence that a complaint had been made to Mr Langby leading to his attendance at the Kuehne household, and was then followed by discussion between Mr Langby and Mr Wilson: Red 49 P-Q.

82 That then was the substance of the 2004 incident. It does not seem that there were any further "aggressive" incidents involving the dogs until 2006, even though there were occasions when the Wilson dogs were out in the street.

83 In 2006, several months before the attack on Tyra, there were, however, three incidents. It is not possible to ascertain the precise order in which the first two incidents occurred. One witness, Mrs Hollick, provided a statement which was tendered in Court without objection. The statement read:

"Several months before the incident in 2006 involving the young child, I was walking down Garden Avenue with some young children I was looking after. I am a family day-care mum. When we went past Wilson's place two of the dogs came out of his premises and walked around us in a circle as we continued to walk down Garden Avenue, Warren.

It was scary and I was terrified and when we got to the park in Garden Avenue only fifty metres from Wilson's house I rang the Council to complain about the dogs. I spoke to Bill Langby, I told him what had happened and he said 'I will go and see Mr Wilson'. On the way home I saw Bill Langby there."

84 As I have said, Mr Sheldon raised no objection to the reading of the statement and indicated that he did not require the witness for cross examination. There was also an agreement recorded in the transcript (Red 220 P-R) that the reference to two of the dogs in the description was a reference to two of the dogs "involved in the incident on the night of Tyra's death".

85 The second "incident" was related by Mrs Kelly, who had lived in Garden Avenue in 2006. A few months before the incident involving Tyra, Mrs Kelly said that she had been walking towards her daughter's home. Her daughter resided in a cul de sac behind Garden Avenue. She said (Red 216):

"I had a white bag in my hand and as I was walking past Tommy Wilson's I cut across the spare paddock and there were these two tan Boxer dogs and they were so close I could hear them breathing and growling as well until I got to my daughter's house. They followed me all the way to my daughter's house."

86 Mrs Kelly said she was scared and when she arrived at her daughter's house she complained to her because the dogs "were never tied up". She also said that she had seen "two pig dogs on Mr Wilson's front lawn" about two or three times a week. Apparently she had some experience with pig hunting and she was able to identify the dogs she had mentioned as "pig hunting dogs". She also gave evidence that she had seen Mr Wilson driving a pig hunting truck. She had seen him bring the vehicle back into town with pigs on it and that this had happened on four or five occasions. She had also seen the Council pound truck up at Mr Wilson's place on occasions and had seen Mr Langby and Tommy Wilson talking on those occasions. There was one other occasion on a Saturday night when she said that Mr Wilson Jnr had three of his pig dogs in the cage of the truck and "they just went ballistic as I walked past". It does not appear that Mrs Kelly made any complaints to the Council about the incident that occurred a few months prior to the attack on Tyra. Nor does it appear that she made any complaint about the dogs to the Council on any occasion.

87 The third incident was described by Mrs Clark, who lived near the Wilson's property. Mrs Clark said that dogs that were housed from time to time at the Wilson residence were out in the street and at night "they usually get into our garbage". She said she'd observed this happen three times a week, maybe more, over a period of twelve months or two years. She had seen the dogs but was not able to identify them.

88 The particular incident she described occurred in the morning. She described it in these terms (Black 208 E-H):

"Yes, I'd just got the kids ready for school and we were renovating our house at the time. We had a front verandah without the railing on it and I walked to the end of the verandah and there was a brown Boxer standing at the end of the verandah. I think it scared me as much as I scared it. And it growled at me and one of the kids ran back inside and told Darren. He came out with a broom and threw it at it and it ran back up the road. But whether it went back to the Wilsons I don't know ..."

89 Mrs Clark said she had seen this dog before and she was able to identify it as the dog Tika, which belonged to the Wilsons' daughter, Crystal. She said that she did not do anything following the incident and she did not make any observations of her husband doing anything.

90 Mr Clark, however, gave evidence concerning the incident described by his wife. He said that he had contacted Bill Langby and asked him to come and do something about it. He said he had chased the dog out of the yard. His recollection was that both Mr Langby and Mr Love, his superior, came out to the home. He dated it as only days before the incident when Tyra had been attacked. He said there were discussions between Mr Langby and Mr Clark in an endeavour to identify the dog that had come into their yard. He described it as "a greyhound-cross looking dog". He saw the ranger and his superior heading towards Tommy Wilson's end of the street. He confirmed that he did not actually see the incident involving his wife, but he could hear it, and when he came out he observed a dog in the yard "being aggressive, growling". He described it as looking "more like a greyhound cross breed" than anything else. He identified, from the photographs shown to him, one dog which he believed was the dog in question. The dog he identified appeared on Exhibit K: Black 194.

91 Mr Clark also gave evidence that he had spoken to Council officers prior to this incident complaining about the Wilson dogs being out on the street. In his cross examination, he agreed that he had "a bit of a bee in his bonnet" about people who did not keep dogs on leads.

92 As to the conflict between Mr and Mrs Clark on the identity of the dog involved in the incident, the primary judge said (Red 53 R-W):

"The incident which occurred some days before Tyra's death was described by Mr Clark as involving a greyhound-cross. He identified the dog in Exhibit K (Target). When Mrs Clark gave evidence she said the dog involved was a Boxer belonging to Crystal Wilson. The fact that the Clarks each described a different dog does not, in my view, take away from the burden of their evidence, namely, that one of the Wilson dogs came to their yard and acted in an aggressive fashion. Mrs Clark also said that for a period of time the Wilsons' dogs used to visit at night to rummage through the garbage."

93 It will be apparent from the whole of the evidence I have recounted that the issue raised in the Notice of Contention presents difficulties for the respondents' case. Quite apart from the difficulty of identifying with precision any dog involved in chasing or threatening people, and linking it to the attack on Tyra, it is by no means clear that the incidents I have described, with some arguable exceptions, could satisfy the test of "without provocation, repeatedly threatening to attack or repeatedly chasing people".

94 The incident involving Mrs Moriarty's daughter occurred "many years ago" and the primary judge correctly regarded it as not significant: Red 54 F-J. The dog was not identified and, in any event, it was almost certainly not one of the dogs present when Tyra was attacked. Moreover, the matter was, it seems, never reported to the Council.

95 The incident on 4 August 2000 when a man was said to have been bitten by one of the Wilson dogs led nowhere. Whether it was one of Mr Wilson's dogs and, if so, which one, was never revealed by the enquiries made by Mrs Todhunter.

96 The third incident related to Mrs Todhunter's report of a dog "having a go" at a small child. This fell within the description of, at least, a threatened attack. It seems the dog belonged to Mr Wilson's daughter and that "she said that she would tie it up".

97 The next incident related to Mrs Moy, and she was certainly threatened and indeed bitten by a dog. As I have mentioned earlier, she was clearly wrong in her identification of the dog and the matter, in any event, was not brought to the Council.

98 In my opinion, these various matters in 2000-2002 were relatively sparse and were sufficiently ancient in historical terms to be of little significance to the issue raised by the Notice of Contention.

99 The incident involving Mr Kuehne's children being chased by some dogs in 2004 was, on the other hand, capable of representing an incident that was plainly within the statutory definition. Moreover, it was reported to the Council. It was acted upon by Mr Langby attending at the Wilson property and speaking to Mr Wilson. It does not appear, however, that the incident was repeated so far as Mr Kuehne's household was concerned. It seems that the child, Tyra, was friendly with several of the dogs at the Wilson property. Ms Fogden said that Tyra had never seen Tika and Squizzy (a dog not present at the time of the attack) act aggressively towards the child or, for that matter, any other person.

100 There were no further instances of aggressive behaviour until 2006. Mrs Hollicks' statement shows that when she walked past the Wilson home, two of the dogs came out of the premises and walked around her in a circle as she continued to walk along Garden Avenue. It is doubtful whether this description would qualify as an act of threatening to attack or chasing. The matter was reported to Council, and Mr Langby, as the evidence shows, visited Mr Wilson about the incident.

101 Mrs Kelly's description of two tan Boxers "breathing and growling and following" her to her daughter's house again would not necessarily answer the description of threatening to attack or chasing. There was no complaint to the Council on this occasion and the particular dogs were not identified.

102 The final incident related to Mrs Clark finding one of the dogs on her verandah. Once again, it is equivocal as to whether the dog's behaviour would answer the description of "threatening to attack". It ran away when confronted by Mr Clark. Mrs Clark's description that "it scared me as much as I scared it" and that then the dog "growled" at her did not necessarily amount to a threatened attack. This incident was reported to the Council and the Council officers, it seems, attended on Mr Wilson after the report. It also appears clear from Mrs Clark's evidence that the dog was Tika, Mr Wilson's daughter's pet. This dog was not involved in the attack on Tyra.

103 Thus, from this brief analysis, it will be seen that there were three arguable incidents in 2006 that may have qualified, although only two were reported to the Council under the section. There were no incidents in 2005. In 2004 there was the one incident involving Mr Kuehne's children being chased. It clearly qualified but there was no repetition of it in that year. There were no incidents in 2003. There was one incident in 2002 involving Mrs Moy, but this was not reported to Council and she was clearly mistaken in identifying the attacking dog as Target. Between 2000 and 2002 there were two, possibly three, incidents. If the analysis is confined to the period between 2004 and 2006, there was, on one view of it, only the one incident involving Mr Kuehne's children that definitely answered the statutory definition. Taking an expansive view of the evidence, there were possibly three further incidents known to the Council in the three year period between 2004-2006, including one "chasing" incident.

104 I would conclude, based on the evidence I have recited, that the respondents have failed to make out a case that justified the making of a declaration on the basis that a number of the dogs present at the time when Tyra was attacked had, between 2004 and 2006, without provocation, repeatedly threatened to attack or repeatedly chased people.

105 The respondents' written submissions referred to general findings made by the primary judge that, it was argued, suggested a justification for a declaration on the alternative basis. These included statements suggesting that the dogs were "roaming the streets", that they were "not properly secured", that Mr Wilson's property did not have "a child-proof fence", that the dogs were "untethered in the front yard", and that there were "many incidents with the dogs". As I have said, quite apart from the difficulties of identification, these findings really did not address the issue. They were, at best, findings related to the dogs being a nuisance in the neighbourhood.

106 Similarly, the written submissions made reference to the various entries in Mrs Todhunter's notes and the diary entries that were tendered as the remainder of Mr Langby's notes. None of this material added to the evidence I have already analysed. There was also evidence from William James Langby Senior. He was the father of Mr Langby the Council ranger. He was scarcely a satisfactory witness, as he himself acknowledged. He had a number of serious health problems, which he described, and said (Black 158 L-M):

"It's brought me undone, can't remember a bloody thing."

He was asked to do the best he could. He said:

"Well I can, all I can say is I can recollect that I lived one vacant block, one road away from where the little girl got killed. And I can't say what the dog yard was like, I've never been inside the yard. But he used to - and I also realise that what I say it [sic] an ounce of difference to what you fellows do or not because I know it's going to come out in the wash where - some way it's got to come out in the wash. And I think the dog was - belonged to the young fellow which killed the kid or the kid had died from a heart attack or whatever, died from scared to death or petrified or something [sic]. But if a dog can get out, a kid can get in and a dog can get out. And we, we lived as I said lived in and we had a fence around our yard and the dogs used to come to our place, jump over the fence, scare hell of my wife [sic]. And that's probably the only ...

Q: How often did that occur:

A: Not very often but it happened.

Q: What dogs are you referring to?

A: Oh well he had about 20 of them so which one would you pick?

...

Q: So when you observed these incidents of the dogs from the Wilson's property being out and on occasions jumping your fence what did you do?

A: I just - all I did was just walk outside and the dog would just shot through again. But dog - the dog was very, very, very - oh I don't know you - timid I suppose in a lot of ways but you just - that's the dog."

107 Mr Langby Snr said he reported "it all" to the shire a couple of times. He added:

"Young Bill said 'We can't do anything about it - 'cause it was his to [sic] - problem. The Shire wouldn't do anything about it and everything."

108 Mr Langby Snr said he could not remember when he had made any such report but said he always spoke to Mr Wielinga, the general manager of the shire. He added that he thought he'd probably rung two or three times but "sometimes it was over a tree and the kids in the school bus and sometimes it's over dogs": Black 160 D-F. The witness also complained that the dogs were "messing up" his lawn.

109 I do not consider that Mr Langby Snr's evidence has any real significance for the matters raised by the Notice of Contention. It is a very slender reed on which to base any finding of substance.

110 Mr Sheldon raised another argument in the context of the Notice of Contention. He argued that, as Mr Clark's evidence showed, potential witnesses were occasionally unwilling to be involved in any court proceedings that might follow from the Council's declaration of a dog as a dangerous dog. Mr Sheldon argued that this type of attitude "hamstrung the Council". I do not think there is any merit in Mr Sheldon's argument. If there was evidence that warranted the making of a declaration, it would have been the duty of the Council to proceed to do so, even if potential witnesses were reluctant to appear at a subsequent court hearing. The recalcitrance of a potential witness would be no justification for failing to make a declaration if it were otherwise clearly warranted.

111 If I be wrong in my conclusion that there was insufficient evidence to justify the Council making a declaration on the alternative basis, I would nevertheless find that s 43A Civil Liability Act stood fairly and squarely in the way of the respondents' action succeeding. I will now turn to address this matter.

The impact of s 43A Civil Liability Act 2002 (NSW)

112 Section 43A is in the following terms:

"Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority's exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A special statutory power is a power:

(a) that is conferred by or under a statute, and

(b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44."

113 It was accepted by the parties that s 43A had application to the case mounted by the respondents. There was no argument, for example, that the power to make a declaration under s 33 was not a "special statutory power". In view of the common approach of the parties, I would accept for the purposes of the present discussion that s 43A applied to the proceedings on the basis that s 43A was capable of defeating the respondents' action against the Council:

"... unless the ... omission [to make the declaration] was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the ... omission to be a reasonable ... failure to exercise, its power."

114 Again, it was commonly accepted on the appeal that the power given by s 33 was one "to prohibit or regulate an activity" as described in s 44.

115 Mr Sheldon argued that the section requires much more than that a Council acting reasonably would, in all the circumstances, have declared a dog or the dogs dangerous. He referred to the decision of this Court in Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW; Kelly v Roads and Traffic Authority of NSW [2010] NSWCA 328. Essentially, the appellant argued that the primary judge did not give adequate reasons for concluding that the s 43A test had been satisfied and had, in effect, replaced the test with a wrong test that "the appellant's failure to take reasonable care was so gross as to be at a very high level". The respondents, on the other hand, argued that the failure of the Council in the present matter to exercise its power to make a declaration was "so devoid of plausible justification that no reasonable body of persons could have reached it" (Bromley London Borough City Council v Greater London Council [1983] 1 AC 768 at 721) and "so outrageous in its defiance of accepted moral standards that no sensible person who applied his mind to the question could have arrived at it": Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 410.

The primary judge's decision on s 43A

116 His Honour's findings were briefly stated (Red 76 E-P):

"A finding that reasonableness is at a high level is not easily made. I do, however, think that I can make that finding in these cases. The defendant, over a number of years, had received complaints about the Wilson's dogs. The defendant had the power to do something about them. The defendant had apparently reached a conclusion that nothing would be done about the dogs (evidence of Mr Langby Senior). This attitude existed notwithstanding that no attempt had ever been made to control Mr Wilson and his dogs through a declaration under Section 34 of the CAA. The possibility of very serious harm being caused by these dogs, whether in the backyard at Number 29 Garden Avenue, or as they freely roamed the local streets, was evident. These dogs were trained hunting machines.

Against this background it is my view that the Council's failure to act was unreasonableness at a high level. I am satisfied that the circumstances were such that the Council's failure to act was 'so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise its power.'"

117 In reaching these conclusions, as I stated at the outset of these reasons, the primary judge placed reliance on two recent decisions of this Court: Allianz Australia Insurance Ltd v Roads and Traffic Authority of NSW; Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd. Each of these decisions (especially the latter) has carefully examined s 43A and determined its scope. The arguments in the present case do not require me to re-examine the established jurisprudence emerging from these decisions. The following propositions, however, may be deemed appropriate for the determination of the issue in this appeal:

(1) The language of s 43A states a precondition for the existence of civil liability in the context with which it is concerned. Once it is found or assumed, by reference to the pre-existing common law of negligence, that a duty of care exists and there has been a failure to exercise reasonable care, s 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established.

(2) The origin and legislative history of s 43A make it plain that language modelled on that of Wednesbury unreasonableness was adopted from Associated Provincial Picture Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223) with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power.

(3) Notwithstanding the difficulty of transposing the concept of Wednesbury unreasonableness, derived as it is from administrative law, to the law of negligence, the concept now has statutory force in s 43 and s 43A and is to be applied to an authority's act or omission.

(4) The words "could properly consider" require a determination to be made from the perspective of the authority, but with an objective element. (As I see it, the objective element is particularly important in examining an allegation that the Council has negligently failed to exercise a power available to it.)

(5) Although the concept of Wednesbury unreasonableness has been expressed in varying terms, some extreme, some more moderate, its transposition into the law of civil liability requires that the unreasonableness must be at a high level. The language of s 43A ("could properly consider" with the restraint of "could" moderated by "properly") necessarily requires questions of degree and judgment.

118 Does the primary judge's reasoning reveal error? With respect, I think it does. His Honour's remarks are brief but I do not think that the proposition that he has failed to give reasons can be sustained. It is the reasons, however, which reveal the error.

119 It is true that the Council had, as his Honour said, received complaints over a number of years about the Wilsons' dogs. But, in the main, these were complaints about the dogs being a nuisance, e.g. barking, roaming the streets or polluting lawns, etc. Complaints of that nature did not require the Council to make a dangerous dog declaration. They did not require the Council to consider s 33 and s 34 at all. In so far as his Honour purports to rely on the evidence of Mr Langby Snr, I am of the view that no real weight could be attached to it. It certainly could not be taken from that imprecise piece of evidence that there had been some decision made by the Council, even at ranger level, that, notwithstanding anything that might happen, there would be "nothing done about the dogs".

120 Nor, with respect, am I able to agree that the evidence established "the possibility of very serious harm being caused by these dogs". It seems that Mr Wilson owned many dogs over the years and, although they often roamed the local streets without adequate control from their owner, with one or two exceptions, they had not harmed anyone. At best, they were a nuisance, sometimes a considerable one. The statement that "these dogs were trained hunting machines" is highly emotive and overlooks the fact that they were trained to hunt pigs not humans.

121 With every respect to his Honour, I consider that his Honour's considerations on this point reflect a fair degree of hindsight reasoning arising from the tragic and terrible consequences for Tyra that ensued after she had wandered into the Wilsons' backyard in 2006. The Act was amended in a number of respects as a response to this tragic death. One of those amendments was to proscribe "hunting dogs" as dangerous dogs. That was not the situation that existed prior to July 2006. It is inescapable, it seems to me, that his Honour has been influenced by the tragic death of Tyra and perhaps by the new legislation in reaching the conclusion that these were "trained hunting machines".

122 It is necessary for me, on this rehearing, to form my own view as to whether s 43A precluded liability. The respondents' case is that, on the basis of the Council's knowledge (through its officers), it was bound to make a declaration that the dogs at the Wilson premises on 19 July 2006 were dangerous. Further, that the Council, owing as it did a duty of care to the respondents, negligently failed to make such a declaration thus causing the damage complained of in the proceedings. The primary judge made a finding, at the behest of the respondents, that the Council had been bound to make a declaration that the dogs were dangerous on the basis that they were pig hunting dogs, and that this was known to the Council.

123 A second basis has been propounded in this appeal, as an alternative, namely that Council was bound to make a declaration on the basis that the dogs had repeatedly threatened to attack or had repeatedly chased people.

124 I have thus far concluded that the Council could not have made the declaration, sustainable in law, that the dogs were dangerous on the basis that they, without provocation, had attacked or killed animals, namely pigs. Such a declaration could not have been made because the dogs were trained to do precisely what they did and consequently their actions could not be described as "without provocation".

125 In relation to the alternative basis, I have concluded that the complaints about the dogs (at least about any of those present at Mr Wilson's premises when Tyra was attacked) fell into two categories. First, they were complaints relating to the dogs barking, roaming the streets and generally being a nuisance. Complaints in that category could not have warranted the making of declaration on the basis of the alternative stated in the Notice of Contention. Secondly, there were complaints about "aggressive behaviour". Although arguments could be advanced against the conclusions I have reached, the better view, in my opinion, is that those incidents did not constitute activity that fell within the phrase "repeatedly threatening to attack or repeatedly chasing" people. Consequently, I have concluded that a declaration could not have been made lawfully on the second basis.

126 For the purposes of my finding on s 43A, I will assume that the Council owed a duty of care to the respondents as alleged. I will assume, contrary to the findings I have made above, that the "aggressive behaviour" of the dogs was sufficient to warrant a declaration being made on the alternative basis. In other words, I will assume, contrary to my own findings, that the few instances between 2004 and 2006 when the dogs (which may or may not have been the same dogs at the premises in July 2006) chased people, growled at them or encircled them, answer the description of "repeatedly threatening to attack or repeatedly chasing".

127 Given that the Council knew of some of those complaints, does it follow that Council's failure to have a declaration made that the dogs were dangerous was so unreasonable, in the sense provided for in s 43A, that liability should be imposed? Putting the question in the statutory context, could an authority having the statutory power in question properly consider the omission to make the declaration an unreasonable failure to exercise its power?

128 In my opinion, the answer to these questions must very prominently favour the Council in the present case. The sporadic and infrequent nature of the complaints could have been reasonably dealt with, as they in fact were, by approaches being made to Mr Wilson and fines being issued to him on occasions when his dogs were roaming the streets. To the extent that it could be argued that the Council had failed to act reasonably in seeking a declaration in respect of any of the dogs prior to July 2006, that failure could not, in my view, be said to be based on unreasonableness "of an order sufficient to attract liability under the statute".

129 Similarly, in relation to the primary argument that the declaration should have been made on the basis that the dogs were pig hunting dogs, the same conclusion must be reached. They were not, to use the expression discredited somewhat in RTA v Dederer ((2007) 234 CLR 330), "an accident waiting to happen". Yes, there had been several aggressive incidents, but I doubt whether anybody in the local community, including officers of the Council, had any real anticipation of the tragic events of 19 July 2006. If I be wrong in my conclusion that the dogs at Mr Wilson's property were dogs which had attacked animals, but only with provocation, I would nevertheless hold that the failure of the Council to obtain a declaration on that basis, if it were unreasonable, was not unreasonableness of a high order. For these reasons, in either situation, liability should not be imposed.

Duty of care

130 The findings I have made have proceeded on the assumption that a duty of care existed as between the Council and Tyra, and hence between the Council and the respondents. Of course, if no such duty existed, then the respondents must fail on that threshold basis and the question of breach is immaterial. Because of the findings I have made, it is, on one view, unnecessary to consider this complex question. However, the parties are at issue on the point and consequently it is necessary that I address it. For practical reasons, I will do so briefly.

131 The respondents' case was not one of breach of statutory duty. Rather, their case was simply a claim for damages for injury caused by negligence. The duty asserted in this case was a common law duty of care. The negligence, however, was said to be that of a body in which was reposed the statutory power to declare that a dog or a group of dogs was dangerous. This may properly be described as a novel claim falling outside the accepted range of relationships giving rise to a duty of care, such as employer and employee, teacher and pupil, carrier and passenger, etc.

132 The law has in recent times grappled with the problem of ascertaining whether a duty of care arises in such cases. This is especially so in a case where a person has been harmed, arguably as a consequence of a failure by a person or body to exercise an available statutory power. In such a case, the existence and nature of the statutory power is central to the resolution of the problem. As Gummow J pointed out in Pyrenees Shire Council v Day ([1998] HCA 3; 192 CLR 330) at [126]:

"Some of these distinctions and doctrines are entrenched in the common law of Australia, others are not. All of them ... tend to distract attention from the primary requirement of analysis of any legislation which is in point and of the positions occupied by the parties on the facts as found at trial. This analysis is of particular importance where ... the facts do not fall into one of the classes ... already recognised by the authorities as attracting a duty of care, the scope of which is settled."

133 Several years later, in Brodie v Singleton Shire Council ([2001] HCA 29, 206 CLR 512), the plurality (Gaudron, McHugh and Gummow JJ, at [102]) said:

"Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance."

134 In more recent times, the High Court has re-addressed these difficult issues and has re-emphasised the matters which have to be examined. In Stuart v Kirkland-Veenstra ([2009] HCA 15, 237 CLR 215), the High Court warned of examining the issue from the wrong perspective. At [103], the plurality (Gummow, Hayne and Heydon JJ) pointed out that whether the asserted duty exists is not determined by whether the conditions for exercise of the statutory power were shown to have existed in a particular case. The existence of facts satisfying those conditions, their Honours pointed out, would, however, be a central part of the inquiry about breach. Their Honours added:

"Rather, in deciding whether the officers owed the asserted duty it is necessary to consider what is the duty which it is said is owed by those who have a specific statutory power, and how is that duty said to arise out of the 'relationship' created by the existence of that power. Both the specificity of the duty and the nature of the alleged 'relationship' require further examination."

135 In that context the plurality noted that, while power is a necessary condition of liability, it is not a sufficient condition. The mere fact that there is a statutory power to act in a particular way, coupled with the fact, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. At [112], the plurality said:

"Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority ... 'turns on a close examination of the terms, scope and purpose of the relevant statutory regime'. Does that regime erect or facilitate 'a relationship between the authority ... and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence'?"

136 The factors that their Honours stressed in evaluating the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed were:

i) the degree and nature of control exercised over the risk of harm that has eventuated;

ii) the degree of vulnerability of those who depend on the proper exercise of the relevant power;

iii) the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute.

137 Their Honours emphasised that often it will be "the factor of control that is of critical significance".

138 In Stuart, the joint judgment of Crennan and Kiefel JJ emphasises the "measure of control" point. At [136] their Honours said:

"The measure of control which may be provided by a statute, with respect to the safety of persons or property, has been considered to be indicative of a duty of care."

And again at [138] their Honours said:

"Questions about the degree of a public authority's control over the risks to which a plaintiff was exposed will usually be answered by reference to the statute providing for those measures. Where a statute provides significant and special measures, which may be seen to be directed towards the risk of harm to a class of persons or property, attention is directed to the purpose for which the measures have been provided. If part of the rationale for excepting a public authority from the general rule of the common law, that no affirmative action is required, is the availability of statutory powers, their purpose must necessarily be considered."

139 Applying these principles to this case, I am prepared to accept that, upon the proper construction of the Companion Animals Act, significant and special measures have been created which may properly be regarded as directed towards the risk of harm to a class of persons or property, such as the respondents and their daughter in the present matter. The position here is quite different from that in Stuart's case where the element of "control" rested solely with the unfortunate Mr Veenstra, who had determined to take his own life. The other point of difference in that case was that the legislation in question fastened upon the opinion formed by the police officers. They clearly had taken the view that Mr Veenstra was not a mentally ill person and, accordingly, did not require apprehension.

140 When regard is had to the terms, scope and purpose of the Companion Animals Act it may properly be said, in my opinion, that the relevant statutory regime erected a relationship between the Council and that class of persons to whom the respondents belong. That relationship may properly be said to demonstrate sufficient of the necessary characteristics for intervention by the tort of negligence. In that regard, the degree of control given to the Council is a highly significant matter.

141 The objects of the Act are stated in s 3:

"To provide for the effective and responsible ... management of companion animals."

Section 6A, however, more precisely provides that the general duties of Councils include:

"To take such steps as are appropriate to ensure that it is notified or otherwise made aware of the existence of all dangerous and restricted dogs ... that are ordinarily kept within its area."

142 All animals are required to be identified and registered. s 8, s 9, s 10. The owner of an unregistered companion animal is guilty of an offence if the animal is in a place other than where it is ordinarily kept: s 10A. The owner is required to notify of changes, including whether a declaration has been made by a Court that a dog is dangerous: s 11.

143 Part 3 of the Act deals with responsibilities for the control of dogs. Where a dog is in a public place but not under the effective control of a competent person by means of chain, cord or leash, the owner of the dog may be prosecuted for an offence and, where the owner is present, the dog can be seized by an authorised officer if the contravention continues: s 13. Dogs are prohibited in certain public areas (s 14) and greyhounds and other breeds are to be muzzled: s 15. If a dog rushes at, attacks, bites or chases any person or animal, the owner is guilty of an offence. If a dog attacks or bites any person or animal, an authorised officer may seize the dog in certain circumstances: s 18. Dogs may be declared to be "nuisance dogs" and Council officers may issue an order to the owner of a dog requiring the owner to prevent the behaviour that is alleged constitute the nuisance: s 21.

144 More relevantly, an owner of a dangerous dog who fails to comply with the Act may be, in certain circumstances, permanently disqualified from owning a dog and from being in charge of a dog in a public place: s 23. An obligation falls on a Council to declare a dog as dangerous, if it is satisfied that a dog is dangerous: s 34. The definition of "dangerous" is an objective one, dependent upon specified circumstances: s 33. Where notice is given to the owner of a dog that there is an intention on the part of the Council to declare it dangerous, the owner must ensure that, when the dog is away from the property where it is ordinarily kept, it is under effective control of a competent person by means of an adequate chain, cord or leash, and that it has a muzzle securely fixed on its mouth to prevent it from biting any person or animal: s 36. If this section is contravened, the dog may be seized. Where a dog is declared dangerous, the onerous restrictions imposed by s 51 apply. The owner of a dangerous dog must, inter alia, keep the dog in an enclosure where the dog is ordinarily kept and, when it is outside its enclosure, it must be both controlled by a competent person and muzzled. If any of the requirements of s 51 are not complied with, the dangerous dog may be seized by a Council officer: s 52.

145 It will be seen from these matters that there is a very high degree of control and that it is vested in the local council. The power to declare a dog dangerous is exercisable upon the existence of objective facts. This is to be contrasted with the subjective situation referred to in Stuart.

146 Moreover, the level of vulnerability in the present case of Tyra, her family (and other residents of Garden Avenue) is plainly obvious. If there had been credible material before the Council to warrant the making of a declaration, it is clear that its failure to do so would throw up a real concern for the safety of persons likely to be affected by reason of that failure. It may properly be said that the legislation provided the Council with the power to control the source of the risk of harm that would likely flow to people in the vulnerable position of the respondents and other nearby residents. That power was not available to the class of persons of which the respondents were members, nor was it available to members of the public generally. Although reliance may not presently be seen as significant as the other matters referred to by the plurality in Stuart, it may properly be said that the respondents belonged to a class which, of necessity, relied upon the Council as the principal repository of powers under the Companion Animals Act to protect them by controlling the Wilsons and their dogs.

147 I would hold that the primary judge was not in error in finding that, at the appropriate level of abstraction, there was a duty of care, and in recognising that the scope of that duty extended to the circumstances of the case sought to be made by the respondents. This duty was not inconsistent with the terms, scope and purpose of the relevant statute.

148 Similarly, I would not be prepared to find that the primary judge was in error in relation to the conclusion he reached concerning s 44 of the Civil Liability Act. The primary judge dealt with this issue at 63-66. Essentially, his Honour held that the respondents would have had standing so as to bring proceedings under s 65 Supreme Court Act to obtain an order forcing the Council to issue a declaration under s 34 Companion Animals Act. At Red 66, his Honour said:

"In my view Mr Kuehne, either living in Garden Avenue, or as the parent of children living there, and Dylan, as a resident of Garden Avenue, did have an interest substantially greater than the public at large. The family living in Garden Avenue would in my opinion have personally benefited from the making of an order under Section 34 to the extent that it would have potentially prevented a significant threat to their safety and, even at a lower scale, to their capacity to pursue their lives without harassment from the Wilson dogs."

149 Section 44(1) of the Civil Liability Act 2002 (NSW) is in the following terms:

"When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff."

150 Mr Sheldon argued that the respondents had not satisfied s 44 because they could not demonstrate that any action they might have brought under s 65 Supreme Court Act would have been successful. In my opinion, s 44 is concerned with the issue of standing, rather than the issue as to whether a particular plaintiff would succeed on the merits in proceedings instituted alleging failure of an authority to exercise or to consider exercising a function to prohibit or regulate an activity.

151 In the present matter, Mr Kuehne and his family had complained to the Council about the children being chased by the Wilson dogs. If they were not satisfied with the Council's action and considered that proceedings should be taken in an endeavour to force the Council to at least consider taking action to regulate the dogs' activity, they would have been entitled to do so. The power of the Court in any such proceedings would have been sufficiently wide, even if it took the view that the Council should not be forced to act under s 34, that it might be required, nonetheless, to take action of a lesser kind, for example declaring the dogs a nuisance.

152 In any event, I consider that no error has been demonstrated in relation to the primary judge's finding on this point.

153 The appellant also challenged the primary judge's findings on causation (s 5D Civil Liability Act) and breach (s 5B Civil Liability Act). In view of my conclusions on the breach issue, I do not think it is necessary to respond to those submissions.

154 The final matter relied on by the appellant was an allegation that it had been denied procedural fairness. This assertion was the basis for appeal grounds 1 and 7. The appellant's complaint arose out of the rather unusual feature that Mr Wilson was called by the respondents. Part of his evidence was that four of the dogs were brought back to his property only approximately a fortnight before the attack on Tyra. It will be recalled that he said that he had brought them back because there had been a theft of some of his dogs from the location out of town where all the dogs were normally kept. It was his claim that only two dogs habitually resided at the Garden Avenue premises.

155 Mr Sheldon's complaint is that, although the primary judge did not accept this part of Mr Wilson's evidence, he had not indicated to the appellant that he would reject any part of the witness's evidence. Hence, it was said there had been procedural unfairness and the appellant had been deprived of the advantage of one of its arguments, that reflected in appeal ground 7, without the opportunity of appraising the finding.

156 There were two aspects of Mr Wilson's evidence that the primary judge rejected that were not the subject of any complaint from Mr Sheldon. They were each a matter which his Honour was perfectly entitled to disbelieve. At Black 179 T-W, Mr Wilson claimed that his dogs "never roamed the street". That was clearly contrary to the evidence of a number of people, including the Council officers.

157 Secondly, Mr Wilson denied having a number of dealings with Mr Langby about complaints concerning the dogs "being out and about": Black 180 DK. Again, in view of the competing evidence, the primary judge was perfectly entitled to reject this denial. It must have been obvious, to say the least, that Mr Wilson's evidence was, in a number of respects, highly suspect.

158 The third matter was the one that Mr Sheldon complains of in this appeal. At Black 178 R-X, the following evidence was given by Mr Wilson:

"The truth of the matter is those six dogs - well four of those dogs, I kept out the road and I had my dogs stolen from out in the stock route behind the dog pound at Warren where I kept those dogs and I brought those dogs into town in fear that they'd come back and steal those - that was Ouzo was out there, Target and - what's the other one - Ouzo, Target and Cage."

159 However, Mr Wilson also said that he brought those dogs into town "from time to time". They were with him at his Warren address if he went pig hunting. They would be with him "early in the morning" and they would be "back there late at night" after the pig hunting had finished. On the basis of this evidence, it is clear the Council could not maintain an argument that, save for the period of two weeks prior to the attack on Tyra, there were no dogs, with the exception of Tika and Widge, at the Wilson premises.

160 Mr Wilson was obviously a problematic witness. I think that the primary judge was perfectly entitled to doubt him on this aspect of his evidence. In any event, it is clear from his evidence that the dogs were at his property "from time to time", even if there was a lack of precision involved in that description. I can see no denial of procedural fairness in the finding made by the primary judge. Mr Wilson was not in either party's camp. The judge was not bound to accept his evidence.

161 In my opinion, there is no substance in this ground of appeal.

162 I turn now to consider the cross appeal.

The respondents' cross appeal

163 The cross appeal concerns two aspects of the judge's assessment of damages relating to the cross appellant's (Mr Kuehne) loss of capacity to provide care for his children pursuant to s 15B of the Civil Liability Act. Section 15B(2) provides as follows:

"When damages may be awarded

Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that:

(a) in the case of any dependants of the claimant of the kind referred to in paragraph (a) of the definition of dependants in subsection (1) - the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

(b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and

(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants:

(i) for at least 6 hours per week, and

(ii) for a period of at least 6 consecutive months, and

(d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances.

Note. Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant's dependants."

164 "Dependants", in relation to a claimant, are defined in s 15B(1) to mean:

"(a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises:

(i) ...

(ii) ...

(iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

(iv) any other person who is a member of the claimant's household, and

(b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time."

165 Mr Kuehne argues that the primary judge fell into error in two respects in relation to this aspect of the claim for damages. The first relates to his finding that, prior to 20 July 2006, two of his children, Joshua and Dylan, "were receiving services from another person" and that they could not "therefore be classified as a kind of dependant or fitting into a class of dependant": Red 88 S-V. His Honour found that, immediately before Tyra's death, Mr Kuehne was only looking after his son, Jayden, and that Joshua and Dylan were living with their mother in Warren. Consequently, Mr Kuehne was held not entitled to recover damages for any loss of his capacity to provide gratuitous domestic services to Joshua and Dylan following upon and as a consequence of his psychiatric injury.

166 The second error Mr Kuehne points to relates to the period of incapacity. The primary judge found that Mr Kuehne's "discharge from Foundation House signals the point in time when his incapacity to look after the children due to the injury would have ceased. This was on 20 July 2009, exactly three years from the death of Tyra": Red 91 T. Mr Kuehne says there was no warrant for the imposition of this time limitation.

167 If these two errors are found to have occurred, Mr Kuehne argues that his claim for damages on this basis should have been greater, in that it should have extended to gratuitous care provided for all three children and that it should have enured well into the future.

168 In relation to the first error, Mr Kuehne places reliance upon the decision of Hoeben J in Kendrick v Bluescope Steel (AIS) Pty Ltd [2007] NSWSC 1288. He argues that this decision is applicable to the present case. In those proceedings, the plaintiff was rendered a quadriplegic as a result of a collision between his vehicle and a dump truck. His injuries were catastrophic. Prior to the accident, the plaintiff had provided services of the kind in respect of which damages were being claimed for provision of gratuitous assistance required by his three children. There was no doubt that he did provide child care services in relation to two of the children, but his youngest child was not born at the time of the accident. Hoeben J said (at 310-311):

"310. This creates a potential problem for the plaintiff. The section makes no express provision for the situation where a child is born after the injury. Because the plaintiff did not provide any services for Mikayla before he was injured, a literal reading of the section would give him no entitlement to damages for services provided to Mikayla by somebody else after his injury.

311. I do not think the section should be read in that way. Section 15B(1) identifies various classes of dependants. That is why there is a reference in the preamble to subs(2)(a) of 15B to 'dependants ... of the kind'. Read in that way, it is only necessary that before injury the plaintiff provided services to that class of dependants in order for the precondition to be satisfied. As indicated, I am satisfied that he did provide such services although the services were limited in time and extent by his hours of work."

169 The decision of Hoeben J appears to have been enshrined in a later amendment represented by s 15B(1)(b), which now includes "any unborn child of the claimant" at the time the liability in respect of which the claim is made arises and who is born after that time.

170 By analogy, Mr Maiden argued that it does not matter that immediately prior to the death of Tyra, Joshua and Dylan were alive but were not living with Mr Kuehne. Counsel argued that there was evidence that Mr Kuehne had provided domestic service to all his dependants prior to the injury. Secondly, it was submitted that, some or all of the children having received services from Mr Kuehne prior to Tyra's death, all of his children therefore fell within the class "of a kind" referred to in s 15B(2)(a).

171 There is no doubt that there was evidence before the primary judge that Mr Kuehne had lived with his de facto wife and the four children between 1996 and 2004 prior to him moving back to Sydney by himself. In 2005, Tyra had stayed with him in Sydney for three and half months, up to 15 September 2005, when Jayden then came to live with him. There was evidence about some of the care, albeit somewhat limited, that he had provided to all of his children prior to Tyra's death.

172 There was evidence to show that, following the death of Tyra and the sustaining by Mr Kuehne of his psychiatric injury, the remaining children left their mother and moved to live with him. For a brief period of time the family lived with Mr Kuehne's mother in Sydney. Following that, Mr Kuehne received significant help from the Salvation Army who provided care and assistance for the children after Tyra's death. While Mr Kuehne was an in-patient in hospital, various family members looked after the children and they also assisted at many other times. Both his sister and his mother provided significant care for the children, helped clean Mr Kuehne's house, provided regular meals and other types of assistance.

173 In my opinion, the point made by Hoeben J is applicable in a situation where, as here, a father has been providing services of one kind or another for his children and then, because of a matrimonial split-up, he is, at the immediate time the claim arises, providing services only to one or more of them but not all. In any event, the evidence did establish that Mr Kuehne was providing services to all his children "before the time that the liability in respect of which the claim was made arose". The cross appeal should succeed on this point.

174 As to the second error, I do not consider that this argument has been made good. The primary judge accepted that Mr Kuehne was a man with many pre-existing problems, principally emanating from drug and alcohol abuse: Red 84 H. Nevertheless, he accepted that Mr Kuehne had developed chronic post-traumatic stress disorder and a chronic major depressive disorder, as a result of Tyra's death. He also found that Mr Kuehne was particularly vulnerable to psychiatric injury and there would have been a significant chance that he would have suffered such injury "as a result of a separate traumatic incident": Red 84 K-M.

175 His Honour said at 84 U-W:

"I am also satisfied, and this is equally relevant to the care claim, that simply raising three young boys (two of them with ADHD) would test any single parent and could be a source of significant emotional conflict. In addition, until the end of 2010, Mr Kuehne continued to use marijuana which might have affected his mental state. ...

I am satisfied, based on the plaintiff's medical material and on the evidence of his mother and sister, that the plaintiff does continue to suffer the affects of the psychiatric injury stemming from his daughter's death. I am also satisfied that with the provision of further treatment it is likely to improve so that he will return to a state where he will no doubt have many issues of anxiety and perhaps periods of depression, but they will be part of the condition that would have existed but for the injury."

176 In deciding to award Mr Kuehne a buffer for both past and future economic loss, the primary judge noted that this was "a difficult question" because his diminution in earning capacity, and its translation into economic loss, was complicated by his poor work history, his pre-existing health problems and his obligations to care for his children. Indeed, his Honour found that Mr Kuehne had reached a stage by the time of trial that his inability to work was a consequence of his having to care for his children, rather than a product of his injury: Red 86 K-N.

177 In relation to the care claim under s 15B, it was noted that the Council had submitted that he could not care for his children because he was, in any event, unable to do so without assistance. In that context his Honour said (89N):

"I think there is some force in the argument that Mr Kuehne's inability to look after the children is a product of him, with his general background, simply not being able to cope with three young boys, two of whom had been diagnosed with ADHD."

178 The resolution of this argument was that the primary judge found, in Mr Kuehne's favour, that his ability to care for his children had been seriously impaired by his psychiatric injury. However, his Honour was concerned to ascertain the length of time for which Mr Kuehne had required compensable assistance, and whether it was required for the future. This led his Honour to examine the facts that led to Mr Kuehne being present at the Nepean Hospital on 7 June 2009 where his diagnosis was "adjustment disorder, methadone dependence and pathological grief reaction". Following discharge from the Nepean Hospital, Mr Kuehne was admitted to Foundation House to deal with his methadone problem. His Honour said (at Red 91 T-V):

"I think his discharge from Foundation House signals a point in time when his incapacity to look after the children due to the injury would have ceased. This was on 20 July 2009 exactly three years from the death of Tyra."

179 Again, at Red 92 L-M, his Honour said:

"Because I do not think the link between the injury and the need for services for Jayden can be extended beyond three years I do not allow any sum for future care."

180 In my opinion, this was a finding that was open to his Honour. While it is true that aspects of Mr Kuehne's psychiatric injury were found to be likely to continue into the future, they were not such as to prevent him, on that basis, from looking after his children. The difficulties which required the assistance of other people really arose, as his Honour observed, from the innate nature of bringing up three boys, two of whom had ADHD.

181 Mr Kuehne's claim had been for thirty-eight hours per week, but it was cut down by the primary judge to ten hours on the basis that the claim could only apply to Jayden and not to Joshua and Dylan. As I have said, that restriction in damages was not warranted. However, I consider that his Honour has not erred in confining the length of the period for which the damages were to be awarded to 20 July 2009, with no allowance for the future beyond that.

182 Had the Council's appeal been unsuccessful, I would have directed the parties to bring in Short Minutes of Order to reflect the successful aspect of the cross appeal. In view of my decision that the Council's appeal must be upheld, I would simply dismiss the cross appeal.

183 The orders I propose are:

(1) Appeal allowed.

(2) Set aside judgment of Elkaim DCJ.

(3) Verdict and judgment for the appellant.

(4) Respondents to pay the appellant's costs of the proceedings and of the appeal.

(5) Respondents, if qualified, to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

(6) Cross appeal dismissed with costs.

184 SACKVILLE AJA: I have had the privilege of reading of Whealy JA's comprehensive reasons for judgment.

185 I agree with his Honour's conclusion that the appellant ("the Council") was not negligent in failing to make any declaration, pursuant to s 34 of the Companion Animals Act 1988, that one or more of Mr Wilson's dogs was or were dangerous. I agree with his Honour's reasons for reaching this conclusion.

186 I would add this comment. As Whealy JA has noted, the tragic death of Tyra can only engender great sympathy for the respondents. We were not told whether the respondents had taken action against Mr Wilson or, if so, with what result. However, the respondents' action against the Council required them to demonstrate that the Council had breached its duty of care by failing to make one or more declarations under the Companion Animals Act. As Whealy JA has explained, this Court must assess the respondents' success or failure in this regard without relying on the wisdom of hindsight and without being influenced by natural feelings of sympathy for the respondents.

187 In Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1, at 6 [12], the High Court stated that intermediate appellate Courts of Appeal should consider whether to deal with all grounds of appeal, not merely the decisive ground. Having given consideration to that question, I do not think it appropriate to express a view on the operation of s 43A of the Civil Liability Act 2002. To do so requires the making of factual assumptions for which there is no clear basis in the evidence and which cannot be stated with any clarity (cf at [126] above). Not only would consideration of s 43A involve unnecessary work, but it is difficult to see any practical utility in the exercise even if the matter were to go further.

188 I agree with Whealy JA's observations in relation to the cross appeal.

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Decision last updated: 16 April 2012