NSW COUNCIL WINS FATAL DOG ATTACK APPEAL
By Margaret Scheikowski, AAP
Updated April 16, 2012, 5:26 pm
Relatives of a girl mauled to death in a dog attack have had their $123,836 damages award overturned after a NSW local council won its appeal.
Last year, Judge Michael Elkaim found Tyra Kuehn would not have been attacked had Warren Shire Council, in the state's central west, declared the animals dangerous.
Such a move would have required their owner, drover and pig hunter Thomas Wilson, to house the animals in a child-proof enclosure.
Describing the dogs as "trained hunting machines", the District Court judge ordered the council to pay $95,330 damages to Tyra's father, 40, and $28,506 to her brother, 12.
In July 2006, the four-year-old was mauled to death by one or more of five pig hunting dogs after she wandered into the backyard of Mr Wilson's Warren residence not far from her home.
On Monday, the NSW Court of Appeal allowed the council's challenge, set aside the judgment and ordered the Kuehns to pay the council's legal costs.
At the time, a dog was defined as dangerous if it had, without provocation, attacked or killed a person or animal; or repeatedly threatened to attack or chased a person or animal.
Justice Anthony Whealy said the council could not have made the declaration on the basis that the dogs had attacked or killed pigs without provocation.
The dogs were trained to do precisely what they did and consequently their actions would not be described as "without provocation", he said.
The council also was not justified in making the declaration on the alternative basis.
While the council received complaints over a number of years about the Wilsons' dogs, they were mainly about them being a nuisance by barking, roaming the streets or polluting lawns.
"Complaints of that nature did not require the council to make a dangerous dog declaration," Justice Whealy said.
Since Tyra's death, the relevant Act has been amended to proscribe "hunting dogs" as dangerous dogs.
"It is inescapable ... 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'," he said.
The phrase was highly emotive and "overlooks the fact that they were trained to hunt pigs, not humans", he added.
"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."
http://au.news.yahoo.com/nsw/latest/a/-/latest/13439685/nsw-council-wins-fatal-dog-attack-appeal/If I was the mayor, I would have copped that first decision, and copped it sweet... And paid up, and moved on... lessons learnt... But no, the council seems to have taken up the matter on appeal... Did I read it correctly, the dead toddlers parents now have to pay the council's legal costs? Mate, this is just plain wrong...
Warren Shire and it's Lawyers should be ashamed at themselves. (Warren Shire is out Dubbo way).
www.warren.nsw.gov.auPhone: 02 6847 6600 or the ranger on 0427 042 383.
I would of thought he would have a duty of care to ensure a child couldn't walk in to the yard.
Hope you get waves/wind, or at least have a good day at work.
