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.au
Phone: 02 6847 6600 or the ranger on 0427 042 383.
don't ever believe for a second that any form of government is there to represent the people... its' a self serving business interest that considers its balance sheet as its master.....
yet not a mention of the dogs owner
I would of thought he would have a duty of care to ensure a child couldn't walk in to the yard.
There really is a measure of insanity or unreality about some decisions made by The Authorities. If an animal is a threat to people it should be contained. If it is actively killing people it should be dispatched.
The dog owner has a duty of care and olso the council has a duty of care ensure to enforce safe practices so public is protect such dogs of (reducing risk management)
Reguardless the dog owner should be held accountable and charged accordingly.
Poor girl suffered a barbaric death. condolences.
If people want to own such breeds of dogs and train them to kill they should be held accountable.
The opinions that come out on stuff like this actually amuses me a little.
People basing their opinion on an event they have little to no knowledge on and a brief internet news article that really contains little information on the intricacies of the case. I also doubt the reporter sat in the court room for the entire trial? Now that I've said that I'll throw my bit in 
If you are willing to take the article at face value I see a scenario where the council was acting within the confines of the legislation already in place and this was proven in court on appeal. Take the emotion out of it and that is what it boils down to.
If the council were to do the 'right thing' and roll over and wear the original decision and pay out the $123,000 it sets a precedent where they become potentially responsible for all dog attacks, regardless of breed or training of the dog and whether they are declared dangerous or not. The shire has an annual revenue of just under $13 million, to make a goodwill payment of $123,000 plus legal costs is a big chunk, sure as anything their insurance wouldn't cover a goodwill payment like that.
Guaranteed there will be changes to legislation, policy and procedure from the state and local government after this and they will be looking harder to manage the risk in light of this outcome but that won't change the decision made by the court.
There is no way you can blame any one individual or organisation out of this, you kind of have to blame everyone involved to varying degrees:-
Blame the dog for chasing a small animal and biting it as trained,
Blame the owner for training it this way,
Blame the breeder for breeding the dogs,
Blame the owner for keeping five of them,
blame the owner for not securing them better than he did,
blame the owner for not closing the gate,
blame the shire for not having adequate legislation/by-laws in place to manage hunting dogs that don't yet fall into the criteria of a dangerous animal,
blame the civil libertarians who complain about nanny-states and too many laws,
blame the child's parents for not supervising her, what is a four year old doing wandering into a backyard down the street?
Blame the neighbours for only complainany about the dogs taking a crap on their lawn and not raising concerns with the owner or shire about them being hunting dogs.
Lots of people that could be blamed so why should just the council wear it?
If you do dig a little deeper the issue is far more complex than blaming the shire for not declaring a dog as dangerous (when it didn't fit the criteria to begin with).
www.theaustralian.com.au/nocookies?a=A.flavipes
www.monash.edu.au/news/show/breed-blame-game-banning-pit-bulls-wont-work
www.dogslife.com.au/dogs_life_articles?cid=9446&pid=146514
yeah Chris but you have to Weight those blame factors.....you cant just say blame the parents in the same breath as saying blame the dog owner
Chris would agree with this.
However, the blame tends to be sought from those with the deepest pockets.
This was a civil case. Not sure if there was a criminal prosecution/conviction.
Take emotion out of it & you can see that Chris is correct in what he's saying. Regardless, $120k is little consolation where a child has been killed and although would be welcomed by the bereaved parents to assist with the costs, as a 'cash' value on the child's death is an insult in my opinion.
If it were one of my kids...the pig hunter would never have to worry about tending to his dogs again.
When I was young, there used to be a bull-terrier that used to chase us on our bikes, and not in a fun way. One morning, it strayed into our neighbour's yard and attacked their kid. It scared the crap out of myself & brother who had made light of being able to jump off our bikes & up trees/fences etc. to get away from it.
The mum & dad flew out the door & once they knew their kid was ok (mum packed up & took the kid to casualty covered in bites & scratches) he walked to the owner's yard and straight past the dog owner who was busy making excuses. He calmly walked up to the dog, planted a steel-cap boot directly between the shoulder blades & killed the dog instantly...turned around & walked out.
I was about 5 at the time, but vividly remember it. There is no place in a town/city for an animal that will attack a kid. Dogs are 'bred' as pets/companions/hunters...in the case of the latter, if they stray from their target, they need to be removed.
I would of thought he would have a duty of care to ensure a child couldn't walk in to the yard.
^^^So as a four year old you weren't allowed to walk around your street? I know I was, safely as well, because I knew most of my neighbors and they me... remember this was a country town, not western Sydney
Pigs trot along, waddle around, and toddle along...
A toddler toddles along...
Both have pink skin...
Are some of you retards missing this connection... Of course a pack of pig hunting dogs are going to have a savage reaction to a young toddler on their territory. (PS - Doggie, good point)
The council is almost welcome to contest the matter on a basis of precedence, but if I was The Major, I would at the very least ensure several things happened;
1 - the family does not foot the legal bill of the council;
2 - the council makes it clear why it is contesting the case on a precedence basis, and not on the basis to inflict further suffering to the family
3 - set up some sort of benefit fund, and annual fund raising event;
4 - lessons learned, understand it could happen again;
5 - make a considerable ex-gratia payment to the family
6 - put the maximum fines on the dog owner, and retrospective fines for uncontrolled dogs, using witnesses from the community.
I still think the 2nd legal decision is morally wrong, and yes perhaps almost correct from a hard and fast legal aspect, from "a certain point of view". But the result is still completely wrong. How can a family be expected to pay the legal costs of the council? It's just plain wrong.
Simondo, you are trying to apply a moral or ethical angle to a legal issue, rarely do they work side by side in tragedies like this. There are plenty of holes in legislation that are only discovered in situations like this.
Most likely taking the case to appeal wasn't even the decision of the council, odds on their insurance company hammered the point home and they got taken along for the ride whether they liked it or not.
My current occupation forces me to have the ability to separate my feelings from highly emotive incidents exactly like this one, if I don't I simply can't do my job (and no I don't work in the legal profession ). All i have done in my posts is look at it objectively, taken what little info on the matter that was posted, done a little more research and found the issue is far more complex than first presented.
I also hope you weren't referring to me as the retard???
Yeah fair enough guys, and Chris. Point taken.
Doc summed it up very well actually!
Have a great day guys. 
Hope you get waves/wind, or at least have a good day at work.
