A man walks into a bar and sits
down next to a woman with a dog at her feet.
"Does your dog bite," he asks.
A few minutes later, the dog takes a huge chunk out of the man's leg.
"I thought you said your dog didn't bite!" he says indignantly.
"That's not my dog" says the woman.
While dogs may be man's best friend, they are rapidly becoming a very real enemy for the insurance industry. According to the Insurance Information Institute dog bites accounted for more than one-third of all homeowners' insurance liability claim dollars paid out in 2012, costing more than $489 million, with an average amount of $29,752 per claim.
In the United States, this situation has been described as reaching "epidemic" proportions and the same could be said of this country. Canada has about 10% of the population of the United States, and the Canada Safety Counsel estimates that about 460,000 Canadians are bitten by dogs each year. In addition, several recent high profile dog bite incidents have brought the issue to the forefront of insurers' minds, with some insurers going so far as to refuse to underwrite insurance for homeowners with certain dog breeds.
This paper will explore the liability exposure of an owner whose dog, unlike the one in the titular joke, does indeed bite.
2. BASES FOR LIABILITY
When a dog causes an injury to a person, liability may be imposed on the basis of the scienter doctrine - a special kind of liability related to animals, general negligence or pursuant to the Occupier's Liability Act.
The scienter doctrine was developed as, and remains, a form of strict liability. If the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.
The British Columbia Court of Appeal in Janota-Bzowska v. Lewis, B.C.J. No. 2053 stated that in order for scienter to apply, the Plaintiff (not Defendant) must show three things:
- that the Defendant was the owner or keeper of the dog;
- that the dog had manifested a propensity to cause the type of harm occasioned; and
- that the owner knew of that propensity.
Scienter has the effect of placing upon an owner who is aware of a propensity to do harm an absolute duty to prevent the dog from acting upon its propensity. However, that duty would appear to be met where the dog is properly restrained, the Plaintiff is properly warned of the hazard or interferes with the dog. [Hall v. Sorley  B.C.J. No. 1884 (BCSC)].
i. Owner or Keeper of Dog
As the joke goes, "that's not my dog". Proof of ownership of the dog is the first criterion which must be established before scienter can apply.
While it will be self-evident in most cases, ownership of the dog in question was the key issue in the recent case of Prasad v. Wepruk,2004 BCSC 578. There the Defendant claimed that his dog had died two months prior to the incident and that he did not own the dog which bit the Plaintiff. The Court, after hearing evidence from neighbours who had seen the dog on the property and the police to whom the Defendant admitted owning the dog in the immediate aftermath of the incident, found that the Defendant did own the dog.
The British Columbia Provincial Court in McLean v. Thompsons, 2009 BCPC 415, discussed the concept of a "keeper" of a dog also being liable in scienter. The Court quoted from a textbook which stated that a keeper is someone who "harbours and controls the animal, like a trainer ... or an occupier who took care of a vicious dog left on the premises by a previous tenant". [para. 39] The Court held that "keeping" therefore implies the assumption of responsibility or the acceptance of a charge or duty in respect of the dog. In that case, the owner's parents, at whose house the owner was visiting for a period of time, were held not to be "keepers".
ii. Manifested a Propensity
It is not necessary for a dog to have previously caused the specific type of harm on a previous occasion. It is enough if the owner knew that the dog had a propensity or manifested a trait to do that particular type of harm, even if it had not actually caused that particular harm.
It is obvious that a prior incident of biting will constitute a propensity; however, in some cases the conduct is not so clear. The Courts have held that the conduct of a dog which demonstrates a propensity to do harm include:
- Where a St. Bernard "was known to break free from its chain and run around town, barking, and jumping at people" it was held by the court that "(t)aken as a whole, the St. Bernard had a manifested propensity to be aggressive and to cause the type of harm occasioned here". [Ross v. Vidnes 2012 SKQB 317]
- Barking, growling and chasing mail carriers is enough to prove a propensity to bite, at least mail carriers. [Weeks v. Baloniak, 2003 BCSC 1684, overturned on other issue, 2005 BCCA 193]
- A dog coming to the limits of its leash at passersby barking and snarling was enough to establish that the dog was of a vicious nature. [Woods v. Standish, B.C.J. No. 1004 (BCSC)]
Conversely, conduct which the Courts have held does not demonstrate a propensity to do harm include:
- While embarrassing, a dog's propensity to "hump" people's legs is not an indication that the dog is a source of danger. [Taller v. Goldenshtein, 1992 CanLii 1220 (BCCA)]
- Chasing deer is not evidence of a propensity to jump up on people. [Janota-Bzowska, supra]
- Barking and appearing on occasion to tug at the leash may not be a manifestation of a vicious temperament [Lewis v. Robinson,2002 BCCA 280]
iii. The Owner Knew Of This Propensity
It is not enough to merely establish ownership and a propensity on the part of the dog to do harm. It is further necessary that the owner of the dog actually knew of this propensity. Seeing the dog actually bite someone on a prior occasion would clearly constitute knowledge. Even previously biting the owner when the owner attempted to take away a bone has constituted knowledge. [Abdolabbas v. Lonergan, B.C.J.No. 2549 (BC Prov. Court)]
As above, a dog need not have caused the specific type of harm that it inflicted on a prior occasion for the doctrine of scienter to apply. It is sufficient if, to the owner's knowledge, the dog manifested a trait to do that kind of harm.
However, proof of knowledge of a vicious propensity does not apply to animals feraenaturae; that is, animalswhich are by reason of their species normally dangerous. Animals of this class are never regarded as safe and liability attaches for the harm they may do without proof that the particular animal is savage. Wolf-dog hybrids have been held to come within this class of animal [McLean v. Thompson, 2009 BCPC 0415]. While outside the scope of this paper, not surprisingly, so too have tigers [Cowles v. Balac,2005 CanLii 2038 (Ont. S.C.)] and goats [Pittman v. Morin, 2010 NSSM 56].
iv. At the end of their leash: Limits on the scope of Scienter
One issue which has been identified recently by the courts is whether the doctrine of scienter will apply when an animal is leashed but nonetheless causes harm.
This question was raised, but not conclusively answered, in two recent court decisions.
In the Saskatchewan Queen's Bench decision of Ross v. Vidnes, 2012 SKQB 317, the Court commented that a crucial factor for liability under the doctrine of scienter is control of the dog. The Court went on to state that:
"If an animal is caged, chained, or leashed, but nevertheless manages to inflict injury on a plaintiff, it has been held, in some cases, that the doctrine of scienter is inapplicable.The doctrine of scienter has been applied only where the animal has escaped from the owner's control."
In Ross, the dog was located within the owner's home but the front door was missing the top window portion and the large St. Bernard was able to jump up, reach out and bite the plaintiff who was standing on the front porch. The court ultimately held that the "amount of control exercised over the St. Bernard within the home was inadequate, as it was able to stick its head out of the door window. The St. Bernard was not restrained within the home."
This issue was again touched upon by the New Brunswick Court of Queen's Bench in Russell v. Aventriep 2013 NBQB 134. That case involved an altercation between two dogs, one of which was on leash at the time of the incident. The incident occurred when the Plaintiff's Pomeranian ran across the road in front of its house to approach the Defendant's German Shepherd which was walking on leash with its owner. As the Court noted, "some barking ensued" and "both dogs began baring their teeth and growling at each other". While the defence was raised that the Pomeranian was the aggressor, the Court noted that if it was aggressive towards the German Shepherd this "was not an aggression rooted in the true strength and ferocity of the much smaller dog". Ultimately the Pomeranian was bitten by the German Shepherd.
The Court held that the German Shepherd had not displayed any form of aggression before the incident and accordingly did not have a propensity to act in the way that it did so as to establish either negligence or liability under scienter. However, the Court did note that the fact that the German Shepherd was leashed and being escorted by the owner raised some concerns regarding the applicability of the doctrine of scienter. The Court, having already held that the German Shepherd did not have a propensity to act in an aggressive matter, did not find it necessary to determine the issue of whether the doctrine of scienter applied given the German Shepherd was leashed.
Accordingly, this issue remains to be conclusively determined. However, it is an interesting point and one to keep in mind when considering the applicability of the scienter doctrine.
Even if the requirements of the doctrine of scienter have not been established, a Plaintiff may still recover damages by establishing negligence on the part of either the owner of the dog or the owner of the property where the injury took place.
To succeed in an action based on negligence, the Plaintiff must prove, on a balance of probabilities that:
- The owner knew, or ought to have known, that the dog was likely to create a risk of injury to third persons, including the Plaintiff; and
- The owner failed to take reasonable care to prevent such injury.
Actions in negligence may be brought for injuries caused by a dog other than by their bite. For instance, in Shelvey v. Bicknell, B.C. J. No. 1179 (BCCA), the Plaintiff was injured by being knocked over by the Defendant's Rottweiller. In Ruckheim v. Robinson, B.C.J. No. 163 (BCCA), the Defendant's dog escaped from its pen and ran out to the adjoining highway into a collision with a motorcycle being driven by the Plaintiff, causing him to be thrown off. The Courts found negligence on the part of the dog owner for allowing the dog to get loose in Ruckheim but not in Shelvey.
c. Difference between scienter and negligence:
A key difference between scienter and negligence is that once the requirements of scienter are established, liability is absolute, and the Plaintiff is not required to show breach of a standard of care. In addition, as we have seen above, to establish scienter the Plaintiff must show that the owner actually knew of the dog's propensity. The test is therefore subjective to that dog and that owner. Whereas in negligence, an objective test applies. That is, whether the owner knew or ought to have known that the dog was likely to injure the Plaintiff. [Prasad v. Wepruk, supra].
d. Occupiers' Liability:
In addition to being held liable under scienter or negligence, a Defendant may also face exposure under the Occupiers' Liability Act, R.S.B.C. 1996 c. 337, which provides that:
3 (1) An occupier of premises owes a duty to take care that in all the circumstances of the case is reasonable to see that a person, and the person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.
(2) The duty of care referred to in subsection (1) applies in relation to the
- condition of the premises,
- activities on the premises, or
- conduct of third parties on the premises.
As in negligence, in order for liability to be imposed, it must be established that the Defendants knew or ought to have known that the dog was likely to create a risk of harm to third parties, including the Plaintiff, and that the Defendants failed to take reasonable care to prevent such harm. It is not enough to merely have a dog on one's own property [Lewis v. Robinson 2001 BCSC 643] In Janota-Bzowska v. Lewis, supra,the court held that:
"An occupier cannot be liable for a sudden act of a fierce and violent nature which is altogether contrary to the usual habits of the dog in question either under the common law or the Occupiers Liability Act."
It is possible for a Defendant, who did not actually own the dog, to be found liable under the Occupiers' Liability Act for a Plaintiff's injuries. In Konkin v. Bartel, B.C.J. No. 1716 (BCSC), the Plaintiff had interceded between two fighting dogs and was bitten on her hand. The Plaintiff had been invited (among others) to the Defendant's property to spend the Labour Day weekend and had been advised by the Defendant that it would be alright to bring her dog. The other dog involved in the fight was owned by the Defendant's parents. It had a history of fighting with other male dogs and had indeed been involved in a fight the day before the Plaintiff's incident. The Court held that the Defendant, as an occupier, owed a duty to see that the Plaintiff would be reasonably safe in using the premises and had failed to do so by not ensuring that the dogs were restrained.
Conversely in the McLean case discussed above, while the owners were held to be liable under scienter by virtue of the fact that the animal was a wolf-dog hybrid, their parents, at whose house the attack occurred, were not liable under the Occupier's Liability Act, as the Court held it was not reasonably foreseeable that the wolf-dog hybrid, who had no history of aggression, would suddenly bite the Plaintiff.
3. DOES THE TYPE OF DOG MAKE A DIFFERENCE?
The type of dogs involved in the reported decisions are generally all large breeds; Bouviers (Prasad, Abdolabbas) Labrador Retrievers (Janota-Bzowska), Rottweilers (Shelvey) and assorted cross breeds. However, the Court in Shelvey v. Bicknell commented in obiter that "to attribute to the animal propensities on account of its breed alone would require a more compelling evidentiary base than is present here." This comment was referred to in Levesque v. Miko, 2001 BCPC 96, where the Court noted that the mere fact that the dog in question was a German Shepherd could not, standing alone, establish that it had a propensity for aggression and that the owners were therefore presumably aware of its disposition.
The old adage that "every dog is entitled to the first bite" generally applies under scienter, negligence or occupiers' liability. Until a dog has had its first bite, it has not demonstrated a propensity, so scienter would not apply. Further, before the first bite, such lesser damages would not be foreseeable. Therefore, neither negligence nor a breach of an occupier's duty of care would be established.
However proving such defence, and dealing with all of the other legal issues related to dog bite cases, could still be enough to put owners and their beloved pets in the doghouse.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.