Most personal injury claims are based on negligence. Essentially, the law of negligence provides that where one person fails to take reasonable care and injures another person as a result, the first person is responsible for any injuries and consequent losses suffered by the other person.
Dog bite claims are unique in that they can be based not only on negligence, but also on an old legal doctrine known as scienter. In order to successfully establish scienter, the person injured by a dog must establish that:
- The defendant was the owner of the dog;
- The dog had manifested a propensity to cause the type of harm occasioned to the injured person; and
- The defendant owner knew of that propensity.
Proving ownership of the dog is often the easy part. Establishing the second two elements if often where the difficulty lies. With respect to the second element, it is not enough for the dog to have injured other animals in the past. The dog must have injured a person in the past.
Scienter is not terribly different from negligence, and people injured by dogs almost always allege that the dog’s owner is guilty of both. To establish negligence in such cases, the injured person must prove that:
- The defendant (usually the dog’s owner, but not always) 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 defendant failed to take reasonable care to prevent such injury.
It is important to note that the injury caused by a dog does not have to be a bite. An attack of any kind is sufficient so long as the elements of scienter or negligence are established.
A recent example of such a case is Garside v. Dougan, 2022 BCSC 799. In that case, the plaintiff and defendant were friends and both had dogs that, at times, played together. On this particular occasion, the plaintiff was bit by the defendant’s dog while trying to break-up a fight between that dog and her dog. She then sued the defendant for damages on the basis of scienter and negligence.
While there were a number of background facts animating the case, the important ones salient to the Court’s decision were that:
- While the dog had a propensity for attacking other dogs, it had never manifested a propensity for attacking humans. As a result of this finding, the plaintiff was unable to satisfy the test for liability under the doctrine of scienter. However, the Court noted that this did not prevent the plaintiff from succeeding in negligence;
- The defendant had taken reasonable care to protect people such as the plaintiff from her dog, and therefore was not liable in negligence, by
- Offering to muzzle her dog in advance;
- Discussing with the plaintiff the logistics of having their dogs interact; and
- Warning the plaintiff that her dog was not secured when the former approached.
Having failed to prove that the defendant was liable based on either scienter or negligence, the Court dismissed the plaintiff’s claim.