Dog Gone It! Personal Injury Claim for Dog Bite Comes up Short in BC Supreme Court

The goodfirm personal injury lawyers want to draw attention to a recent case involving a dog bite and a claim for damages at the BC Supreme Court.

In Bloski v. Chopyk 2016 BCSC 1022, a former professional ice hockey player, injured by a roving pit bull, recently brought a claim for damages against neighbors who he thought were the owner of a pit bull.

Mr. B was walking along his driveway with his 5 year old daughter and her dog when he noticed a pit bull approaching him from the direction of his neighbors property. As the dog began to give chase, Mr. B used his goalie stance to make himself as wide as possible to block the dog. Mr. B was struck on his left arm and knocked to the ground. With the assistance of a neighbor, they managed to subdue the dog. He sustained a completely ruptured left bicep tendon and severe bruising and swelling.

Mr. B brought an action against the neighbors to recover damages for the bite. The Court of Appeal of British Columbia in Bradshaw v. Stenner, 2010 BCSC 1398 has held that a dog can be found liable for an attack committed by the dog in two ways, firstly under the doctrine of scienter and for negligence.

The doctrine of Scienter has a long history in English law and establishes that where a normally harmless species perpetuates damage, the owner or keeper of the animal will not be held to be strictly liable unless they have actual awareness of its dangerous disposition. In order to be found liable under the scienter doctrine, the person claiming for damages must demonstrate to the court that the defendant was the owner 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.

Mr. B provided evidence to the court from a number of witnesses who testified that they had seen a similar looking dog in the neighbor’s backyard prior to the incident and had seen the dog tethered in the neighbor’s yard before. In their defence, the neighbors testified that they had owned two shepherd dogs, but never a pit bull. Friends and family members of the neighbors testified that they had never known the neighbors to own a pit bull.

Ultimately the court was faced with difficulty of deciding between two very different versions of events. In doing so, Mr. Justice Skolrood followed the approach taken in Overseas Investments (1986) Ltd. V. Cornwall Developments Ltd. 1993 12 Alta L.R. (3d) in firstly analyzing the witness’s story as to whether it is inherently believable on its own. If the testimony can survive that stage, it is then evaluated based on its consistency with what other witnesses have said. Lastly the court then determines which version of the events is most consistent with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable. Mr. Justice Skolrood considered this approach in conjunction with the requirement that the onus is on the plaintiff to prove his claim.

Unfortunately for Mr. B, Mr. Justice Skolrood found that Mr. B couldn’t establish on the balance of the probabilities that the neighbors actually owned the dog in question based on the discrepancies in the description of the dog from Mr. B’s witnesses and the fact that the neighbors went to the effort of challenging the ticket given to them for having an unlicensed dog based on Mr. B’s complaint. Additionally, the pit bull ran off after the incident and was not seen again. Mr. Justice Skoolrood found that these facts were inconsistent with the probability that the neighbors were the owner.

Ultimately, Mr. B failed the first part of the Scienter test. Additionally, Mr. Justice Skolrood found that Mr. B would have failed the second and third part of the test in that he couldn’t establish that the dog had the propensity to bite and cause damage, given that there had been no complaints about the dog from other neighbors and the fact that the witnesses who had observed the dog bark and growl prior to the incident were able to get it to back down by yelling. Given that he couldn’t establish that the dog had a propensity to cause harm, he also couldn’t establish that the owner, whoever they were, knew about said propensity. Mr. Justice Skolrood found the owner could also not be found to be negligent and Mr. B’s claim for damages was dismissed.

For anyone injured by a dog bite, it is very important to make all possible efforts to determine the owner of the dog. Without establishing ownership of the offending dog, a person is unlikely to be successful for a claim for their injuries.