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British Columbia Supreme Court

Prasad v. Wepruk
British Columbia, Canada
2004CarswellBC946


Case Details
Printable Version
Summary:  

Plaintiff Prasad, an elderly newpaper-deliverer, was attacked in the street by defendant owner Wepruk's usually chained guard-dog, which escaped due to a rusted chain. The court found the defendant strictly liable under the doctrine of scienter's subjective test: he knew the dog was aggressive, but kept it anyway and it harmed Prasad. He was also liable under the objective test for negligence, for not taking reasonable precautions to ensure the dog's chain was in good repair, in order to prevent foreseeable harm to others.  damages of $35,000 were awarded for Prasad's injuries and lost future earnings.



Judge Ehrcke J. delivered the opinion of the court.


Opinion of the Court:

1     In this action the plaintiff seeks damages for personal injuries suffered when he was attacked by a large Bouvier-type dog on April 28, 2002, on the street in front of the premises known as 12955 - 112B Avenue, Surrey, British Columbia. Both liability and quantum of damages are in issue. The plaintiff suffered the injuries while in the course of his employment as a newspaper carrier for "The Leader" newspaper.

2     The plaintiff made a claim to the Workers' Compensation Board of British Columbia for benefits pursuant to s. 5 of the Workers Compensation Act, R.S.B.C. 1996, c. 492. His claim was accepted, and the Board paid benefits to him and paid medical expenses on his behalf. This is a subrogated legal action brought by the Workers' Compensation Board pursuant to s. 10(6) of the Workers Compensation Act.

FACTS

3     The plaintiff is a 79-year-old man who emigrated to Canada from Fiji. He lives with his wife and stepson in Surrey, British Columbia. He speaks no English and gave his evidence through an interpreter. He has little education and cannot read or write. Prior to this incident, he was earning his living by delivering newspapers for "The Leader". He started working for that newspaper on June 1, 1994. He was responsible for delivering 118 newspapers three times a week. His average yearly earnings for making those deliveries was between $1,550 and $1,700 per year.

4     On April 28, 2002, shortly after 8:00 a.m., the plaintiff was delivering newspapers to a number of homes on 112B Avenue in Surrey. Mr. Prasad was at that time 77 years old. As he was walking down the street pulling his cart with newspapers behind him, he passed a scrapyard located at 12955 - 112B Avenue. He did not enter that property, but was merely walking past it on the street on his way to various homes to make newspaper deliveries. While on the street in front of that address, he was attacked by a Bouvier-type dog. As he described it, the dog barked, came running, and tried to attack his throat. The dog was on its hind legs. Mr. Prasad raised his arm to protect his throat, and the dog bit into his arm. Mr. Prasad fell to the ground, and the dog pulled him some distance. He testified that the dog came from the scrapyard. He said that he had never seen the dog before but had heard it on other occasions when he walked past.

5     A couple that lived two lots away from the scrapyard quickly became aware of what was happening. Mark Pickering testified that he was outside working on his truck when he saw a flash out of the corner of his eye and saw the dog jump up and attack Mr. Prasad. He said it was a vicious attack and that the dog was going for Mr. Prasad's neck. He went into his house and called 911.

6     Mr. Pickering's common law wife, Kathleen Toth, came out of the house and also saw the dog attacking Mr. Prasad. She described it as a vicious attack. Every time Mr. Prasad tried to get up the dog would knock him down again. Because of the ferocity of the attack, neither Kathleen Toth nor Mark Pickering felt able to intervene physically to prevent it. Kathleen Toth estimated that the attack lasted five to ten minutes.

7     Constable Naipaul and Constable Scully of the Surrey Detachment of the R.C.M.P. arrived shortly. Constable Naipaul was sufficiently concerned about the dog that he drew his handgun and was prepared to shoot him if necessary. He saw that the dog had blood on its chest and snout. Constable Scully also described the dog as having blood on him and said that he was aggressive and growling. He also drew his gun.

8     Within five or ten minutes, the defendant Matt Wepruk arrived at the scrapyard in his car. He had been telephoned by a neighbour. According to Constable Naipaul, when Mr. Wepruk arrived on the scene the dog became less aggressive and stayed on the property of the scrapyard. Constable Naipaul testified that Mr. Wepruk indicated to him that he was the owner of the dog. Constable Naipaul instructed him to restrain the dog as he was not on a chain or leash. Constable Naipaul described Mr. Wepruk as belligerent and less than cooperative. He said that Mr. Wepruk did not initially go to restrain the dog but rather expressed disbelief that the dog would attack anyone. Mr. Wepruk did, however, eventually grab the dog around the neck with his hand, and walked him along a grassy path towards the back of the scrapyard property, where there was a long chain secured to a heavy piece of machinery. He tied that chain around the dog's neck. Constable Naipaul described the dog as being compliant and non-aggressive while Mr. Wepruk was thus securing him.

9     Photographs were taken at the time. They show the dog in question both before and after he was secured. He clearly has blood down the front of his body and leg. In one picture taken after Mr. Wepruk had tied the chain around the dog's neck, the dog can be seen apparently rubbing his snout against Mr. Wepruk's leg while Mr. Wepruk appears to be scratching the back of the dog's neck.

10     Constable Scully gave similar evidence. He too said that the dog became calm and not aggressive when Mr. Wepruk arrived. He said Mr. Wepruk was in disbelief when Constable Scully told him what had happened. According to Constable Scully, Mr. Wepruk said that the attack could not have happened because his dog is non-violent and always chained up.

11     What happened after the dog was secured is not entirely clear. Mr. Wepruk testified that he went to a tool shed at the back of the property and lay down to rest for a couple of hours. Mr. Prasad, meanwhile, was taken to hospital by ambulance. What is unusual is that none of the witnesses was able to say what eventually happened to the dog. It seems not only that the dog disappeared, but also that the chain which had been used to secure him, and which had been attached on its other end to a heavy piece of machinery, also disappeared. Neither Mr. Wepruk nor anyone else who testified provided any explanation of what happened to the dog and the chain.

THE PLAINTIFF'S INJURIES

12     After the attack Mr. Prasad was taken to the emergency department of Surrey Memorial Hospital where he was assessed by Dr. Low and referred to Dr. Schweigel, the on-call orthopaedic surgeon. Dr. Schweigel observed multiple lacerations and puncture wounds to Mr. Prasad's right hand and right forearm. There were also multiple puncture wounds on his left hand. X-rays revealed a comminuted fracture with breaks in four or five places. Mr. Prasad underwent an operation that night under general anaesthetic. A few days later he was taken to the operating room again for further debridement or removal of dead tissue. During that process he lost a significant amount of blood and had to receive transfusions and antibiotics. Arrangements were made for home care nursing. His sutures were removed on May 10, 2002. As Mr. Prasad's fingers were painful and stiff, physiotherapy was arranged.

13     Mr. Prasad was admitted to the Guildford Physiotherapy and Hand Clinic on May 28, 2002 and was discharged after three months of intensive physiotherapy on August 28, 2002. At that time his discharge status was described as "not fit to return to work". It was found that his power to grip with his right hand was one-third that of normal. Mr. Prasad is right-handed.

14     The report of Dr. Rai, Mr. Prasad's family physician concludes as follows:

When I saw him last on June 11, 2003 he was still complaining of right wrist pain. He was not able to make his right fist completely. It appeared that his condition had plateaued and further improvement was unlikely.
 
     In summary, Mr. Prasad was a 72-year-old right hand dominant man who was quite healthy and was able to make rounds of newspaper delivery before he was attacked by a dog while delivering newspapers. He had extensive lacerations and puncture wounds to the right forearm and both hands. He also suffered a comminuted fracture of the right ulna and another undisplaced fracture of the right ulna. The fracture required an open reduction and internal fixation. The wounds required debridement a couple of times under general anesthesia. He lost so much blood in the process that he had to be transfused a couple of units of blood. Now his condition seem to have plateaued and he is still not able to make a fist with right hand and the right wrist is still painful. Taking his age into consideration, I believe Mr. Prasad is not likely to be able to work again. The pain in the wrist is likely to persist indefinitely. The removal of the hard ware is not likely to improve the situation.
 
Mr. Prasad has been my patient since April 2000. Considering his age he was quite healthy with no serious ongoing medical problems except for diet controlled diabetic and a peptic ulcer. In particular he had no problems related to arthritis.


15     The effect of these injuries was described in the testimony of the plaintiff as well as that of his wife and stepson. He is described by all as a person who was in physically good condition for his age. He was a man who enjoyed his work delivering newspapers and had no thoughts of retiring. He is now weaker physically and can neither work nor do gardening around the house. He has great difficulty picking things up as his right hand is now weak. Before the attack he was not afraid of dogs, but now he is very fearful when he hears a dog bark. He has nightmares about being attacked by a dog.

BASES OF LIABILITY

16     The plaintiff submits that there are two different bases upon which the defendant may be found liable for damages caused by the attack by the Bouvier-type dog: scienter and negligence.

17     The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence. The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis, [1997] B.C.J. No. 2053 (B.C. C.A.). In that case the Court observed at para. 9 that the owner of a dog can be found liable for an attack in two ways:

First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence. It is important to keep the two separate as they often become intertwined. They are, however, not the same.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

     The law with respect to the doctrine of scienter is relatively clear. The owner of a dog which bites another will not be liable simply for being the owner. Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied. In other words, the plaintiff (not the defendant) must establish:
 
i)   that the defendant was the owner of the dog;
 
ii)  that the dog had manifested a propensity to cause the type of harm occasioned; and
 
iii) that the owner knew of that propensity.
 
Some provinces now have legislation which modifies the common law of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

18     At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities that:

(a)  Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and
 
(b)  Holtzman failed to take reasonable care to prevent such injury. ...

19     It can be seen that there are two important differences between liability based on scienter and liability based on negligence. If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care. On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity. It thus appears that for scienter, the mental element is based on a subjective test: the plaintiff must establish that the defendant actually knew of the dog's propensity to cause the relevant type of harm. This is in contrast to liability based on negligence, where an objective test applies. That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.

OWNERSHIP

20     The primary defence offered in this case is that the defendant was not in fact the owner of the dog who attacked Mr. Prasad. This is based on the evidence of the defendant Mr. Wepruk and a number of witnesses that were called on his behalf.

21     The defendant testified that prior to the date of the attack, he had never seen the Bouvier dog chained up on his property. He did say, however, that he had a different dog that he routinely kept on that property for the purpose of scaring intruders away. That dog was named "Buddy". He was a black and white dog who looks nothing like the Bouvier that attacked Mr. Prasad. Mr. Wepruk denies ever telling the police officers that he was the owner of the Bouvier dog that attacked Mr. Prasad.

22     Mr. Wepruk testified that he used to keep the dog Buddy on his scrapyard property 24 hours a day, seven days a week. Buddy would bark and create a distraction if intruders came around. He said that his dog Buddy died mysteriously, apparently a victim of poisoning about one and one-half months before the incident in question.

23     Mr.  Wepruk introduced in evidence a photograph of a dog lying motionless on the ground in front of a doghouse. He testified that this photograph was taken one and one-half months before the attack on Mr. Prasad and was a picture of Buddy just before his death. On Mr. Wepruk's evidence, that photograph, marked as Exhibit 9, would have been taken at the beginning of March 2002. Yet the photograph shows long lush vegetation with the grass bright green and very overgrown. The wood on the doghouse has no moss or discolouration on it. This is in contrast to another photograph marked as Exhibit 8, which Mr. Wepruk described as a photograph of Buddy's doghouse taken on April 28 or 29, 2002. That photograph shows the grass short and brownish-yellow, as one would expect at the end of winter. Moreover, the wood on the doghouse is almost completely covered with green moss or algae. Judging by those features, it is difficult to accept the defendant's evidence that the photograph showing Buddy as he lay dying on the ground in front of the doghouse was really taken in early March 2002.

24     However, the defendant called other witnesses in an attempt to support his account that he was not the owner of the Bouvier dog that attacked Mr. Prasad, but was rather the owner a different dog, Buddy, who had died one and one-half months before the attack.

25     Kevin Gordon testified for the defence. He said that he used to own a black and white Springer spaniel dog which he had as a pet. However, when his daughter was born, he decided to give it to Matt Wepruk to keep on his scrapyard property. He identified that dog, Buddy, in the photographs marked as Exhibits 7 and 9. He said that someone poisoned Buddy in March 2002, and that he last saw the dog a couple of months before that. When asked when it was that he brought Buddy to Mr. Wepruk's scrapyard, he said 1997. However, as counsel for the plaintiff pointed out, that does not accord with his evidence that he gave the dog to Mr. Wepruk around the time his daughter was born. Mr. Gordon testified that his daughter is about to turn 10 years old. That means that she was born in 1994, and in that case, he must have given Buddy to the defendant in 1994 rather than 1997. Counsel for the plaintiff argues that if he is off by three years regarding the date that he gave Buddy to the defendant, then his evidence that the dog was poisoned in March 2002 may also be inaccurate.

26     Len Brill testified for the defence. He has known the defendant for 30 years. He said that he went to the defendant's property on 112B Avenue two years ago to see about getting his scrapyard up and running again. Although he did not get out of his car, he looked down the driveway and saw what he described as the defendant's dog lying in the middle of the driveway. The dog was 20 to 25 feet away from him and it did not stand up. However, he said he thought it was a black and white Border collie. When shown the photograph of Buddy marked as Exhibit 9, he said he did not know if that was the dog he had seen.

27     Diana Danyluk testified for the defence. She is a tow truck driver who has known Matt Wepruk for 33 years. She has towed many vehicles onto and off of his scrapyard. She said that she was at the defendant's scrapyard two years ago and at that time there was a black and white dog called Buddy there. She described Buddy as being mild, like a child's dog. She was shown a photograph of the Bouvier dog that attacked Mr. Prasad and said that she had never seen that dog on the defendant's property.

28     Finally, the defence called Lorne Peebles. He has known the defendant for 12 years. The defendant gave him a key to a building containing tools at the back of the scrapyard property. Mr. Peebles gave evidence about an occasion on which he had gone to that workshop in order to work on a starter motor from a motorhome. He arrived at around 7:00 to 7:30 a.m. An hour or two later, the defendant came into the workshop seeming distraught and told Mr. Peebles that there was a problem out on the street with a dog or something. The defendant then lay down on a cot in the workshop and rested for a couple of hours, after which both men left. He was shown a photograph of the Bouvier dog that attacked Mr. Prasad and said that he did not see that dog on the defendant's property that day.

29     Unfortunately, Mr. Peebles' evidence does not correspond with the other evidence in this case. If the incident that he described occurred at all, it could not have been related to the incident when Mr. Prasad was attacked. This is because Mr. Peebles said that the occasion he was talking about occurred some time before the weekend, whereas the date of the attack on Mr. Prasad, April 28, 2002, was a Sunday. As well, Mr. Peebles testified that the event he was describing occurred in October. He also testified that on this occasion the defendant was using his crutches. Although the defendant is an amputee and has an artificial leg, all of the other witnesses testified that he was not using his crutches on the date that Mr. Prasad was attacked. In light of these inconsistencies I must conclude that the event described by Mr. Peebles, if it occurred at all, did not take place on April 28, 2002, and has no relevance to the case at bar.

30     On the other side of the ledger there is substantial evidence that the defendant was indeed the owner of the Bouvier dog. First, there are the photographs to which I have already referred that were taken at the time of the attack on Mr. Prasad. These show the Bouvier dog nuzzling the defendant's leg while the defendant scratches his neck. Both the dog and the defendant appear to be acting towards one another in the manner one would expect if the defendant was indeed the dog's owner. This is also consistent with the evidence of the police officers that the Bouvier dog, which had been so aggressive that both officers felt the need to draw their firearms, calmed down as soon as the defendant arrived. The defendant was able to secure the dog to a chain without difficulty.

31     Next there is the fact that the defendant told the police he was the owner of the dog. I do not accept the defendant's testimony that if he said this at all, what he meant was that he owned the scrapyard. Equally significant is the fact that when he arrived on the scene, the defendant expressed disbelief that his dog would have attacked any one. He told the police that his dog was calm and was always kept chained. When he said this to the police, the defendant could not have been referring to the black and white dog Buddy, because on his own evidence, that dog had been dead for one and one-half months.

32     Finally, people who lived on the same street as the scrapyard had seen the Bouvier dog on the scrapyard property of the defendant in the weeks and months prior to the attack on Mr. Prasad. The defendant argues that the dog they saw or heard barking must have been his dog Buddy, but that is simply inconsistent with the evidence. Ms. Toth and Mr. Pickering were shown photographs of the respective dogs and were quite clear in their evidence that the dog that had been living on the defendant's property in those preceding weeks and months was the Bouvier dog that attacked Mr. Prasad. Interestingly, both Ms. Toth and Mr. Pickering had given the dog who lived on Mr. Wepruk's scrapyard the nickname "Boo" because the dog looked like a Bouvier. If the dog that they had seen was the dog Buddy, there would have been no reason for them to adopt that nickname, as Buddy neither was a Bouvier nor looked anything like the Bouvier that attacked Mr. Prasad.

33     On all of the evidence I am satisfied that the defendant was the owner of the Bouvier dog that attacked Mr. Prasad and that he had kept that dog chained up on his scrapyard property 24 hours a day, seven days a week for at least several months prior to April 28, 2002 when Mr. Prasad was attacked. I am also satisfied that the reason he kept that dog on his property was to discourage intruders.

KNOWLEDGE OF THE DOG'S PROPENSITY FOR VIOLENCE

34     The best evidence of the Bouvier dog's propensity for violence, and of the defendant's knowledge of that propensity, is the testimony of the neighbours who lived near the scrapyard. Kathleen Toth testified that she had seen the Bouvier dog on the scrapyard property in the weeks and months prior to the attack. The first time she saw the dog was on an occasion when she walking her son to pre-school. The dog barked, and she was scared until she saw that the dog was on a chain. She testified that she never went onto the scrapyard property out of fear of the dog. She felt intimidated by it and would walk on the far side of the road when going past the defendant's property. She said the dog would let her know whenever she walked by. The dog would snarl and had a cold stare. Ms. Toth testified that although the defendant did not live on the scrapyard property, he came onto it on a regular basis while the dog was there, and she believed he was looking after it and bringing it food. She said the dog was kept on the scrapyard property 24 hours a day, seven days a week. The property was not fenced. She said the Bouvier dog did not act like a family pet. It was snarling and vicious. She said it was her impression that the defendant kept the dog on the property to keep squatters and drug users away. She said now that the dog is gone, those kinds of people come more frequently to the area.

35     Mark Pickering, gave a similar account. He said the Bouvier dog was always kept chained on the property, and the day of the attack was the only time he had ever seen the dog off the chain. He testified that he was concerned about the dog and would never approach it. He said that when he and Ms. Toth were checking out their home to rent, the dog was barking and growling, sitting in front of his dog house. Like Ms. Toth, Mr. Pickering saw the defendant come by regularly to feed the dog, but he never got the impression that the dog was a family pet.

36     Richard Seltitz was another neighbour who testified about the dog's vicious character. He said that he tried to avoid going past the scrapyard, but on previous occasions when he did walk by, the dog barked, snarled, and pulled at the end of his chain. He said that people in the area had warned him about that dog. He described the dog's character in the following colourful language: he said the dog was "balls to the ground vicious." He testified that the day of the attack was the only time he had seen that dog off the chain. He testified that if he had ever seen the dog off the chain, he would have run to his house for fear of the dog attacking him.

37     The evidence of the police officers is also relevant to the issue of the dog's propensity for violence and the defendant's knowledge of that propensity. Constable Naipaul testified that he is familiar with the neighbourhood in question. He said that property damage and theft are common as well as drug abuse. Constable Naipaul testified that on the day of the attack, the defendant told him he kept the dog on the yard to protect it from people trying to steal scrap metal from the yard.

38     Constable Scully also testified the defendant told him that he had had thefts from the property. Constable Scully's impression was that the dog was kept there to keep people out of the scrapyard. He testified that he had been a police officer for seven years and has seen other dog attacks, but the injuries inflicted by this dog on Mr. Prasad were among the worst he had ever seen.

39     On all the evidence, I am satisfied the plaintiff has proven on a balance of probabilities that the Bouvier dog had manifested a vicious propensity in the weeks and months prior to its vicious attack on the plaintiff, and that the defendant knew of that propensity. Accordingly, I find the defendant liable for the attack under the doctrine of scienter.

NEGLIGENCE

40     In the alternative, even if the defendant had not had actual knowledge of the dog's propensity for violence, he clearly ought to have known. The dog's propensity for violence was manifestly clear to everyone who went near the scrapyard, and the defendant ought likewise to have known.

41     That being the case, he ought to have taken greater care to prevent the type of attack suffered by Mr. Prasad on April 28, 2002. The defendant kept the Bouvier dog on the scrapyard property seven days a week, 24 hours a day, unsupervised. The scrapyard where the dog was kept was not fenced. Clearly, at the time of the attack on Mr. Prasad, the dog was not secured by a chain.

42     Following the attack, the police officers asked the defendant to secure the dog. The defendant testified that he tried to affix the chain to the dog's collar, but could not do so because the clasp was rusted to such an extent that it could only be operated with a vice grip and a wrench. Deterioration of the chain and clasp through rust was a foreseeable event. The defendant was negligent in failing to inspect the chain regularly and in failing to maintain it in sufficiently good condition to ensure that the dog would never be free to run loose.

43     Accordingly, I also conclude that the defendant is liable in negligence for the attack on the plaintiff.

DAMAGES

44     Due to his injuries, the plaintiff has been unable to work since the attack. As set out in a letter from his employer found at Tab 9 of the Notice to Admit, the plaintiff's yearly earnings prior to the attack were between $1,550 and $1,700. He is entitled to damages for past wage loss in the amount of $3,300 plus court order interest on that amount.

45     The Workers' Compensation Board has paid medical expenses on behalf of the plaintiff totalling $6,447.51, and I make an award of special damages for past medical expenses of that amount plus court order interest.

46     There is also a claim for future wage loss. The plaintiff is now 79 years old. His evidence was that he had worked for ten years prior to the attack delivering newspapers. There was also undisputed evidence that this job would still be available for him if he were physically and mentally capable. Of course, I must also consider that in light of the plaintiff's age, there are many contingencies which could have restricted his employment past the age of 79 even if this attack had not taken place. Notwithstanding those contingencies, I am satisfied that his capacity to earn a living has been diminished, and that he deserves some compensation for that. A reasonable assessment of his loss is $4000, and I award damages under this head in that amount.

47     I come then to the question of general damages. The plaintiff suffered an unusually vicious attack which clearly terrified him and left him with a permanent disability to his right hand. He still lives in fear of dogs and has nightmares. He was previously in good health and enjoying an active lifestyle for a man of his age. His quality of life has been significantly diminished because of this attack, and that diminishment will in all likelihood continue indefinitely into the future.

48     The plaintiff has referred me to three cases to assist in assessing general damages. The first is Perez v. Vancouver (City), [2002] B.C.J. No. 2878, 2002 BCSC 1773 (B.C. S.C.). In that case, a 42-year-old woman was awarded general damages of $50,000 when she fell on cracked pavement and injured her wrist. The injury required surgery on two occasions and left her with a reduction in the range of motion of her wrist as well as persistent stiffness and pain.

49     The second case referred to by the plaintiff is Robinow v. Vancouver (City), [2003] B.C.J. No. 989, 2003 BCSC 661 (B.C. S.C.). Mr. Robinow, an 18-year-old man, was bitten by a police dog as he was trying to avoid apprehension after smoking heroin while hiding under a car in a garage. He suffered wounds to his head and arm and spent one week in hospital. He had extensive scarring to his arm which would require cosmetic surgery. The trial judge dismissed the action in negligence, but held that if liability had been found, she would have awarded general damages of $30,000.

50     Finally, the plaintiff relies on Sarabia v. Fors, [1993] B.C.J. No. 3137 (B.C. S.C.). That case involved a 70-year-old woman who was hit by a motor vehicle in a crosswalk. She suffered a fractured neck and shoulder as well as a probable fracture of a small bone in her wrist. The court found she had been an energetic woman prior to the accident, but following the accident her life was transformed. She was now an inactive elderly woman fearful of being struck by a motor vehicle again. She was awarded $35,000 in general damages.

51     Each of the three cases cited by the plaintiff is distinguishable, but for varying reasons. Perez , supra, is probably the closest to the present case in terms of the nature of the physical injury suffered. However, in that case the plaintiff was 42 years old. Robinow , supra, is closest in terms of the cause of the injury, as it involved a dog attack. However, in that case the plaintiff was 18 years old and the injuries were quite different from the present case. Sarabia , supra, did not involve a dog attack, nor were the injuries identical to those in the present case. However, that case did involve a plaintiff in her 70s, whose life was negatively transformed as a result of the injuries she suffered in the accident. I find that case to be most helpful in assessing general damages here.

52     In light of the severity of the plaintiff's injuries, which left him with a permanent physical disability as well as ongoing psychological trauma, I conclude that general damages should be assessed at $35,000.

COSTS

53     The plaintiff, as the successful party in this action, is entitled to an award of costs.

54     The plaintiff submits that costs in this case should not be measured at Scale 3, but rather at Scale 5, on the basis that the court should find the defendant deliberately lied with respect to this evidence concerning the Bouvier dog in an effort to avoid liability, and that this conduct warrants an award of special costs.

55     In Unternaher v. Wheat Sheaf Inn Ltd. (1998), 114 B.C.A.C. 299 (B.C. C.A.), the British Columbia Court of Appeal held that the trial judge had erred in awarding the successful plaintiff ordinary costs at Scale 3 rather than special costs. The trial judge in that case had found that two of the respondents who had given evidence had concocted their evidence on critical issues with respect to liability. The Court of Appeal allowed the appeal to the extent of substituting an award of special costs for the award of ordinary costs. Prowse J.A. wrote at para. 12:

In my view, the conduct of the corporate defendant's employees in lying, and thereby attempting to mislead the court with respect to the issue of liability, was conduct which should have attracted an award of special costs. In essence, by lying, they sought to deprive Mr. Unternaher of the damages to which he was ultimately found to be entitled in compensation for his injuries.

56     In the same case, Esson J.A. wrote this at paras. 14 - 16:

I would add this on the issue of costs.  The decision whether to award special costs is, of course, very much in the discretion of the trial judge.  By its very nature, it is an issue with respect to which this court will very rarely be persuaded to interfere with the judge's exercise of that discretion.
 
It should not be taken that this case is authority for the proposition that special costs should be awarded simply because the court found that the witnesses on one side were untruthful.  There may be all sorts of reasons for that.  This is a rather special situation where the trial judge expressly found in his reasons that there was a deliberate concoction of a system; and, of course, had a system been established, it is entirely likely the defendants would have succeeded on liability.
 
So the case should be regarded only as a precedent with respect to a situation of like kind.  I agree with the order proposed by Madam Justice Prowse.


57     Madam Justice Prowse and Madam Justice Huddart agreed with the comments of Mr. Justice Esson.

58     In the present case I have concluded that the evidence of the defendant Metro Wepruk regarding the dog that he kept on his scrapyard property in April 2002 was untrue. It is difficult to avoid the conclusion that his evidence was deliberately concocted to deceive the court and to avoid liability. Nevertheless, I do not find that this is the type of special situation referred to by the Court of Appeal in Unternaher which would call for an order of special costs. Accordingly, there will be an order for costs in favour of the plaintiff on Scale 3.

Action allowed.


 

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