Full Case Name:  Fisher v. Liptak

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Country of Origin:  Canada Court Name:  Alberta Provincial Court, Civil Division, Calgary, Alberta Primary Citation:  1996CarswellAlta33 Date of Decision:  Friday, January 12, 1996 Judge Name:  Scott A.C.J. Judges:  Scott A.C.J. Attorneys:  No counsel noted Docket Num:  9490103946

Two pet llamas owned by the plaintiff Fisher were attacked on two separate occasions by dogs, including by a dog owned by the defendant Liptak, causing the death of one llama and, two weeks later, injury to the second llama. After the first attack, Liptak's dog returned covered with saliva and blood, although it had no bleeding wounds; he suspected the dog had been in a fight or attack but did not investigate. His dog was later discovered injuring the second llama. The court ruled that Liptak's finding indications of  the first attack put him on notice that the dog had a 'vicious or mischievous propensity to attack other animals,' sufficient to make him strictly liable under the doctrine of scienter, for the second llama's injuries, but not for the first, for which Liptak lacked the requisite knowledge. Similarly, Liptak was not liable in negligence in the first attack, since in that rural area all the local owners let their dogs run at large and Liptak had no prior reason to suspect his dog would attack; the judge did not discuss whether Liptak was liable in negligence for the second attack.

1 The plaintiff is the owner of and resides on an acreage, comprising some five acres, in the Municipal District of Rockyview No. 44 ("Rockyview"), immediately adjacent to and west of 77th Street Southwest, near the westerly boundary of the City of Calgary. On February 10, 1994, one of two pet llamas owned by the plaintiff, named Charlie Brown, was apparently attacked by dogs, one of whom was identified by the plaintiff as belonging to the defendant, Mark Liptak, who resides on the fourth five acre parcel south of the Fisher residence. Apparently, this was the second attack by a dog or dogs unknown on one of the plaintiff's llamas, the previous attack having occurred on or about February 4, 1994. The injuries sustained by the llama on February 10 were determined by Dr. Christopher Dunn, a licensed veterinarian, who attended at the Fisher property on the date in question, to be untreatable and he accordingly, destroyed the animal. Neither the plaintiff nor his wife witnessed the actual attack, being absent from the premises at the time and only finding the injured animal on their return home. Dr. Dunn confirmed, however, that the injuries sustained by the animal were consistent with those that would have been sustained by a dog attack.

2 After Dr. Dunn had put the animal down, the plaintiff had gone to get a blanket to cover it, and on his return to the carcass found a German Shepherd dog, later identified by him to be the Liptak dog, feeding on same.

3 The defendant Liptak, in an interview with Const. Cameron of the Protective Services Department of Rockyview on February 26, 1994, admitted that, approximately three weeks before, he discovered his dog on 77th Street covered in blood and saliva with no sign of injury. At the time, however, the plaintiff Fisher believed that the dog he has seen belonged to a neighbour by the name of Donna Sutherland.

4 Thereafter, the plaintiff confined his second llama, Paco, to a small barn on his property. However, on February 26, 1994, at approximately 9:30 a.m., the plaintiff went to the barn to let Paco out and after doing so returned to the house. At approximately 10:30 a.m., he heard Paco bellowing and ran to the barn where he discovered two German Shepherd dogs attacking it. One of the dogs ran out of the barn and the plaintiff closed the barn door trapping the other dog inside. He then proceeded to get his rifle and shot the dog which had a license tag identifying it as belonging to the defendant Liptak. The plaintiff was able to identify the dead dog as the one he had found feeding on the carcass of Charlie Brown some 16 days earlier. Paco had sustained injuries which Dr. Dunn was able to treat.

5 At the time the plaintiff was dealing with the Liptak dog, the plaintiff's wife took photographs of the other dog which, by then, was some distance from the barn and these were filed in evidence. The plaintiff over the next several days visited numerous neighbouring properties in search of the other dog and ultimately determined, to his satisfaction, that the other involved in the attack on Paco belonged to the defendant Cowen.

6 In the interview by Const. Cameron of Rocky View, referred earlier, specific questions were put to Liptak concerning the dog attack on that date on the plaintiff Ilama's Paco. The questions asked and the answers given were taken down in writing by Const. Cameron and signed by the defendant Liptak, stating, in part, as follows:

Q. When was the last time you saw Jordan?

A. Yesterday evening, my mother let him out at approximately 9 a.m. this morning. 

. . . . .

Q. To the best of your knowledge, has this ever happened before?

A. Yes. 

Q. When was that and what happened?
A. Approximately three weeks ago, I found him here on the road covered with blood and saliva. 
. . . . .
Q. Did you have 'Jordan' examined?
A. I examined him myself and made sure that it was not his blood and from that point he was continuously kept confined or under supervision when not confined.
Q. What happened today with regards to confinement?
A. Today, I slept in and my mother released 'Jordan' for a short period of time only to realize that he was not around, at which point we attempted to summon him to no avail.

7 I am satisfied on the evidence that the defendant Liptak's dog Jordan was involved in the attack on Charlie Brown on February 10, 1994 and on Paco on February 26, 1994.

8 As to the defendant Cowen, the plaintiff had no evidence to show that her dog was involved in the attack on Charlie Brown on February 10, 1994. Further, as to the attack on Paco on February 26, 1994, the plaintiff has not, in my view, established that the Cowen dog was involved in that attack. The defendant's husband denies that the German Shepherd dog shown in the photographs taken by the plaintiff's wife on February 26, 1994, leaving the plaintiff's property, belonged to his wife. The plaintiff alleges that the second dog had a very blond lower coat with a black back, similar to the defendant Cowen's dog. However, the plaintiff has filed in evidence photograph of other dogs owned by various neighbours in the area at the time at least two of which, in my opinion, could be the dog in question.

9 As to the defendant Liptak, prior to February 10, 1994, Jordan, was allowed to run at large in the same manner as other dogs in the neighbourhood. It was only after finding Jordan covered with blood and saliva in February 10, 1994 that the dog was confined.

10 In determining liability, neither the Dangerous Dogs Act , R.S.A. 1980, c. D-3 nor the Stray Animals Act , R.S.A. 1980, c. S-23 are of any help. The latter statute merely deals with the right to destroy or have destroyed any dog pursuing, worrying or destroying livestock, which by Regulation 340/84 enacted pursuant to the Stray Animals Act , includes llamas. However, these statutes do not deal with the issue of civil liability.

11 The defendant raises the doctrine of scienter ( scienter retinuit ) or "knowingly keeping" a dangerous animal which imposes strict liability on the owner of such an animal which does damage to others, denying he had such knowledge. As stated in Fridman, The Law of Torts in Canada (1989), v. 1, at p. 212:

The underlying rationale for the strict liability of the scienter doctrine is that anyone who maintains an animal that is known to be dangerous to humans or other animals or in any other way does so at his peril. He has created a dangerous, or potentially dangerous situation involving risk to others. In the case of wild animals, such knowledge is irrebutably presumed by the law. Domestic animals are not normally harmful. Therefore, knowledge of the vicious nature of the particular animal must be established.

12 In order for the doctrine to apply in this case, it must be shown that the defendant Liptak's dog had a vicious and dangerous propensity and there must also be evidence that the defendant was aware of such a propensity. As stated in Flemming, The Law of Torts , 7th ed. (1987), p. 332:

When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will not be held to strict liability unless actually aware of its dangerous disposition. This proof is known technically as 'the scienter' which derives from the old style declaration, charging the defendant with knowingly keeping a dangerous animal. The requisite knowledge must relate to the particular propensity that cause the damage . . .
In proving scienter, it is not necessary that the animal had actually done the particular kind of harm on a previous occasion; it is sufficient if, to the defendant's knowledge, it had manifested a trait to do that kind of harm, as where a dog habitually rushed out of its kennel and strained on its chain to bite passing strangers. Hence, the popular saying that 'every dog has one free bite' is not literally accurate.

13 The latter statements were quoted with approval in the Saskatchewan Court of Queen's Bench cases of Sparvier et al v. MacMillan et al , [1990] 3 W.W.R. 533 and Arn et al v. Beattie et al (1991), 98 Sask.R. 163. In the former case, the plaintiffs came on the defendants' property with the intention of purchasing a dog. An adult husky that was running free attacked the adult plaintiffs causing injury. Justice Scheibel determined that as the dog was known as being shy and timid and previously had not had a propensity to attack, the doctrine of scienter did not apply. In the latter case, a three year old infant ran up to two dogs running at large in a park, one of which knocked her down and bit her leaving a noticeable scar on her cheek. Justice Batten concluded that the plaintiffs had failed to establish on a preponderance of evidence that it was the defendants' dog that had attacked the child, but went on to say that even if they had established that fact, he was satisfied that the dog was affectionate, had never bitten anyone before and did not have a vicious or mischievous habit or propensity. Again, the scienter doctrine of strict liability would not have applied.

14 In respect of the events of February 26, 1994, there is no question that the defendant Liptak's dog Jordan, was involved in an vicious attack on the plaintiff's llama, Paco. The defendant was aware on February 10, 1994 when he found his dog on 77th Street S.W. covered in blood and saliva that it had likely been involved in an attack or fight with some other animal. His evidence is that, after determining it was not his dog's blood, he made no further inquiries to determine who or what may have been involved with his dog. He indicates, however, he took steps immediately to confine Jordan. I am satisfied that the defendant Liptak must have become aware prior to February 26, 1994 of the dog's attack on the plaintiff's llama, Charlie Brown on February 10. He lived only four parcels south of the plaintiff's property. Accordingly, I am satisfied that on February 26, the defendant Liptak was or ought to have been aware that Jordan might have a vicious or mischievous propensity to attack other animals. Accordingly, I would apply the scienter doctrine to this attack and hold the defendant Liptak liable for the resulting damages suffered by the plaintiff.

15 At to the attack on Charlie Brown on February 10, 1994 resulting in its death, I am satisfied that Jordan has been identified as one of the dogs involved, but no evidence has been submitted that would impute that the defendant Liptak was aware, on that date, of any vicious or mischievous propensity on the part of Jordan. However, in British Columbia, the Court of Appeal of that province has declared:
(The) doctrine as applied in this Province, place on the appellant owners in this case, the onus of showing that they did not know, or have means of knowledge, that their dog:
21. . . . was or is of a vicious or mischievous nature or was or is accustomed to do acts causing injury . . .

16 This appears to be based on s. 21 of the Animals Act, R.S.B.C. 1960, c. 10. There is no suggestion in Sparvier v. MacMillan or Arn v. Beattie , referred to earlier, that the onus is on the defendant to show his lack of knowledge.

17 Even if the onus shifted to the defendant once the identity of his dog is established as having been involved in the attack, the only evidence I have as to the dog's nature prior to the February 10 is that of the defendant Liptak to the effect that prior to finding Jordan covered in blood and saliva on February 10, 1994 that it was a friendly animal, played well with other dogs, had not been aggressive or shown any dangerous propensities. Accordingly, in respect of the February 10 attack I am of the view that the doctrine of scienter has not been established.

18 This does not, however, end the matter. As stated in Friedman, The Law of Torts in Canada referred to previously, at p. 224:

Apart from possible liability under the scienter doctrine, there may be alternative liability in negligence for harm resulting from the acts of an animal, . . . It is always open to a plaintiff to prove that he was owed a duty of care by the defendant and that such duty of care was broken by reason of the way in which the defendant controlled, or failed to control, his animal.

19 Did the defendant breach such a duty on February 10 by allowing his dog to run at large? In Moffett et al v. Downing et al (1981), 120 D.L.R. (3d) 560, a decision of the Ontario Court of Appeal, Justice Weatherston, stated at p. 562:

The learned trial Judge in this case quoted a passage from the judgment of Bankes L.J., in Buckle v. Holmes, [1926] 2 K.B. 125 at p. 129, as follows:
. . . but those who administered the law in the course of its development had regard not to exceptional instances but to the ordinary experience of a dog's habits, and they also took into account that the dog, a useful domestic animal, must be used if at all according to its nature; that it cannot ordinarily be kept shut up, and that the general interest of the country demands that dogs should be kept and that a reasonable amount of liberty should be allowed them. 
Bankes L.J.'s language was appropriate at a time when any damage to be done by a straying dog would be expected to be minimal. That is no longer the case, and I think it is right nowadays to impose liability for negligence, when the facts justify such a finding, without having to resort to the ancient rules that required the dog's master to have knowledge of some vicious or mischievous propensity of the dog.

20 Such a stricter standard may well be applicable in urban areas as opposed to rural or a mixed country residential, small holdings and farming area such as in the present case. However, the evidence indicates that dog owners in this particular area allowed their dogs to run at large, including the plaintiff. The plaintiff filed in evidence a report made out by Const. Cameron on February 14, 1994, four days after the attack on and the death of Charlie Brown, which indicated that the plaintiff did not wish to lay any charges respecting dogs at large because he also allowed his dogs to run at large. Further, the defendant Liptak was not aware at that time that his dog had any propensity to pursue or worry livestock. The February 10, 1994 attack by the defendant Liptak's dog on Charlie Brown was not, in my opinion, reasonably foreseeable and accordingly, the defendant Liptak was not in breach of his duty.

21 As to the defendant Cowen, as previously indicated, the plaintiff has not established that the defendant Cowen's dog was involved in the attack of February 26, 1994. Even if he had been so involved, no evidence was presented to show that the defendant Cowen had any knowledge of any vicious or mischievous propensity on the part of her dog to take part in such an attack and I would not, in any event, have applied the scienter doctrine to the defendant Cowen in respect of that incident.

22 As to damages, had I found liability on the part of either or both of the defendants in respect of the attack and death of Charlie Brown on February 10, 1994, I would have awarded $1,728.37 special damages as claimed, comprising $1,500.00, the appraised value of the animal, plus $108.00 veterinary fee for euthanazing same and $120.37 for its cremation.

23 In addition, the plaintiff claimed, by way of an amendment to his Civil Claim general damages of $2,000.00 for emotional grief and trauma suffered by he and his wife as a result of the death of Charlie Brown. Although I allowed that amendment to be made prior to trial, no amendment was made to the style of cause adding Mrs. Fisher as a party plaintiff to this proceedings, nor was any request made for same at trial. Accordingly, I will deal with only Mr. Fisher's claim in this regard.

24 I have always had difficulty with claims for general damages for stress and emotional trauma resulting from an event, particularly where there is no evidence of an attending physician. Mrs. Fisher who gave evidence is a qualified psychiatric nurse with a Bachelor of Science degree in Nursing. She outlined the shock and upset both she and her husband experienced as a result of the injury suffered by Charlie Brown and its death. However, I cannot consider Mrs. Fisher an independent and disinterested party to these proceedings.

25 I accept that Mr. Fisher as well as his wife were very attached to their two llamas and the loss of Charlie Brown in such a manner, being so badly injured when they found him that he had to be destroyed, was a very traumatic experience. Mr. Fisher had been taking 1 mg of Ativan per day for some three years prior to the incident. Mr. Fisher advises that Ativan is an anti-anxiety and sedative medication. I am satisfied that the incident effected him for a short period of time, but without any independent medical evidence it is difficult to determine what would constitute a reasonable award in these circumstances. Therefore, I would have awarded as general damages in this respect only the nominal amount of $500.00 in addition to the special damages dealt with above.

26 As to the attack on the llama Paco on February 26, 1994, I would award the plaintiff special damages in the sum of $130.54 against the defendant Liptak representing the veterinary expenses incurred in treating Paco's injuries. As the plaintiff made no claim for general damages for emotional grief and trauma resulting from the attack on Paco, I would make no award in that respect. I would grant the plaintiff party and party costs of $100.00 against the defendant Liptak in addition to allowable disbursements, the same to include the cost of Dr. C. J. Dunn's veterinary report on Paco's injuries of February 28, 1994 in the sum of $64.20 and witness fees paid to Dr. Dunn of $20.00.

27 The action against defendant Cowen will be dismissed without costs.

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