Full Case Name:  Jacqueline Bridget Douglas Janota-Bzowska, Plaintiff (Respondent) (Appellant by Cross Appeal) and John Lorne Lewis and Anne Lewis, Defendants (Appellants) (Respondents by Cross Appeal) and John B. Holtzman, Defendant (Appellant) (Respondent by Cross Appeal) and Monique Holtzman, Defendant

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Country of Origin:  Canada Canada Court Name:  British Columbia Court of Appeal Primary Citation:  1997CarswellBC1957 Date of Decision:  Friday, September 5, 1997 Judge Name:  Cumming, Hollinrake & Finch JJ.A. Alternate Citation:  96 B.C.A.C. 70, 155 W.A.C. 70, 43 B.C.L.R. (3d) 352, [1997] B.C.J. No. 2053 Judges:  Hollinrake & Finch JJ.A. Cumming Attorneys:  E.E. Vanderburgh (for appellant dog owner Holtzman); R.B.T. Goepel & A.E. Margos (appellant homeowners); J.J. Jung (respondent Janota-Bzowska) Docket Num:  Vancouver Registry No. CA021605 & CA021639

The respondent Janota-Bzowska was an invited guest at the home of the appellant Lewises, where another guest (appellant Holtzman) had tied his Labrador dog outside; the dog lunged at the respondent, causing her to fall and break her finger. A trial court earlier found both dog-owner and home-owners liable to Janota-Bzowska under the doctrines of scienter (strict liabilty) and negligence. On appeal, the court held that there was insufficient evidence to establish that the dog had a propensity to lunge at people, or that the owner knew of such propensity, although the dog was known to chase deer. However, this was not sufficient to allow recovery under scienter. On the issue of negligence, the court also held that the dog's behaviour being 'unexpected and out of character' showed no suggestion of a risk for which the owner had failed to take reasonable precautions, so there was no negligence shown.

1     This is an appeal from the judgment of Mr. Justice Cooper pronounced 7 February 1996.

2     The plaintiff's claim against the defendants is for damages for injuries suffered as a result of being attacked by a dog while attending as an invited guest of the defendants' Lewis at their residence. The dog was owned by the defendant John B. Holtzman, who was also an invited guest.

3     The learned trial judge found that the dog ("Boomer") owned by the appellant Holtzman had caused the respondent's injury. He further concluded that the appellant Holtzman and the appellants Lewis were negligent and were therefore jointly and severally liable for the damages suffered by the respondent.

4     The facts are sufficiently set out in the reasons for judgment of the learned trial judge and need not be repeated here.

5     In his reasons for judgment the learned trial judge said:

56 I have found the evidence of the defendants where it relates to the dog Boomer to be not credible. Further, no satisfactory evidence of other similar dogs in the neighbourhood has been adduced. I find that the plaintiff's explanation of the dog attack upon her is the more rational and reasonable one. The plaintiff delivered her evidence in a forthright manner and I accept her version thereof. I am satisfied that the dog Boomer was not at the time in question secured to the truck and in fact attacked and knocked down the plaintiff causing her the injury to her right ring finger as she has described.  
. . . . .

60 I have found that the dog Boomer is the animal which caused the injuries to the plaintiff. That dog was owned by a party who was not the occupier of the premises but the occupiers, the defendants Lewis, owed a duty to the plaintiff in relation to the conduct of the third parties, in this instance, the conduct of the defendant Holtzman. Holtzman brought onto the premises a dog which evidently had a propensity for chasing deer. Holtzman considered that sufficient a risk that he said he tied his dog up. 

. . . . .

64 In my view, the defendants Lewis breached their duty of care to the plaintiff by not discussing with the defendant Holtzman his dog's propensity for mischievousness, permitting the dog to be at large and unrestrained, and failing to warn or protect the plaintiff from an unprovoked attack by the dog. I likewise find the defendant Holtzman to be negligent and in a breach of his common law duty of care to the plaintiff by failing to prevent his dog from attacking the plaintiff, or to warn the plaintiff of the presence of his dog on the premises, and failing to take reasonable steps to see that the plaintiff was safe from any harm which his dog might case her.

65 In the case at bar, none of the defendants took any steps to prevent the injuries which ensued to the plaintiff. In failing to do so all of the defendants were in my view equally negligent. ...

6     The appellants contend that the learned trial judge erred in:

1. concluding that "Boomer" was the dog responsible for the injuries to the respondent;

2. concluding that the evidence of the appellant Holtzman and the appellants Lewis was not credible;

3. concluding that the appellant Holtzman and the appellants Lewis were liable to the respondent under the doctrine of scienter ; and

4. concluding that the appellant Holtzman and the appellants Lewis were liable in negligence to the respondent.

7     I will deal firstly with issues one and two together. Did the trial judge err in his findings of fact and credibility? In my respectful opinion there was ample evidence to support the conclusions of fact arrived at by the learned trial judge who had the advantage, not available to us, of hearing the evidence of the witnesses before him. This Court should not interfere with those findings of fact, based as they were on his conclusions with respect to credibility. Therefore, I would reject both the first and second grounds of appeal as set out above.

8     I turn now to issues three and four. It will be useful to set out a brief background of the law relating to animals and liability for injury caused by animals. Generally, dangerous animals can be classified in two categories: there are those which are inherently dangerous and those that are normally tame but where individual members of the group act ferociously or viciously. Fleming in The Law of Torts , Seventh Ed., (Sydney, Australia: The Law Book Company Limited, 1987) puts it this way at p. 331:

Dangerous animals are divided into two classes: (i) animals ferae naturae , like bears and lions, which by reason of their species are normally dangerous, although individuals may be more or less tame; and (ii) animals mansuetae naturae , like cows and dogs, which, as a kind are ordinarily harmless, though individuals may harbour a vicious or dangerous disposition. Animals of the first category are never regarded as safe, and liability attaches for the harm they may do without proof that the particular animal is savage. ... But as regards the second class, it must be shown that the particular animal was dangerous and that the defendant knew, or had reason to know, it.

9     The result of this classification is that the owner of a dog can be held 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. In Draper v. Hodder , [1972] 2 All E.R. 210 (Eng. C.A.), Lord Justice Edmund Davies makes this very point at p. 217:

The defendant's liability for the terrible injuries sustained by the infant plaintiff was originally sought to be based on the grounds of (1) scienter and (2) negligence. These differ in several important respects. The former is considerably older and, 'though meant to give a rough expression to the idea of negligence', as Professor Glanville Williams put it in his classic work on Liability for Animals [1939, p. v], gives rise to strict liability. A person keeping an animal 'mansuetae naturae' which he knows has a propensity to do a particular kind of mischief is under an absolute duty to prevent it from doing that kind of mischief and is therefore liable without proof of negligence for any damage caused by the animal's acting in accordance with that known propensity. But, to render the defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings.

10     Applying this to the case at bar, it appears that the plaintiff could recover damages in either of two possible ways, each of which must be considered separately. First, the plaintiff may prove that the requirements of the doctrine of scienter have been satisfied. Second, even if the requirements of the doctrine cannot be established, it is still possible for the plaintiff to recover damages by establishing the negligence on the part of either the owner of the dog or the owner of the property where the injury took place.

11     As to the doctrine of scienter , Fleming in The Law of Torts , describes the doctrine of scienter as follows at p. 332:

When an animal of the harmless species [ animals mansuetae naturae ] 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 caused the damage.

12     The doctrine of scienter has a long history in British Columbia. It was first brought forth over 100 years ago in Nevill v. Laing (1892), 2 B.C.R. 100 (B.C. C.A.), where Chief Justice Begbie stated that, in order to found an action against an owner, the plaintiff was required to prove three things: first, that the defendant was the owner, second, that the dog was accustomed to bite mankind [or cause harm in some other way] and finally, that the defendant knew of the propensity. Quoting from an earlier decision, May v. Burdett (1846), 9 Q.B. 101 (Eng. Q.B.), Chief Justice Begbie concluded:

Whoever keeps an animal accustomed to attack and bite mankind, with the knowledge that it is so accustomed is liable for any injury it may inflict, without any averment of negligence in the securing of it. Negligence is presumed without any express averment. ... But a dog is not such an animal. On the contrary the law presumes that, until the contrary is shown, a dog is not accustomed to bite mankind ... the mere keeping of an animal known to be dangerous is actionable rather implies that the mere keeping of an animal not known to be dangerous is not actionable.

13     The common law doctrine of scienter as it applies in British Columbia was discussed in Kirk v. Trerise , [1981] 4 W.W.R. 677 (B.C. C.A.) where McFarlane J.A. for the majority held at p.679:

That doctrine, as applied in this province, places on the appellant owners in this case the onus of showing that they did not know or have the means of knowledge, that their dog "was or is of a vicious or mischievous nature, or was or is accustomed to do acts causing injury".

14     The words of Mr. Justice McFarlane are taken from s.20 of the Animals Act , R.S.B.C. 1979, c.16 which has since been repealed. The Act , as evidenced in the passage I have quoted, reversed the common law onus of proof and placed the burden of proving lack of propensity for causing harm on the owner. However, with the repeal of the Animals Act , the common law as articulated by Chief Justice Begbie in Neville again applies and the onus is on the claimant to establish the three requirements including propensity.

15     In his reasons for judgment the learned judge below said:

I accept and agree with the reasons of Judge de Villiers in McGrath v. Harrington P.C.B.C. No. 4969 Quesnel Registry (July 7, 1992) in which a female R.C.M.P. member had been bitten by a female dog, known to attack visitors. The learned judge held at P. 12 of his reasons that:

An occupier of premises must not escape liability simply because there may be doubt as to whether he knew of the mischievous propensity of the dog.

The occupier of premises owes a statutory duty to his visitor to take reasonable care that his dog will not attack the visitor, and it is no defence for the occupier to say that he did not know his dog had a vicious or mischievous disposition. All dogs have a foreseeable latent disposition to violence. There is no onus on a claimant to prove that the owner knew of the dog's particular disposition.

16     In my respectful view this is not the law and in this regard the learned judge below erred.

17     Cases decided after the repeal of the Animals Act confirm that the onus of establishing propensity once again rests with the plaintiff. For example, in Halliday v. Mahony (June 4, 1991), Doc. Vancouver C893493 (B.C. S.C.), Mr. Justice Owen-Flood concluded that:

I find that the onus to establish what is termed scienter is, at common law, on the plaintiff and not on the defendants at any event. The decision of the British Columbia Court of Appeal in Kirk v. Trerise , has been cited ... McFarlane J.A. was giving judgment under the Animals Act and specifically s. 20 of that Act was in force. Section 20 of that Act which created the reverse onus, putting the onus on the defendants to prove that they did not know or have the means of knowledge that the animal was or is of a vicious or mischievous nature, or is accustomed to do acts causing injury. ... The Animals Act was repealed with effect from 20th of February, 1981, and replaced by the Livestock Act . Dogs do not come under the definition of livestock in that Act.

Mr. Justice Owen-Flood then concluded that the common law as it stood prior to the Animals Act was again applicable and the onus was again on the plaintiff to demonstrate propensity. (See also Kerby (Guardian ad litem of) v. Visco (April 20, 1994), Doc. Salmon Arm 3048 (B.C. S.C.)

18     In another more recent British Columbia decision, Woods v. Standish (1991), 58 B.C.L.R. (2d) 302 (B.C. S.C.), the Court summed up the essence of the doctrine of scienter at p.306:

In short the adage that "every dog is entitled to one bite" seems to sum up the law reasonably accurately.

19     While the adage quoted in the Woods decision may be a reasonably accurate statement of the law it should be pointed out that a dog need not have caused the specific type of harm on a prior occasion for the doctrine to apply. It would be enough if the owner knew that the dog had a propensity or manifested a trait to do that kind of harm even if it had not actually caused that particular harm. This point is clearly made in Sparvier v. MacMillan , [1990] 3 W.W.R. 533 (Sask. Q.B.) where the Saskatchewan court, in discussing the common law doctrine of scienter, concluded that:

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 type of harm.

See also Taller (Guardian ad litem of) v. Goldenshtein (1992), 87 B.C.L.R. (2d) 249 (B.C. C.A.).

20     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 doctrine 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.

21     In this case, the trial judge found as a fact that the defendant was the owner of the dog and that the dog had caused the injuries in question. As stated earlier, these are findings of fact with which I am not prepared to interfere. The first of the conditions has therefore been met. However, the second and third conditions are problematic. The only evidence of the dog's propensity for this kind of behaviour is the statement by Holtzman that he tied the dog up because it liked to chase deer. I am not satisfied that this is sufficient evidence to establish that this particular dog had a propensity for jumping up on persons.

22     Given this finding, I am unable to conclude that either the second or third condition has been satisfied and as a result, the plaintiff is not entitled to recover under the doctrine of scienter . It is now necessary to consider whether the plaintiff should recover on the basis of negligence.

23     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. See: Draper v. Hodder, supra , at 217-219, and Shelvey v. Bicknell (27 May 1994), Vancouver Registry, No. C923654 (B.C.S.C.), (1 May 1996), Vancouver Registry, No. CA019006 (B.C.C.A.) at 9.
24     There was no evidence at trial to suggest that the accident and resulting injury to the plaintiff were reasonably foreseeable. In fact, in my view, the evidence established that the dog's actions were unexpected and out of character. In this regard the judgment of Mr. Justice Goldie in the Shelvey v. Bicknell (1 May 1996) Vancouver Registry CA019006 (B.C. C.A.) [reported (1996), 77 B.C.A.C. 301 (B.C. C.A.)] case is applicable is here. There he said:
... the findings of fact preclude negligence on the part of the owner in the absence of a known propensity on the part of the animal to behave in a manner requiring appropriate precautions. No such propensity on the part of this animal was established. To attribute to the animal propensities on account of its breed [or I might add, in the case here, the possibility that it might chase a deer] alone would require a more compelling evidentiary base than is present here. (words in parenthesis mine)
The finding of negligence against Holtzman is not supported on the evidence and therefore cannot stand.

25     As to the Lewises, there is no evidence to support a finding of negligence against them. Although the Lewises had a duty to take reasonable care to see that the plaintiff, who may be regarded as their guest, would be reasonably safe from injury, liability cannot attach to them in the circumstances of this case absent a finding that it was foreseeable that Holtzman's dog would cause the type of harm it did. Lewis, based on his knowledge of the dog, had no reason to believe that the dog would act in the manner in which it did. In these circumstances, it cannot be said that it was negligent for the Lewises to have the dog in their home. 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 .

26     For these reasons, I would allow the appeal and dismiss the action.

Hollinrake J.A. :

27     I agree.

Finch J.A. :

28     I agree.

Cumming J.A. :

29     The appeal is allowed. The appellants are entitled to their costs both here and below.
Appeal dismissed.
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