Full Case Name:  Judy McAllister, Plaintiff and Grant Wiegand and Grace Wiegand, Defendants

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Country of Origin:  Canada Canada Court Name:  Ontario Supreme Court of Justice, Small Claims Court- Lindsay, Ontario Primary Citation:  2009CarswellOnt189 Date of Decision:  Monday, January 19, 2009 Judge Name:  D.J. Lange Deputy Judge Alternate Citation:  Judges:  D.J. Lange Deputy Judge Attorneys:  J. Scott McLeod, for Plaintiff; Grace Wiegand, Defendant, for herself; No one for Defendant, Grant Wiegand Docket Num:  Lindsay Court File No. 0251105

The plaintiff, a 55-year old woman and recent acquaintance of the defendants, was bitten on the cheek by the defendant's bull mastiff dog, resulting in a spreading infection and loss of all her teeth. The plaintiff was an invited guest in the defendant's home where she had been on 3-4 prior occasions. There was a question over whether the incident arose when the plaintiff startled the dog from sleep by petting it while bending over it, or whether the dog had just awakened when it was petted and bit her. The court found that dog and plaintiff were familiar with each other and there was nothing provocative that should have caused the dog to retaliate. Thus according to Ontario's Dog Owner Liability Act, where owners are strictly or absolutely liable for their dogs' injuries to others, the defendants were strictly liable to the plaintiff for her injuries.

1     This is an action under the Dog Owners' Liability Act , R.S.O. 1990, c. D.16, as amended. The plaintiff was bitten by a dog on her right cheek on November 4, 2004. The dog was a bull mastiff about the size of a Labrador retriever. [FN1] The defendant, Grant Wiegand, was the owner of the dog and the son of the defendant, Grace Wiegand. Ms. Wiegand cared for the dog when her son was travelling. The dog attack took place at her home when the son was away travelling. The definition of "owner" under the Act "includes a person who possesses or harbours the dog." On the day of the incident, Ms. Wiegand was an owner of the dog under the Act because she exercised a degree of care or control over the dog. See Purcell v. Taylor , [1994] O.J. No. 2845 (Ont. Gen. Div.) at par. 6-30.

2     The plaintiff and Ms. Wiegand were recent acquaintances. The plaintiff had visited Ms. Wiegand at her home in Lindsay on three or four occasions prior to the November 4 incident and was familiar with the dog and the dog was familiar with her. The plaintiff testified that, on the November 4 visit, the dog had fallen asleep at her feet. When she was about to leave, Ms. Wiegand told the dog told to get up. The plaintiff then patted the dog and the dog lunged at her and bit her on her right cheek.

3     Ms. Wiegand disputed the evidence of the plaintiff. She testified that, on this visit, the plaintiff and she were sitting on a chesterfield. The plaintiff asked her to call the dog out from one of the rooms. Both the plaintiff and she then patted the dog and the dog went over to lay down by the stove. When the plaintiff was leaving, she went over to the stove, bent down to pat the dog again, and startled the dog who was sleeping, according to Ms. Wiegand. It is the plaintiff's conduct, Ms. Wiegand maintains, that caused the dog to attack the plaintiff. Ms. Wiegand admitted in her evidence that the dog had bitten someone before and that the dog was later destroyed by the local health unit with the consent and agreement of the defendants.

4     I have considered the evidence given on the circumstances surrounding the attack. In my view, it is more likely than not that the attack occurred in the manner that the plaintiff has testified. The dog was awake and standing up when the plaintiff attempted to pat it and, as a result, the dog was able to respond quickly to the plaintiff's movements. The plaintiff's head was likely bent over with her face in close proximity to the standing dog. In Ms. Wiegand's recollection of the events, the dog was lying down and asleep when the plaintiff attempted to pat the dog.

5     At the time of the attack, section 2(1) of the Dog Owners' Liability Act , R.S.O. 1990, c. D.16, as amended, provided that "the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person ..." and section 2 (3) provided, in part, that "[t]he liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner." The legislation mandates an absolute or strict liability regime for owners of dogs: Collins (Litigation Guardian of) v. St. Amour , [1996] O.J. No. 485 (Ont. Gen. Div.) at par. 2; Purcell v. Taylor , [1994] O.J. No. 2845 (Ont. Gen. Div.) at par. 9, 30; Morsillo v. Migliano , [1985] O.J. No. 2657 (Ont. Dist. Ct.) at par. 20. Ms. Wiegand is, therefore, liable for the injury to the plaintiff's cheek.

6     However, section 2 (3) provides that the court, when assessing the extent of the liability of the owner, "shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages." Although I have accepted the plaintiff's evidence on the attack, I do not think that either version of how the attack occurred amounts to fault or negligence by the plaintiff. The dog and the plaintiff were familiar with each other. The dog was in the security of its home in the presence of its caregiver, Ms. Wiegand. The plaintiff was only attempting to pat the dog. This is not a case where there was aggressive body language towards the dog or loud and abusive shouting that would incite the dog to retaliate. In Strom (Litigation Guardian of) v. White , [1994] O.J. No. 2604 (Ont. Gen. Div.) at par. 19, the court held that "[t]he mere touching of the dog by means of a friendly hug" did not warrant a reduction in damages.

7     The plaintiff suffered a serious laceration to her right cheek. The laceration became infected and caused the plaintiff's teeth to become infected. As a result of the infection, all of her teeth were required to be removed and replaced with dentures. At the time of the attack, the plaintiff was a permanent resident in Canada but not eligible for provincial health insurance. She paid the medical expenses personally and claims reimbursement in this action. Ms. Wiegand does not dispute the quantum of these expenses. The expenses are: [FN2]

Emergency attendance $ 320.00

Gamma-Dynacare lab service $ 20.69

doctor visit, pain medication $ 85.31

pain medication $ 39.67

doctor visit $ 49.15

doctor visit $ 104.06

teeth removal surgery $2251.15

dentures $2054.00

Total $5284.03

8     The plaintiff also claims damages for pain and suffering. The laceration was an "H" shaped laceration which required about 19 sutures. The laceration puckered and thickened with dimensions measuring 20 x 12 mm. It was described as "an unsightly scar" by the plastic surgeon. [FN3] The scar remains visible as I observed in court when the plaintiff gave her evidence and still requires cosmetic surgery. The plaintiff stated that she had no previous scars on her face. [FN4]

9     The plaintiff testified that she was an animal lover all of her life. She was 55 years old at the time of the attack. [FN5] She stated that, as a result of the attack, she suffered nightmares of dogs barking and of being chased by dogs. These nightmares were frequent in the first six months after the attack. She also became afraid of dogs in her day to day life. She testified that every time she looked in the mirror she was reminded of the attack.

10     In Wattier v. Draper , [1988] M.J. No. 109 (Man. Q.B.), a "dog bite" case, the court observed:

Damages for scars and lacerations arising out of different kinds of injuries attract the higher end of the scale when the scars are to a plaintiff's face, and remain visible and predominant, as opposed to scarring which is cosmetic only and hidden, either in the hairline or in other lines in the face.

In assessing damages, the court must take into account, not only the external physical manifestation of the injuries suffered, but the feelings of the victim and any psychological scarring that the victim may have suffered as a result of the attack: Mayo v. Harding , [1993] N.J. No. 259 (Nfld. T.D.) at par. 60.

11     There are many cases which quantify damages with respect to facial scarring. Counsel for the plaintiff referred me to cases using Goldsmith on Damages as the guide. He submitted that the damages would exceed the range of $5,000 based on the cases referred to in Goldsmith. I have reviewed various cases dealing with dog bites and facial scars and agree that the plaintiff's damages for pain and suffering would exceed the range of $5,000.

12     The plaintiff will, therefore, have judgment against Ms. Wiegand in the amount of $10,000.00 comprised of $5,000.00 for the pain and suffering damages and $5,000.00 for the medical expenses. There was some issue about the defendant, Grant Wiegand. Ms. Wiegand testified that he passed away on August 24, 2008 but no proof of death has been filed with the court or provided to the plaintiff; counsel for the plaintiff expressed some doubt in the circumstances. In view of the lack of proof before the court, there will also be judgment in the amount of $10,000.00 against Grant Wiegand. He was an owner of the dog and jointly and severally liable with Ms. Wiegand pursuant to section 2 (2) of the Act.

13     The plaintiff placed both defendants on notice of her claim by letter dated November 25, 2004 [FN6] informing the defendants that she would be making a claim for pre-judgment interest, among other things. The statement of claim was issued June 10, 2005. I note from the court file that the plaintiff made several attempts to bring this matter to trial in a timely fashion. The first trial date was November 16, 2005. There were, however, several delays in bringing the matter to trial primarily caused by the defendants. In my view, the plaintiff is entitled to a full award of pre-judgment interest. The majority of the medical expenses were for the teeth removal and dentures which were incurred in October, November, and December 2006 and paid for. The plaintiff will have pre-judgment interest on the medical expenses of $5,000.00 from January 1, 2007. The plaintiff will also have pre-judgment interest on the pain and suffering damages of $5,000.00 from November 4, 2004, the date of the attack. Pre-judgment interest and post-judgment interest will run in accordance with the Courts of Justice Act .

14     The plaintiff may address the issue of costs, in writing, within 15 days of receiving this judgment from the Clerk of the Small Claims Court. The defendants will have 15 days to respond to the costs submissions of the plaintiff. All costs submissions are to be sent to each party and filed with the Clerk of the Small Claims Court with proof of service.

Action allowed.

FN1. See also exhibit 1, tab 1.

FN2. Exhibits 1 and 2. There was also a cosmetic surgery estimate of between $500 and $600.

FN3. Exhibit 2. See also the photos at exhibit 1, tab 8 and exhibit 3.

FN4. See the pre-attack photograph of the plaintiff in exhibit 1, tab 8.

FN5. Exhibit 2.

FN6. Exhibit 4.

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