The child plaintiff was attacked and bitten by a chained German Shepherd after she put her arm around the dog's neck to hug or play with it; she sustained scarring lacerations of her head, cheek and eyelid that required 5 days' hospitalization after plastic surgery. The trial judge earlier held that because the dog, had two months previously, bitten a young boy on the face and ear in an unprovoked attack, the owner had prior knowledge of the dog's propensity to bite children, yet he kept the dog regardless. The owner was thus strictly liable under the doctrine of scienter. The Court of Appeal reversed this holding, with two judges finding that the boy in the earlier attack had been injured accidentally by the dog's dew-claw, rather than being bitten, so that there was insufficient notice to the dog's owner of any vicious propensity; thus he was not strictly liable in scienter.
Text of Opinion:
Bridges, C.J.N.B. [dissenting]:
1 This is an appeal by the defendant from a judgment directed against him in favour of the plaintiffs for $2,955.75 in the Queen's Bench Division.
2 The facts are fully set out in the judgment of my brother Bugold. There is no question that on August 7, 1968 the infant plaintiff received from a German Shepherd dog of the defendant multiple lacerations on her face and three cuts on her head which necessitated many stitches and a stay of five days in hospital. There will be scars on her face.
3 The infant plaintiff, who was nine years old at the time of the trial, which took place in April 1969, gave unsworn evidence to the effect the dog jumped on her and bit her on the head, eyelid and left cheek. There was no other evidence that the dog bit her though a Mrs. Shirley M. Marquis testified that she saw the dog knock the infant plaintiff over and hold her down; that she called the dog off and that on running to the infant plaintiff found blood running down her cheek. In his reasons for judgment, the learned trial Judge found that the injuries suffered by the plaintiff were caused by the defendant's dog and that the nature of the attack showed conclusively the dog had a mischievous propensity to commit such injuries.
4 It was contended on the argument that the infant plaintiff's injuries were probably caused by the dew-claw on one of the dog's forelegs. In his reasons for judgment the learned trial Judge made no finding how they were caused. It is the opinion of the other members of this Court that they were caused by the dew-claw and I am willing to accept it as a fact.
5 In the case of animals which are not dangerous to mankind, it is necessary to prove that the owner knew the individual animal had a propensity to do the damage in question. This is termed proof of scienter. See Charlesworth on Negligence, 4th ed., p. 331.
6 There are several decisions of this Court relating to injuries caused to persons by bites of dogs. See Wilmot v. Vanwart (1877) 17 N.B.R. 456, Wood v. Vaughan (1889) 28 N.B.R. 472, affirmed (1890) 18 S.C.R. 703 and Price v. Wright (1899) 35 N.B.R. 26.
7 It has been held that in the case of a dog, knowledge of the owner of one bite by the dog is sufficient to establish scienter. See Parsons v. King (1891) 8 T.L.R. 114.
8 For scienter on the part of the defendant, the learned trial Judge relied on an incident that happened on May 24, 1968 in which John Appleby, a small boy, who was five years of age at the time of the trial, suffered an injury to his head from the dog.
9 The testimony of young Appleby, who was, of course, not sworn, was to the effect that with another small boy he was looking at the dog when it bit him about the head, being on its hind legs at the time. The evidence of the boy's father, George Appleby, who saw his son shortly after his injury is as follows:-
Q Where was he?
A He was in the emergency room at St. Joseph's Hospital in Dalhousie.
Q And describe what you saw when you saw you son?
A Well I went in and he was sitting on a stretcher or a table and his head was lying open where it had been cut.
A From the top of his skull here right down to the ear and across over this way (indic.).
Q Is that still visible there?
A It is still visible except that his hair covers it; if his hair was off you would be able to see it.
Q And what treatment was he administered at the hospital?
MR. RICHARD: This again is limited to what he saw.
A They cleaned him up - his face was bruised and there was gravel and dirt in his face and I think it was this side was swollen up as though he had hit his face on the ground. They cleaned that up and washed the blood off and took him out.
Q And when was it you saw your son after they took him out?
A Well that evening - I think we brought him home that evening; they did surgery on him.
Q What did he look like then when you brought him home?
A Well he was bandaged this way and across here to his ears (indic.) and his face was a little bit swollen and he was kind of groggy; he had had an anaesthetic.
Q And do you know if there were any stitches in his head?
A Yes there were.
Q How many roughly?
A I think fifteen.
10 The defendant knew of the Appleby boy being injured by his dog. He went to the hospital shortly after the boy was taken there and saw both him and his father. In his evidence he said:-
Yes, I checked at the back of my trailer and I checked where the dog was, and I concluded from the investigation that I conducted, in agreement with the father, Mr. Appleby, that the young lad was not bitten but that the young lad was more likely injured by the dual (dew-) claw on the paw of the dog. The young lad had been apparently playing with the dog along with my son, who was three years old at that time - four years old now - and the accident occurred where the dog happened to be playing with him and scratched him on the head with this dual (dew-) claw and the young lad was knocked down and struck his head on a toy box which was just behind my trailer to keep toys in for my youngsters. This was what we concluded, or what I concluded along with the young fellow's father at the time. I was under no impression at any time that the dog had bitten the young lad, and if I had been told he had been bitten, I would have destroyed the dog. I wasn't told by Mr. Appleby.
11 The learned trial Judge made no finding as to whether the injury to the boy was caused by a bite or a bad scratch from a claw. I have no hesitation in believing the cut on the head extending from the top of the skull down to the ear was caused by one of the dog's claws and that his face was bruised when he fell to the ground.
12 It is my opinion that after the injury to the Appleby boy, the defendant could not but know that he was keeping a dog, which, if not vicious, was dangerous for young children to approach as it was liable to knock them down and cause serious injury. In my opinion, this was sufficient to establish scienter.
13 While the allegations of scienter contained in the statement of claim may not be what were proved, I do not think this should make any difference as the defendant was in no way taken by surprise with any evidence. I would allow any amendment that may be necessary.
14 I would dismiss the appeal with costs.
Limerick, J.A. concurred with Bugold, J.A.:
15 This is an appeal by the Defendant from a decision delivered in the Queen's Bench Division whereby the learned trial Judge found in favour of the Plaintiffs for a total award of damages in the sum of $2,955.75 and costs to be taxed.
16 This action is for damages for injuries received by the infant Respondent Linda Richard when she was allegedly attacked and bitten by a dog owned, at the time material to the action, by the Appellant.
17 The circumstances of the incident which gave rise to this litigation may be summarized briefly as follows: On or about the 7th day of August, A.D., 1968, the Appellant was the owner of a German Shepherd dog, weighing between 85 to 90 pounds, which he kept confined by means of a chain looped around the bole of a tree in the rear of a trailer which he occupied with his family in the Glenncross Trailer Park at Darlington in the Parish of Dalhousie in the County of Restigouche.
18 The infant Respondent was eight years of age. At approximately 6:30 o'clock in the afternoon of the above mentioned date, she had gone to a canteen located on the trailer park premises and was returning to her home situated outside the trailer park property and somewhat to the west of the Hoban trailer. As she passed by the Hoban trailer, she went to the rear of the trailer to see the dog. The latter jumped on her and as a result she sustained head and facial lacerations which necessitated medical treatment and hospitalization.
19 Paragraph 2 of the Respondents' Statement of Claim alleges, inter alia:-
. . . The Defendant, Constable Tim Hoban, an R.C.M.P. at all times material to this action was the owner of a German Shepherd dog, whom he knew to be savage and vicious having already bit (sic) several children in the past few months.
20 Paragraph 3 of the said Statement of Claim alleges, in part:-
. . . she was savagely attacked by a vicious German Shepherd dog owned by Constable Tim Hoban.
The above allegations are denied by the Appellant in his defence.
21 The ownership of the dog is not in issue in this case.
22 The Respondents failed to prove the vital ingredients of the matters complained of; namely, that the Appellant knew his dog "to be savage and vicious having already bit (sic) several children in the past few months" and that the infant Respondent "was savagely attacked".
23 With the exception of the Appleby incident, which I am about to deal with, I am unable to find any evidence whatsoever on the record to establish that the Appeallant knew his dog "to be savage and vicious having already bit (sic) several children in the past few months".
24 The photographs showing the nature of the injuries to the head and face of the infant Respondent, disclose these injuries would have been caused by the dew-claw of the dog when he jumped up in front of the infant Respondent rather than by biting. There is also no evidence to support the allegation of a savage attack by the dog on the infant. The doctor who treated the infant Respondent could not voice an opinion as to the cause of the injuries.
25 In direct examination, Dr. Edese Bugold, who treated the infant Respondent is reported as having testified, inter alia:-
Q. Did you form an opinion as to the nature of her injuries - what caused these injuries?
A. Well it is hard to say - so many things could happen; but if it is going by what I heard, it was by a dog.
26 And in cross-examination this same witness testified:-
Q. But from what you could see of the child, you couldn't determine what happened?
A. No there was some lacerations and they can be caused by anything.
27 At the trial, the Respondents adduced evidence relating to an incident which occurred on the 24th day of May, A.D. 1968, a little over two months prior to the alleged attack on the infant Respondent herein. At that time, it is alleged that the dog had attacked and bitten one John Appleby at the rear of the Hoban trailer. Young Appleby was in the vicinity of five years of age.
28 Immediately following this incident, the Appellant personally conducted an investigation into the circumstances which resulted in the alleged injuries to the Appleby boy. During the course of this investigation, the Appellant talked with George Appleby, the father of John Appleby, and with the young boy himself. Upon completion of his investigation, the Appellant was satisfied that his dog had not bitten John Appleby. Young Appleby's father concurred with the conclusions reached by the Appellant.
29 In this connection, the following extract of the evidence of the Appellant is worthy of note:-
Q. Did you do anything else - further - in your investigation of this incident, constable?
A. Yes, I checked at the back of my trailer and I checked where the dog was, and I concluded from the investigation that I conducted, in agreement with the father, Mr. Appleby, that the yound lad was not bitten but that the young lad was more likely injured by the dual (sic) claw on the paw of the dog. The young lad had been apparently playing with the dog along with my son, who was three years old at that time - four years old now - and the accident occurred where the dog happened to be playing with him and scratched him on the head with this dual (sic) claw and the young lad was knocked down and struck his head on a toy box which was just behind my trailer to keep toys in for my younsters. This was what we concluded, or what I concluded along with the young fellow's father at the time. I was under no impression at any time that the dog had bitten the young lad, and if I had been told he had been bitten, I would have destroyed the dog. I wasn't told by Mr. Appleby.
30 On the same day of the Appleby incident, the Appellant took his dog to a Mr. Thorburn of the S.P.C.A. at Charlo, N.B. The dog showed no signs of rabies, distemper or anything of this nature.
31 Prior to the Richard incident, the Appellant had received no complaints whatever about his dog, with the exception of the Appleby incident. In so far as this latter incident is concerned, the evidence which relates to it is inconclusive to show that the dog bit the Appleby child.
32 George Appleby, in cross-examination, testified:-
Q. You were satisfied that it was solely and accident in playing with the dog?
A. I wouldn't want to say that that way; it is possible that it was an accident. I didn't see it and I wouldn't want to be definite on something like that because I really don't know.
33 Young Appleby was treated by Dr. Pothier following his injuries. The doctor was not called to testify as to the nature, extent and cause of the injuries.
34 The present case involves the question of liability for damage as a result of injuries caused by a dog. At common law the dog has been placed in a favoured position, as compared with that of most of the other domestic animals. Like them, the dog did not involve its owner under the strict liability imposed in respect of the keeping of dangerous animals. Liability in respect of a dog, under the strict rule, would only arise if scienter were proved.
35 The common law liability of owners of animals is stated in Halsbury's Laws of England, 3rd. ed. Vol. 1, page 663, para. 1267 in the following words:-
The law assumes that animals which from their nature are harmless, or are rendered so by being domesticated for generations, are not of a dangerous disposition; and the owner of such an animal is not, in the absence of negligence, liable for an act of a vicious or mischievous kind which it is not the animal's nature usually to commit, unless he knows that the animal has that particular vicious or mischievous propensity; proof of this knowledge, or scienter, is essential. But where this knowledge exists, the owner keeps such an animal at his peril, and is answerable in damages for any harm done by the animal, even though the immediate cause of the injury is the intervening voluntary act of a third person.
With regards to proof of scienter, Halsbury (supra) at para. 1268 states:-
The evidence of the scienter must be directed to the particular mischievous propensity that caused the damage. In order to recover for the bite of a dog on a human being, it is necessary to show that the owner had notice of the disposition of the dog to bite mankind; it is not enough to show that the dog had previously bitten a goat; but proof of a general savage or ferocious disposition towards mankind, and that it had a habit of rushing at people and attempting to bite them, is sufficient without proof of any actual previous bite.
36 The essence of liability under the common law is scienter, as pointed out by Lord Cranworth in Fleeming v. Orr (1855) 2 Macqueen - The Scots Revised Reports, Vol. 9, p. 516. This rule has been modified or removed in many jurisdictions. There is no statute in New Brunswick which would remove or modify the common law requirement of scienter as it relates to this case.
37 In the case of Line v. Taylor (1862), Foster and Finlason's Nisi Prius Reports, Vol. 3, p. 731 at p. 732, Erle, C.J. (to the jury) stated:-
The plaintiff, to sustain the action, must satisfy you, not only that he was injured by the dog, but that the dog was fierce and mischievous, and known to be so by the plaintiff. If the plaintiff was really hurt and injured, it does not matter whether it was by the bite of the teeth or merely by a bruise or the effects of a squeeze. And it is not necessary to show that he was used to bite, if he was used to injure people. But if he merely had a habit of bounding upon people in play, even although in so doing he might frighten timid persons or cause some little annoyance, that would not sustain the action. . . .
38 Allen, C.J., in Wilmot v. Vanwart (1877) 17 N.B.R. 456, at pp. 460- 461 says:-
If a person keeps an animal which is ferocious by nature and accustomed to attack human beings, such as a tiger or a lion, he must take care of him at his peril; and in case the animal inflicts an injury upon a person for which an action is brought, it is unnecessary for the plaintiff either to allege or prove the defendant's knowledge of the mischievous disposition of the animal, because it is its natural disposition, and the defendant is presumed to know it, and is bound to take care that he does no injury to his neighbours.
Such, however, is not the natural disposition of the dog. And, therefore, it is necessary in an action brought for an injury inflicted by a dog, to allege and prove that the defendant in such action had knowledge of the animal's vicious propensity. But, as soon as that knowledge is shewn, the same responsibility attaches to the owner to keep him from doing mischief, as the keeper of an animal naturally ferocious would be subject to; and there is no necessity for proving negligence. 'A person keeping a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril; and if it does mischief negligence is presumed, without express averment:' May v. Burdett (9Q.B.101). . . .
39 In the instant case the Respondents had to prove three things: (1) that it was the dog in question which inflicted the injury; (2) that the dog had a mischievous propensity to commit the particular act of injury, and (3) that the owner knew of such propensity; in other words, had scienter.
40 There can be no question as to (1) supra. It was the Appellant's dog which inflicted the injury.
41 As to (2) supra, the Respondents sought to establish that on a previous occasion the dog had shown a propensity to attack and bite children by introducing the Appleby incident. Since I have already dealt with this incident and since there is no evidence of any other similar incident or incidents prior to the one at bar, I have come to the conclusion that the Respondents failed to show any previous bad character of the dog. I find on the evidence - the dog was not "savage and vicious having already bit (sic) several children in the past few months".
42 With regards to 3 (supra), the evidence supports an absence of any knowledge or reason for apprehension by the Appellant of the likelihood that the dog would attack or bite someone. The Appellant, following his investigation of the Appleby incident, had no reason to apprehend any vicious propensity in his dog. The evidence supports the peaceful character of the dog and the ignorance of the Appellant of any vicious propensity.
43 I would allow the appeal and set aside the judgment as directed. The Appellant is entitled to costs both here and in the Court below.