Both plaintiff (appellant) Shelvey and the defendant (respondent) dog owners were guests of an unnamed third party at that party's beach cabin, where the defendants left their Rottweiler unrestrained on the cabin's deck overnight. The friendly dog jumped over the deck railing to follow the plaintiff to the beach where she was walking; the large, energetic dog bumped her legs while playfully chasing a seagull, knocking her down and leaving her unconscious. The dog had previously knocked its owner and a child down at one time due to its large size and weight. A trial judge earlier found that the defendant owners were not liable to the plaintiff in negligence as the freak accident was not reasonably foreseeable; the Court of Appeal concurred, finding no negligence. Scienter was not argued or discussed at either level.
1 As the appellant, Judith Shelvey was walking along Qualicum beach in August of 1991 she was knocked down by a two year old Rottweiler dog owned by the respondents David and Lauren Bicknell. Ms. Shelvey struck her head on the sand and lost consciousness for a period of time. Mr. Justice Harvey found that the Bicknells were not liable for the damages Ms. Shelvey suffered as a result of their dog's actions. The appellant appeals that finding.
2 The incident occurred on the last day of a three day holiday visit. Ms. Shelvey and the Bicknells were the guests of Mr. and Mrs. Taulu who owned a summer cabin on Qualicum beach. Ms. Shelvey had not met the Bicknells before this time.
3 On August 19 Ms. Shelvey, the Bicknells and the Taulus spent the day at the beach. The Rottweiler, along with the Taulus' Old English Sheep dog had been on the beach as well. The Rottweiler had been nosing around the blanket on which Ms. Shelvey was suntanning. Ms. Shelvey had been attacked by a dog when she was a young girl. She was uncomfortable with what she thought to be aggressive behaviour on the part of the Rottweiler. She said that the dog had almost stepped on her lap in an attempt to sit on her beach blanket. Ms. Shelvey expressed this concern to Loretta Taulu that day. The evidence did not reveal that the Bicknells were aware of this concern.
4 Ms. Shelvey testified that she arose at 7:30 a.m. the next day and went for a run. When she returned she removed her running shoes, washed her face and decided to go for a walk along the beach to cool down. To get to the beach Ms. Shelvey had to pass through the front patio or deck of the cabin.
5 The Rottweiler and the Sheepdog were on the front deck. The dogs had been left there overnight by their owners. Stairs led from the deck to the beach. A particle board gate of some twenty-five inches in height guarded the stairs. Ms. Shelvey stepped over the gate and then lifted it to allow the Sheepdog out. She took the Sheepdog on the walk with her. She said that the Rottweiler remained behind on the enclosed deck.
6 Ms. Shelvey testified that not long after she began her walk along the water's edge she saw the Rottweiler approaching at a very fast pace. Ms. Shelvey said this:
As I was walking down the beach and looking from my left to the right and just enjoying the day, as I turned to my left and looked out I saw out of the corner of my eye, my peripheral vision, I saw the Rottweiler coming at a very fast pace with her head down, and as I looked I tried to step away out of the water's edge because she was coming along the water's edge, and before I knew it she hit me on the back of my knees and my legs flew out from underneath me, and I felt my head hit the sand and then blackness.
7 Ms. Shelvey asserted that the Bicknells had a duty to restrain and control their dog in such a manner that it could not escape and injure her or anyone walking lawfully on the beach. In dismissing her claim the trial judge said this:
In my view, in the particular circumstances of this case, the issue for determination is whether upon retirement of the defendants [the Bicknells] on the late evening of August 19, 1991, they were negligent in leaving the Rottweiler on the deck - a deck from which I find the Rottweiler could have escaped with ease. The answer to this question, of necessity, requires consideration as well of what should the defendants have foreseen would be the consequences of leaving the Rottweiler dog on the deck of the cottage in such circumstances.
8 The trial judge noted that Mr. Bicknell was aware of two earlier occasions where the dog had collided with himself and a three year old boy on a tricycle. The trial judge accepted that the first collision was caused by a slip on some ice, the second, by the child steering his trike into the dog. He noted that Mr. Bicknell had received advice from a veterinarian that the dog needed no further obedience training. The trial judge concluded:
What occurred here was not an attack by a relatively large dog. The Rottweiler dog, some time after the plaintiff and the Sheepdog proceeded on their walk on the beach, left the deck area of the cottage and came up to them. It is a matter of speculation as to what the Rottweiler dog was attempting to do at the material time. The dog may have been running at a seagull (as the Sheepdog was doing on the beach) or running to join the Sheepdog with whom she had played with on numerous occasions as opposed to running down a human being, here the plaintiff.What did occur here was a collision on a public beach between a relatively large dog and a person. It seems to me in such circumstances the breed of the dog, what is appropriate training and housing for such a dog, is not particularly relevant. As counsel for the defendants put it in his submissions, such a collision, which he categorized as a pure accident, could have occurred with any dog.Applying the ordinary rules of negligence to the particular circumstances of this case and upon consideration of the evidence as a whole, I am unable to find that the defendants were guilty of negligence.
9 The appellant's position, as succinctly stated in the factum, is that the trial judge ought to have found the defendants liable to her on the basis that they breached their duty of care by failing to take any reasonable steps to ensure that their dog would not escape and run onto the public beach. She says that there was a duty on the defendants to take care that their property, be it animate or inanimate, was so under their control that it would not escape to do
injury to persons properly and lawfully in the public way.
10 The appellant's grounds of appeal are these:
1. The learned trial judge erred in law in determining that the defendants were not negligent in all of the circumstances.2. The learned trial judge erred in law by applying the wrong test of foreseeability.3. The learned trial judge erred in finding that the breed of dog and the appropriate housing for such a dog was irrelevant to the question of negligence in the case at bar.4. The learned trial judge erred in failing to give sufficient consideration to the existence of and the defendant's breach of the Town of Qualicum by-law.
11 I do not propose to discuss these grounds of appeal individually. An alleged error of law must be manifest in the reasons. There is nothing in the reasons for judgment in the case at bar which would indicate that the trial judge misunderstood the law with respect to foreseeability, that he failed to
consider the by-law that was placed before him or that he overlooked or disregarded relevant evidence.
12 In my view the error asserted by the appellant is an attack on the conclusions of the trial judge that the incident in question was not reasonably foreseeable. The trial judge found that the incident in question was, in his words "an accident that could have occurred with any large animal playing on the beach." By this I understood him to mean that the incident was not reasonably foreseeable. The appellant's true endeavour is to overturn this finding as unjustified on the evidence.
13 The circumstances of this case are that the defendants allowed their large young dog to be at large on the beach at Qualicum at 8 o'clock in the morning on a weekday. Allowing the dog to be at large contravened a Town of Qualicum Beach By-law, assuming the beach fell within the municipal boundaries of Qualicum Beach. The dog ran along the water's edge and struck the appellant from behind. The reasons of the trial judge demonstrate that the defendants had no reason to believe that their animal constituted any danger beyond its size and mobility.
14 The appellant relies on what was said by Dickson J.A. (as he then was) in Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co. (1971), ( sub nom. Hoffer v. Assiniboine South School Division No. 3) 21 D.L.R. (3d) 608 (Man. C.A.) (affirmed (1973), 40 D.L.R. (3d) 480n (S.C.C.)), p. 613:
These words [referring to the words of Lord Reid in Overseas Tankship (U.K.) v. Miller Steamship Propriety Ltd. (1966), (sub nom. "Wagon Mound" (The) ))  1 A.C. 617 at 625] would suggest that recovery may be had, provided the event giving rise to the damage is not regarded as "impossible", and even though it "very rarely happened", "only in very exceptional circumstances". The test of foreseeability of damage becomes a question of what is possible rather than what is probable.
15 It will be remembered that in the
case a father had permitted his 14-year-old son to operate a snowmobile which the boy, because of his small size, had to start with two hands while standing outside the vehicle. This meant that the boy had no control over the machine unless it was on a kick-stand when he started it. The boy started the machine without the kick stand. The driverless snowmobile went careening out of control for some distance, eventually smashing into a gas main at the side of a school. Escaping gas from the broken main made its way into a boiler room in the school. This
caused a fire which resulted in extensive damage to the school. The question was whether the damage was foreseeable. The Court noted that the boy was engaged in an inherently dangerous activity. After making the statement I have set out above Mr. Justice Dickson listed a number of cases and then said this at p. 614:
It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. In the case at bar I would hold that the damage was of the type or kind which any reasonable person might foresee. Gas-riser pipes on the outside of Tuxedo [a neighbourhood in Winnipeg] buildings are common. Damage to such a pipe is not of a kind that no one could anticipate. When one permits a power toboggan to run at large, or when one fires a rifle blindly down a city street, one must not define narrowly the outer limits of reasonable precision. The ambit of foreseeable damage is indeed broad.
16 In other words when one engages in an inherently dangerous activity many things can happen and the "ambit of foreseeable damage is indeed broad". But the ambit of foreseeable damage cannot be said to be so broad when one engages in less dangerous activity. In
"Wagon Mound" (The)
Lord Reid said this at page
... their Lordships judgment in Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.
17 To paraphrase, the reasons for judgment in the case at bar reveal that the trial judge did not consider the risk created by the dog running at large on the beach to be one which would influence the mind of a reasonable man. I cannot say that this conclusion was unjustified on the evidence.
18 I would dismiss the appeal.
Cumming J.A. :
19 I agree.
Goldie J.A. :
20 I agree. I wish to add only a few words of my own. In the circumstances of this case 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 alone would require a more compelling evidentiary base than is present here.
Ryan J.A. :
21 I agree the comments of Mr. Justice Goldie.
Cumming J.A. :
22 The appeal is dismissed.