“My Neighbour’s Dog Bit My Child. What Can I Do?”

by John McKiggan

My associate Mark Raftus was retained by a client as a result of an injury from a dog bite. Mark wrote an interesting article for our newsletter about the law pertaining to dog bite claims. I thought it was worth posting here for our blog readers. Take it away Mark…

 

“My Neighbour’s Dog Bit My Child. What Can I Do?”

By Mark S. Raftus

I’m sure we have all heard a family member, friend or acquaintance say in conversation “I heard so and so’s child was bitten by a dog”. Immediately we think “I hope the child’s ok” and then “Why did the dog do that?” We hear of attacks happening on play grounds, on walking paths and on visits to someone’s house. Unfortunately, a dog bite is a fairly common event.

The question remains though what can legally be done about the dog bite?

In the situation of a dog bite claim, one question leads to another – what if the dog was known to be a calm dog who acted out of character? What if the dog had a history of barking at people, or nipping at people who walked by or even bit someone before? What if the dog owner did not warn others or keep the dog away from people? Does the law treat these situations differently?

The short answer is yes.

Can I make a claim for my child?

In personal injury claims the severity of the injury received will often dictate if a formal claim should be made. If the dog bite didn’t result in significant scarring, injury or trauma or there is no need for ongoing medical treatment, a formal injury claim may not be warranted. In those cases, however, you may still want to ensure the dog does not bite or injure someone else in the future. In those circumstances there is still recourse even when not making a formal injury claim. How so?

Municipal Bylaws

Check your bylaws and make a complaint to the proper municipal authority. Many municipalities in Nova Scotia have by-laws which address animals and pets. In Halifax, By-Law A-700 is titled Respecting Animals and Responsible Pet Ownership. Sections 11 and 12 of the By-Law set out the duties of a dog owner and state it is an offense for a dog to run at large, damage property, be in a public park that prohibits dogs or to make too much noise by howling or barking. Section 13 makes it an offense for a dog to attack a person. However, it is only an offense if the dog is deemed to be “dangerous” before it attacks. If the dog is deemed dangerous it can be registered as such in the municipal registry for consideration in later attacks. In order for the dog to be labelled as “dangerous” it has to have attacked a human being or animal before or shown a propensity to do so.

Defences to being labelled a dangerous dog

There are defences a dog owner can rely on to avoid the dog being labelled dangerous. Examples are the dog attacking a trespasser, the dog defending itself from abuse or the dog acting in defence from an attack by a person or other animal. Section 18 allows a Peace Officer to seize a dog that has attacked a person or animal. Under section 20 the Peace Officer can deliver the dog to a Shelter Keeper. Under section 24 the Shelter Keeper shall feed and water the dog and make all reasonable efforts to notify the dog owner. After three days if the dog owner does not redeem the dog [come and get it] the Shelter Keeper could sell, adopt or destroy the dog.

So, a compliant to the municipal authorities is a remedy a lower severity victim can rely on to address a biting dog.

Making a formal personal injury claim

If the victim of the dog bite has injuries to a severity that warrant a personal injury claim being made, the claim would be processed in the typical course by making a claim under the home owner’s insurance policy of the dog owner or through the tenants insurance if an apartment situation. There are factors the claimant, his lawyer and ultimately the Court will look at to determine if the claim for compensation can succeed.

Legal tests and case law to consider when making a dog bite personal injury claim

As discussed in 1986 by the Nova Scotia Court of Appeal in Brewer v Saunders the old common law doctrine of “scienter” which addressed establishing responsibility of a dog owner for a dog bite has been modified. Under that old common law doctrine a plaintiff had to establish three principles to be successful in a claim:

  1. The named defendant was the owner of the dog;
  2. The dog manifested a propensity to cause the type of harm that occurred;
  3. The dog owner knew of the propensity.

This case in essence decided that the significant onus placed on the plaintiff to prove the owner knew of the propensity of the dog to bite was no longer necessary. Rather, the Court stated basic tort negligence principles only needed to be met. Put simply:

  • Did the dog owner owe a duty to the person that was injured?
  • Did the owner act reasonably in the circumstances?
  • If the owner didn’t act reasonably did that lead to the injury?

In other words; in all of the circumstances of the event did the dog owner owe a duty to the victim to take care and was there a breach of that duty?

The later 1991 Nova Scotia Court of Appeal decision in Hendsbee v New and Gray applied this test in a claim for damages after a dog bite denying a compensation award seeking a fence to be erected.

There are cases in Nova Scotia which found liability for dog bites and also many that do not. In the 1989 Nova Scotia case of Player v L’Esperance and Landry the Court found that where a fuel delivery man set off a whistle while filling fuel on a residential property causing the property owner’s dog to go berserk, break its leash and attack the driver there was no liability. The court decided the dog owner could not have anticipated the dog would act in such a manner with no prior history of attacking people.

In addition to the standard negligence principles, a claim for a dog attack could also be founded via statute such as the Nova Scotia Occupiers Liability Act which contains provisions that may be used to hold a dog owner responsible if someone is injured by a dog attack while on the dog owner’s property. Section 4 (1) of that Act states that an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that each person entering on the premises and the property brought on the premises by that person are reasonably safe while on the premises.

In order for a dog owner to be held liable under the Occupier’s Liability Act, the injured person would have to prove that the dog owner knew (or ought to have known) that their dog may pose a risk of harm to people coming on the property and the dog owner did not take reasonable steps to prevent the harm.

Summary

When a dog bite happens it makes sense to gather all facts of the event and let the Municipality or a Peace Officer know of the attack so a record can be made to be referred to if the same dog bites again. When deciding to make a claim for for your child’s injuries there are many factors a Court will look at to determine if liability on a dog owner is to be founded and compensation awarded. The severity of the dog bite injury will dictate whether a formal claim is warranted or not.

 

 

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