ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘Scienter’

History of Violence Not Necessary For Dog Injury Claim To Succeed

August 20th, 2014

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, addressing liability when a dog leaves its owners property and causes harm to others.

In today’s case (Gallant v. Slootweg) “the defendants’ dog, “Rocky”, ran from their property, apparently unimpeded by the electronic fence that was intended to keep it within the property, towards the plaintiff and knocked him from his bicycle“.  The Plaintiff suffered orthopeaddic injuries and sued for damages.

The dog did not have a history of violence but did have “a propensity to chase cyclists”.  The Defendant’s argued that this was not sufficient to establish liability as the dog did not have a history “of a vicious or dangerous nature” and that installing an electronic fence was a sufficient step to prevent a finding of negligence.  Mr. Justice Joyce disagreed and found the defendants  liable in both negligence and under the principles of scienter.  In reaching this conclusion the Court provided the following reasons:

[24]         It is not necessary, however, for the plaintiff to show that the dog has actually caused the particular harm in the past; what is required is to show that the defendant knew or ought to have known that the dog had a propensity or manifested a trait to do that kind of harm. ..

[32]         I am satisfied that Rocky had a propensity to chase cyclists while barking and get as close to them as he could within the electronic restrain to which he was ordinarily subject, and to follow them as they traversed in front of the defendants’ yard. I am satisfied that Rocky’s actions constituted a propensity to cause harm to cyclists by knocking them from their bicycles if he was not restrained within the yard. I am further satisfied that the defendants knew, or ought to have known, that if not restrained, Rocky would run right up to a cyclist, barking at the cyclist and creating a very real risk that he would impede the travel of the bicycle. The defendants had watched Rocky run the length of the front yard getting as close to cyclists as he could within the boundaries of the electronic fence, which was the only method that they employed to restrain Rocky from going right up to the cyclists. The harm the Rocky caused on this occasion was the very kind of harm that, in my view, Rocky had demonstrated a propensity to inflict.

[33]         I conclude, therefore, that the defendants are liable on the basis of scienter.

[34]         I am also satisfied that the defendants are liable on the basis of negligence. In my opinion, they knew that the only thing that was keeping Rocky from running up to cyclists using the road in front of their property, and likely knocking them from their bicycles, was the electronic fence. It is my view, that a reasonable person would not place reliance solely on such a device to secure their dog and prevent it from causing harm to users of the road, when they were aware of the risk of harm if Rocky got free from the confines of the electronic fence. Unlike a physical fence or a large pen, it is not possible to readily observe that the electronic fence is in good repair.

[35]         Further, the operating manual that the defendants received when they purchased the fence warned them that the fence was a deterrent, not a barrier and advised that there was no guarantee that a pet could be trained to avoid crossing the boundary.

[36]         In order to meet a reasonable standard of care to ensure Rocky was kept within the property would not have required the defendants to incur the expense of fencing the whole of the property. They could have built a large “dog run” that would have provided Rocky with ample exercise room when not on leash, in the company of someone able to restrain him. Alternatively, they could have used a chain for Rocky that would not physically permit him to go beyond the property and onto the roadway.

[37]         Further, I find that having adopted the electronic fence as the only means of preventing their dog from escaping onto the road and charging passers-by, they were negligent in not ensuring that it was working properly by testing it on a frequent basis. While it is not known precisely when the receiver failed to operate, they had not tested it for months. They only checked the transmitter on a daily basis. Even when the defendants replaced the batteries and tested the receiver after the incident they found that did not operate consistently. If they had tested it regularly, it is likely that they would have discovered that it was not safe to rely on the electronic fence system to retrain Rocky.

 


Welcome CFAX Listeners – Dog Bite Injury Law in BC

August 27th, 2012

Earlier today I had the pleasure of being interviewed by CFAX Radio with respect to lawsuits for compensation as a result of Dog Bite injuries in British Columbia.

For those of you looking for more on this area of law you can click here to read a 2004 decision which provides the following useful overview of the legal principles of scienter and negligence which were discussed in today’s interview:

[] The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.  The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis[1997] B.C.J. No. 2053.  In that case the Court observed at para. 9 that the owner of a dog can be found 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.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

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 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.

[] At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

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.  …

[] It can be seen that there are two important differences between liability based on scienter and liability based on negligence.  If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care.  On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity.  It thus appears that for scienter, the mental element is based on a subjective test:  the plaintiff must establish that the defendant actually knew of the dog’s propensity to cause the relevant type of harm.  This is in contrast to liability based on negligence, where an objective test applies.  That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.