Welcome CFAX Listeners – Dog Bite Injury Law in BC
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,  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.