Dog bite advice please
Apr 26th 2009 | 4:08 am
#16
Settled.
Joined: Jul 2006
Posts: 3,286
From: St. Albert. AB.
Re: Dog bite advice please
i've asked our legal expert almost canadian (dtle) for a look, see what he thinks.
Apr 26th 2009 | 4:21 am
#17
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From: South of Calgary
Re: Dog bite advice please
From a criminal law perspective you will be in the hands of the RCMP/Animal agencies. I have no idea what facts would have to obtain before they decided that a prosecution was appropriate.
From a civil claim perspective, the law of negligence would apply, unless there is a statutory basis for such a claim in B.C. I have never looked into this in Canada but I assume that it would be very similar to England and Wales. You would need to show that the owner had been negligent. From the facts given (dog tied up, etc.) it would be difficult to see what more they could have done, did they know that young children were likely to be in the area, etc? The biggest hurdle such cases face is showing the owners knew of the dog's propensity to bite. The first bite is allowed, any subsequent bites are not.
The owners would no doubt state that Fido had never indicated such a propensity before (growling is not sufficient) and you will have the burden of proof (it will be for you to prove that Fido had bitten before, not for them to prove that s/he hadn't).
Costs are recoverable in Provincial Court (small claims court) actions in Alberta, I don't know about B.C. Don't assume that it is cost risk free by doing so.
I will be happy to look into this further and provide you with chapter and verse, should you wish me to do so, at no charge of course (as I would like to know the answer anyway)
From a civil claim perspective, the law of negligence would apply, unless there is a statutory basis for such a claim in B.C. I have never looked into this in Canada but I assume that it would be very similar to England and Wales. You would need to show that the owner had been negligent. From the facts given (dog tied up, etc.) it would be difficult to see what more they could have done, did they know that young children were likely to be in the area, etc? The biggest hurdle such cases face is showing the owners knew of the dog's propensity to bite. The first bite is allowed, any subsequent bites are not.
The owners would no doubt state that Fido had never indicated such a propensity before (growling is not sufficient) and you will have the burden of proof (it will be for you to prove that Fido had bitten before, not for them to prove that s/he hadn't).
Costs are recoverable in Provincial Court (small claims court) actions in Alberta, I don't know about B.C. Don't assume that it is cost risk free by doing so.
I will be happy to look into this further and provide you with chapter and verse, should you wish me to do so, at no charge of course (as I would like to know the answer anyway)
Apr 26th 2009 | 8:23 am
#18
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Joined: Jul 2006
Posts: 3,286
From: St. Albert. AB.
Re: Dog bite advice please
me too. i would say this is a very good answer and i would not disagree with any of it, only the thought that as canada is more litigious than the UK, would the burden of proof possibly be with the owner, and i take it we are working on the balance of probabilities, not beyond reasonable doubt.
Apr 26th 2009 | 8:38 am
#19
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From: Cochrane, Alberta
Re: Dog bite advice please
The first thing that came to my mind is that you will not ever really know if that dog has bitten anyone before, without doing a lot of research because, I presume, these owners are not from "round here", ie, wherever it is you were visiting. You said the dog belong to paying guests and therefore normally lives in another town or province.
Therefore, if no action is likely, I would at least ensure you have their full details and ensure that your complaint is also lodged or copied with their own police force in their home town. And of course, they, their local force may already have (an)other complaint(s) on record already.
Nasty bite. You have my sympathies. I have the scars and marks of 14 stitches from dog bites when I was about 10. That did instill a fear and distrust of all woofing fellas for many a year!
Therefore, if no action is likely, I would at least ensure you have their full details and ensure that your complaint is also lodged or copied with their own police force in their home town. And of course, they, their local force may already have (an)other complaint(s) on record already.
Nasty bite. You have my sympathies. I have the scars and marks of 14 stitches from dog bites when I was about 10. That did instill a fear and distrust of all woofing fellas for many a year!
Apr 26th 2009 | 9:41 am
#20
Joined: Feb 2006
Posts: 10,630
From: Red Deer, Alberta
Re: Dog bite advice please
I would be very angry is someones dog had bitten ANY of my family. I'm glad your son is on the mend. I would also be interested to know wether this dog has been reported on for aggression/biting before. If it has then a simple warning IMHO is not enough - the dog should be muzzled. If this is a first offence then the least that should happen is a warning and a condition that the dog should be muzzled whenever outside - even if it's in it's own yard - the dog could escape.
If it was my dog that had aggressivley bitten someone, who just happened to be near/not tormenting/teasing/playing etc then I would be heartbroken but my dog would be euthanised.
If it was my dog that had aggressivley bitten someone, who just happened to be near/not tormenting/teasing/playing etc then I would be heartbroken but my dog would be euthanised.
Apr 26th 2009 | 10:09 am
#21
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From: montreal
Re: Dog bite advice please
Ok guys, I need some advice/perspective, as I fear that I'm too angry to think straight right now... I've been stewing over this for a couple of days, so sorry if this turns out long.
On Thurs evening our 2 boys were playing round at a friend's house, when my youngest (6 years old) got viciously bitten in a completely unprovoked attack by a large dog that belongs to some paying guests at the property he was visiting. The injury occurred when our son ran past the dog that was tethered on a long line, outside the property. The dog gave no warning and my son just happened to be running past, not towards it, and the first he knew of a dog even being there was feeling the bite on the *back* of his leg.
I've since learned that the dog had a bone next to it, but my son was running by, not towards it, so it wasn't as though it had any obvious reason to feel threatened. I would say that extreme a guarding reaction constitutes "dangerous", rather than "normal" dog behaviour, wouldn't you? We have since found out that the dog has growled at my friend's husband before now, but obviously we didn't know this beforehand or my boys would never have been round there!!!
The wound was pretty deep and 3.5cm long, requiring 6 stitches ( http://www.facebook.com/album.php?ai...9&l=d5421a91cf )
My son is surprisingly ok about it. He was very brave, although in absolute agony, and he says he doesn't want the dog destroyed, but we're still looking into what we can do about this dog because it's obviously very dangerous. The owners seem totally unconcerned, which is another reason why we're determined to see how far we can take this. Not from a revenge point of view, but because I can see they think it's no big deal, which makes it likely to happen again in my eyes. In 2 days they have made no contact, or apology, or even any little gift for our son... Quite frankly I'm totally disgusted that they can think an injury like that (see pic) is no big deal...not worth acknowledging...
We've reported the incident to the local RCMP who have the authority in this case, in the absence of any local Bylaws about dangerous dogs. The RCMP have given a case number and said that they will contact the owners and the SPCA/animal control officer, but I'm worried that they will take the stance that this is a "first offence" (if the owners can be believed?) and that the fact that the dog's owners are not taking it seriously won't be of any consequence, which just feels SO WRONG!!! :curse:
I know that taking the law into our own hands is not the answer, but at the moment I feel like leaving the dog alone, but being a firm believer in the saying that "there are no bad dogs, just bad owners" I personally want to go and kick the LIVING SH*T out of the dog's owners :curse::curse::curse: Can anyone else give me something more constructive to focus on until we hear back from the RCMP...assuming we do....please...??
If you made it this far, thanks for reading!
On Thurs evening our 2 boys were playing round at a friend's house, when my youngest (6 years old) got viciously bitten in a completely unprovoked attack by a large dog that belongs to some paying guests at the property he was visiting. The injury occurred when our son ran past the dog that was tethered on a long line, outside the property. The dog gave no warning and my son just happened to be running past, not towards it, and the first he knew of a dog even being there was feeling the bite on the *back* of his leg.
I've since learned that the dog had a bone next to it, but my son was running by, not towards it, so it wasn't as though it had any obvious reason to feel threatened. I would say that extreme a guarding reaction constitutes "dangerous", rather than "normal" dog behaviour, wouldn't you? We have since found out that the dog has growled at my friend's husband before now, but obviously we didn't know this beforehand or my boys would never have been round there!!!
The wound was pretty deep and 3.5cm long, requiring 6 stitches ( http://www.facebook.com/album.php?ai...9&l=d5421a91cf )
My son is surprisingly ok about it. He was very brave, although in absolute agony, and he says he doesn't want the dog destroyed, but we're still looking into what we can do about this dog because it's obviously very dangerous. The owners seem totally unconcerned, which is another reason why we're determined to see how far we can take this. Not from a revenge point of view, but because I can see they think it's no big deal, which makes it likely to happen again in my eyes. In 2 days they have made no contact, or apology, or even any little gift for our son... Quite frankly I'm totally disgusted that they can think an injury like that (see pic) is no big deal...not worth acknowledging...
We've reported the incident to the local RCMP who have the authority in this case, in the absence of any local Bylaws about dangerous dogs. The RCMP have given a case number and said that they will contact the owners and the SPCA/animal control officer, but I'm worried that they will take the stance that this is a "first offence" (if the owners can be believed?) and that the fact that the dog's owners are not taking it seriously won't be of any consequence, which just feels SO WRONG!!! :curse:
I know that taking the law into our own hands is not the answer, but at the moment I feel like leaving the dog alone, but being a firm believer in the saying that "there are no bad dogs, just bad owners" I personally want to go and kick the LIVING SH*T out of the dog's owners :curse::curse::curse: Can anyone else give me something more constructive to focus on until we hear back from the RCMP...assuming we do....please...??
If you made it this far, thanks for reading!
Good luck and I wish you well in whichever route you decide to follow.
SARAH
Apr 26th 2009 | 10:24 am
#22
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From: South of Calgary
Re: Dog bite advice please
me too. i would say this is a very good answer and i would not disagree with any of it, only the thought that as canada is more litigious than the UK, would the burden of proof possibly be with the owner, and i take it we are working on the balance of probabilities, not beyond reasonable doubt.
The other issue to consider is an assertion by the owner (the defendant if proceedings are issued) that the parents are responsible due to lack of supervision. The defendant is likely to allege this in their defence and to third party the parents (meaning that if the plaintiff is successful against the defendant, the defendant can then attempt to lay some or all of the blame on the parents.) The plaintiff would then have to decide whether to add the parents to his claim. This is a tactic that the defendant will use to persuade the plaintiff to go away. The main reason being that the plaintiff will usually be represented by one of his parents (known as a Next Friend). However, a Next Friend cannot be in a conflict of interest position with the plaintiff and, therefore, someone other than the parents will have to be the Next Friend. A lawyer could do this but would be unlikely to want to do so. Food for thought.
Last edited by Almost Canadian; Apr 26th 2009 at 10:45 am.
Apr 26th 2009 | 10:38 am
#23
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Joined: Jan 2006
Posts: 0
Re: Dog bite advice please
Even the most well behaved dog can bite especially if it involves food, such as bone in this case.
The authorities likely wont/can't do anything unless the dog has some sort of history with biting or aggressive behavior on record.
One thing I would make sure of is that the dog is up to date with its rabies vaccine.
The authorities likely wont/can't do anything unless the dog has some sort of history with biting or aggressive behavior on record.
One thing I would make sure of is that the dog is up to date with its rabies vaccine.
Apr 26th 2009 | 10:38 am
#24
Settled.
Joined: Jul 2006
Posts: 3,286
From: St. Albert. AB.
Re: Dog bite advice please
In a civil claim, the burden of proof (on the balance of probabilities) is always with the person alleging, usually the Plaintiff.
The other issue to consider is an assertion by the owner (the defendant if proceedings are issued) that the parents are responsible due to lack of supervision. The defendant is likely to allege this in their defence and to third party the parents (meaning that if the plaintiff is successful against the defendant, the defendant can then attempt to lay some or all of the blame on the parents. The plaintiff would then have to decide whether to add the parents to his claim. This is a tactic that the defendant will use to persuade the plaintiff to go away. The main reason being that the plaintiff will usually be represented by one of his parents (known as a Next Friend). However, a Next Friend cannot be in a conflict of interest position with the plaintiff and, therefore, someone other than the parents will have to be the Next Friend. A lawyer could do this but would be unlikely to want to do so. Food for thought.
The other issue to consider is an assertion by the owner (the defendant if proceedings are issued) that the parents are responsible due to lack of supervision. The defendant is likely to allege this in their defence and to third party the parents (meaning that if the plaintiff is successful against the defendant, the defendant can then attempt to lay some or all of the blame on the parents. The plaintiff would then have to decide whether to add the parents to his claim. This is a tactic that the defendant will use to persuade the plaintiff to go away. The main reason being that the plaintiff will usually be represented by one of his parents (known as a Next Friend). However, a Next Friend cannot be in a conflict of interest position with the plaintiff and, therefore, someone other than the parents will have to be the Next Friend. A lawyer could do this but would be unlikely to want to do so. Food for thought.
Apr 26th 2009 | 10:41 am
#25
half a century
Joined: Mar 2008
Posts: 10,222
From: Sarf Lundun to East Van :)
Re: Dog bite advice please
In my experience, some people (thankfully not all) with large dogs that roam around the streets, tend to think that because their dog is friendly to them - its fine to let it wander the streets and harrass other people because it doesn't occur to them, or else they refuse to consider, that the dog might not be friendly to other people. This type of person is often extremely defensive if you dare to criticize them or their dog. I am wondering if you are dealing with this type of person and if so, then I would think it extremely normal that they would make no contact with you and avoid even talking to you about it. I don't know what to suggest, but I think that if you do go to talk to them, it might not end up well --- if they are anything like my neighbours, they will just say it was your son's fault and it will end up in a shouting match!
Apr 26th 2009 | 10:45 am
#26
Concierge
Joined: Apr 2001
Posts: 47,664
Re: Dog bite advice please
Of course, the attack and bite should have been reported to the authorities immediately, if not by you at least by the hospital who cared for your son. I do hope that we has taken to the emergency room for treatment. Also any and all medical costs should be borne by the dog's owner and by the insurance company who covers the property of the friend who is taking in paying guests. The dog should be quarantined until it is determined that your son has not contracted rabies and that the dog is current on all immunizations and shots.
Apr 26th 2009 | 10:49 am
#27
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From: South of Calgary
Re: Dog bite advice please
The danger for A is a finding by the court that liability for the incident rests with C, as C is not part of A's proceedings. A would receive notification of B's claim against C, and that stage A would have to decide whether to have C added to his claim, i.e., sue both B and C. - not a nice choice for a son. B would hope that by making such a claim against C, A will drop the claim against B. Hopefully that makes sense.
Apr 26th 2009 | 10:58 am
#28
Settled.
Joined: Jul 2006
Posts: 3,286
From: St. Albert. AB.
Re: Dog bite advice please
A (the boy) sues B (the owner). B defends A's claim and then issues proceedings against C (the parents) stating, I am not liable, but if I am some or all of that liability should be borne by C because, had C been supervising A properly, the incident would never had happened.
The danger for A is a finding by the court that liability for the incident rests with C, as C is not part of A's proceedings. A would receive notification of B's claim against C, and that stage A would have to decide whether to have C added to his claim, i.e., sue both B and C. - not a nice choice for a son. B would hope that by making such a claim against C, A will drop the claim against B. Hopefully that makes sense.
The danger for A is a finding by the court that liability for the incident rests with C, as C is not part of A's proceedings. A would receive notification of B's claim against C, and that stage A would have to decide whether to have C added to his claim, i.e., sue both B and C. - not a nice choice for a son. B would hope that by making such a claim against C, A will drop the claim against B. Hopefully that makes sense.
Apr 26th 2009 | 11:22 am
#29
Lost in BE Cyberspace
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From: South of Calgary
Re: Dog bite advice please
OK, here is the law in Ontario: http://www.canlii.org/eliisa/highlig...anlii7514.html
Such legislation does not exist in Alberta and the law in Alberta is set out in the case of Bates (Next Friend of) v. Horkoff. The relevant portion of the judgment is set out below (moderators don't panic it is a public document but I can't find a link to other other than through a paying prescription type):
It is well established at common law that an owner of a dog is strictly liable for injuries caused by it if the animal was mischievous or vicious and the owner knew of these propensities... The owner, based on his scienter (knowledge), is absolutely liable for any damage caused by the dog, notwithstanding that generally the common law recognizes that it is not in the ordinary nature of a dog to injure mankind.
However, the liability of a dog owner for damage caused by his dog does not necessarily have to be founded on the rule of strict liability for dangerous animals. Rather, such liability may be established in a negligence action.
Martland J., in the case of Caine Fur Farms Ltd. v. Kokolsky, supra, sets out the requirements for the negligence action as follows, at p. 317:
The liability of a dog owner for damage caused by his dog did not necessarily have to be founded on the rule of strict liability relating to the keeping of dangerous animals. It might be established in negligence if, in the circumstances, a duty to take care in relation to the dog existed and there had been a breach of it. This proposition was recognized by the House of Lords in Fardon v. Harcourt-Rivington, [(1932), 146 L.T. 391], and it is stated by Lord Atkin in that case, at p. 392, as follows:
But it is also true that, quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour-the ordinary duty to take care in the cases put upon negligence.
This decision was later followed in Alberta by McDermid J.A. in Raisbeck v. Desabrais, supra.
The negligence action was also the subject of extensive and helpful comment in the British case of Draper v. Hodder, supra.
In that case Davies L.J. refers to the existence of the negligence action, at p. 214:
. . . certain modern authorities show clearly that an owner or keeper of an animal may quite apart from the scienter rule be liable for damage done by that animal if the owner or keeper puts it or allows it to be in such a position that it is reasonably foreseeable that damage may result. . .
Davies L.J. then goes on, at p. 214-5, to refer to Sycamore v. Ley (1932) 147 L.T. 342, where Greer S.J. said at p. 344-5:
Liability for damage caused by the bite of a dog is not, in my judgment, confined to the cases where it has to be made out that a dog had, by reason if its ferocious character known to the defendant, to be taken out of the class of tame animals and put into the class of wild animals. . . .
. . . that is not the end of his liability. He may, in my judgment, be liable for the conduct of a dog which has not been taken out of the category of tame animals if he puts it in such a position and in such circumstances as render it likely that the dog will get excited, will lose its temper, and will cause damage to people lawfully passing along the highway; . . .
Davies L.J. then, at p. 215, refers to Searle v. Wallbank, [1947] All E.R. 12, where Lord du Parcq places two qualifications upon a claim in negligence, at p. 21:
. . . first, that where no such special circumstances exist negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do some dangerous act contrary to its ordinary nature, and secondly, that, even if a defendant's omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded, in the absence of special circumstances, as being directly caused by such negligence.
The decision of Edmund Davies L.J. in Draper v. Hodder, supra, at p. 219 states it as follows:
The defendant's knowledge of 'the nature of the beast' which is basic to 'scienter' liability is also directly relevant both to the question of whether he was negligent at all and furthermore, if he was, whether he ought reasonably to have foreseen the damage which in fact resulted therefrom. That is not, of course, the same as saying that proof of 'scienter' is indispensable in an action for negligence. As Pearson LJ put it in Ellis v. Johnstone, [ [1963] 1 All E.R. 286, at p. 297]:
'For the action of negligence, it is sufficient if the defendant knew, or ought to have known, of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required.'
In Sgro v. Verbeek, supra, Craig J. cites with approval the explanation by Davies L.J. that the "special propensity" or "special circumstances" will depend upon the facts of each individual case. Similarly, in the case of Gill v. MacDonald, supra, MacDonald J. confirms Draper v. Hodder, supra, and then goes on to say, at p. 254:
. . . For the action of negligence, all that is necessary to prove is that the owner knew, or ought to have known, of the existence of the danger, which need not arise from the vicious propensity of the animal although, as stated in Draper, perhaps some "special propensity" or "special circumstances" are required, and, as indicated there, the answer to that question must depend on the particular facts of each individual case.
In summary, could the owner of the particular animal, with its particular characteristics, in the particular circumstances, have reasonably foreseen the danger that could result in damage.
The law in B.C is set out here: http://www.canlii.org/eliisa/highlig...canlii377.html
And more recently here:http://www.canlii.org/eliisa/highlig...08bcpc234.html
HTH
Apr 26th 2009 | 11:39 am
#30
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Posts: 1,281
From: Valemount, BC, Canada
Re: Dog bite advice please
In my opinion it is not good behaviour for a pet dog to exhibit such extreme food-guarding... A well trained and well behaved dog would allow a human to take food away while he/she is eating, without biting. If it does not, I wouldn't call it well behaved, but that is just my opinion. I would say, at best, that could be described as a "usually well behaved dog, but with some serious mental issues that need urgent addressing before someone gets hurt."
