What are your rights and defences when attacked by an animal?
1) What are the defences available to the dog owner?
2) What are the range of damages available for general damages?
Where someone is bitten by an animal, there is strict liability against the owner. Damages are awarded based on severity of the injury. Any damages can be reduced by the contributory negligence of the person claiming against the animal.
Summary of the Law
Dog Owners’ Liability Act, RSO 1990, c D.16
Liability of owner
- (1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
Extent of liability
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.
Contribution by person at fault
(4) An owner who is liable to pay damages but is also entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages.
The owner of the dog who is liable and that liability is held to a strict standard. Therefore, dog owners are strictly liable for any damages or injuries caused by their dogs. Instead, Strict liability only requires proof of the act of the offence. It does not require proof of intent, negligence or fault of the owner.
The law limits the extent of the liability (therefore reducing damages) due to contributory negligence.
For example, in Wilk v. Arbour, the Plaintiff was walking her partner’s dog with his consent. The dog began to have a seizure and fell down an icy slope. The Plaintiff went after the dog to help. She fell down the slope and collided with the dog who in turn bit her right thumb off. The court decided that it was plain to see and clear that she was exercising dominion and control over the dog similar to that which would be exercised by the actual owner. It was held that the word possesses in the definition of “owner” under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal. Therefore, the Plaintiff’s action was dismissed under the DOLA.
Under the Plantiff’s action for Negligence, the court held up the doctrine that the rule of strict liability doctrine of scienter does not abridge other general principles of tort liability such as Negligence. For a person to be held negligent, it must be found that “the owner of the particular animal with its respective characteristics, in the particular circumstances, could have reasonably foreseen the danger could result in damage”. The court decided that the Plaintiff’s decision to leave the path and follow the dog instead of waiting or seeking help, interrupted the chain of causation and was an intervening act. Therefore, the defendant’s alleged negligence was not the proximate cause of the Plaintiff’s injury.
In regards to range of general damages, the courts have awarded a wide range of general damages in dog bite cases. In Zhan v. Kumar, the plaintiff was awarded $35,000.00 in general damages for dog bites that resulted in cuts, scarring, numbness, pain, depression and sleeplessness. He required stitches and two operations on his face. In Meloche v. Bezaire, the court assessed general damages at $30,000.00 for injuries that included two large bite wounds and three puncture wounds. The Plaintiff had to rest and was unable to perform household tasks or engage in pastime activities due to pain and fear of dogs.
Analysis and Conclusion
Even though this liability is a strict liability based on DOLA provisions, there still exists the defences of Contributory Negligence on part of the Plaintiff which can reduce owner’s extent of liability and therefore damages awarded.
Special care must be taken in case of owner-owner cases where it can be established that the Plaintiff had effective control and was in possession of the dog right before the incident occurred. The Plaintiff may be able to rely on common law claim of Negligence if the circumstances of the case permits.
Contact an Toronto Dog Bite Lawyer!
If you or a loved one has suffered a dog bite, please contact us at 1-844-888-8864 and speak to an experienced dog bite lawyer for a free consultation.
Ross Mirian, Barrister and Solicitor
Mahnoosh Montazeri, Articling Student