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Dog Bites - Remedies Available Through Civil Action in Nova Scotia

Victor Lewin - Monday, January 07, 2013

The frequency of dog bites and attacks have increased in media over the past couple of years. Whether there are more bites are occurring or whether they are just now receiving increasingly more media coverage is unknown. Certainly there has been more attention to the requirement that owners control their dogs and to the by-laws that govern the consequences of a failure to do so.

The injuries that the victims of dog bites sustain can have serious, long lasting effects, including chronic pain, scarring, physical limitations and psychological and emotion effects. A review of the case law suggests that an individual who is bite by a dog can pursue a civil suit under one of two principles of law: the doctrine of Scienter and/or the law of negligence.

The doctrine of Scienter has sometimes been referred to as the idea that each dog gets one bite, however this has been modified with the passage of time. Scienter relates to the propensity of a dog to be "mischievous" and cause injury, and the knowledge of such propensity. Initially, there were three principles that plaintiff had to establish to be successful in an action for Scienter:

1. that the defendant was the owner of the dog;
2. that the dog had manifested a propensity to cause the type of harm occasioned; and
3. that the owner knew of that propensity.

The doctrine of Scienter placed a significant onus on the plaintiff to show that the owner of the dog knew of the propensity of the dog to cause injury. Over time, legislation was enacted to ease the burden. The Halifax Regional Municipality Charter, SNS 2008, c 39 [the Charter] eliminates the requirement that plaintiffs prove knowledge of the propensity on the part of the owner. The Charter provides authority to enact by-laws related to dog ownership and specifically, at section 197, states:

Proof at trial Upon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, such dog, it is not necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog. 2008, c. 39, s. 197.

Therefore, it appears that in an action under the doctrine of Scienter, it is no longer required to show knowledge on the part of the dog owner of the dog's propensity for injury. The plaintiff must only show that the defendant owned the dog in question and that the particular dog had a propensity to cause the type of harm that occurred. Such evidence may take the form of statements from neighbours and others that have knowledge of the dog and previous complaints made about the dog.

Negligence

In addition to a claim under the principle of Scienter, the victim of a dog bite case may also have a claim under the law of negligence.

Essentially, a civil suit resulting from a dog bite framed in negligence will be comprised of the basic elements relevant in any negligence claim. The plaintiff must show that the owner of the dog fell short of the standard of care owed to others to prevent the dog from causing harm. Many circumstances will come into play, including the efforts of the owner to control and restrain the dog, the particular mechanism used to control the dog (i.e. crates, leashes, etc.) and signage warning of the presence of the dog. Similarly to the doctrine of Scienter, the nature of the dog itself will also be a relevant factor in determining the standard of care required of owners.

Certainly, the best way to avoid a civil suit related to dog bites is to properly restrain animals, particularly around strangers and small children. The extent of restraint will depend on the circumstances and characteristics of the particular dog. Larger dogs with a greatly propensity to be aggressive, even in play, will require a greater level of restraint and supervision than smaller and/or somewhat more docile animals. Additionally, efforts to properly train and control an animal speak to the standard of care taken by the owners.

Home insurance is crucial, particularly so for owners of animals that have the potential to do damage. Most Home Owners' insurance policies provide coverage for injury caused by dogs, provided there is a legitimate negligence claim. That being said, each policy is different and dog owners are encouraged to read their policy carefully and make inquires as to their coverage for injury caused by pets.

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