We all love our pets. But, what happens when their animal instincts take over and they attack a person, causing life-altering injuries? Can you be sued as the pet owner?
In Rae v. Gadalla, 2023 BCSC 1398, the plaintiff, Robert Rae, brought an action in negligence and the doctrine of scienter, seeking damages for an injury he suffered when he was bit on the back of his lower left leg in a strata complex elevator by a Yorkshire Terrier named Flex, who belonged to the defendants, Dr. Gadalla and Ms. Abdel-Malik.
On October 12, 2018, Mr. Rae was returning to his suite following his daily workout when he encountered Flex and Ms. Abdel-Malik in the elevator. While there was some dispute as to what occurred, the Court ultimately found that Flex was behaving aggressively and started barking from the moment Mr. Rae got on. As he was about to exit, Flex lunged and bit Mr. Rae without provocation, resulting in, among other things, a “sizeable patch of displaced skin”, a three-month period of temporary partial disability, and a permanent scar. A medical expert opined, almost two years following the incident, that Mr. Rae had returned to his pre-existing level of function and had no permanent disability.
Negligence and Scienter
The owner of a domesticated animal can be liable for an attack in two distinct ways: under the doctrine of scienter and under common law negligence.
The doctrine of scienter presumes that domesticated animals, such as dogs, are harmless. A finding of liability requires proof that a defendant actually knew, prior to the attack, that the animal in question had the propensity to cause the type of damage that it did to the plaintiff. Notably, the knowledge requirement does not necessitate that the animal had actually done the particular kind of harm at issue on a previous occasion – it is sufficient that the defendant had knowledge that the animal had manifested a trait, inclination, or propensity to do that type of harm. In sum, to prove scienter, the plaintiff must establish that:
- the defendant owned the animal;
- the animal had manifested a propensity to cause the type of harm caused; and
- the owner subjectively knew of that propensity.
To succeed in an action based on negligence, the plaintiff must prove that the defendant knew, or ought to have known, that the animal was likely to create a risk of injury to others, and failed to take reasonable care to prevent such an injury. This knowledge element is an objective test, distinct from the subjective knowledge element in the third branch of the scienter test.
Result
In this case, the Court heard evidence from two neutral witnesses about aggressive behaviour by Flex against other residents in the building, prior to the incident in question. One witness, Mr. Tian, recounted an incident in the summer of 2018 when he was bit by Flex while they were riding together in the elevator. The second witness, Mr. Rabey, recalled that Flex lunged at him unexpectedly as they passed one another in a hallway near the strata parkade 12-18 months before the attack on Mr. Rae. These witnesses were crucial to the Court’s finding of liability in both negligence and under the doctrine of scienter, satisfying Justice Milman that the defendants had actual and constructive knowledge of Flex’s propensity to bite.
Mr. Rae sought $30,000 – $35,000 in non-pecuniary damages for the injury. A comparable dog bite case[1] where the plaintiff received $7500 in non-pecuniary damages over 10 years ago, was found to have featured more severe injuries, including posttraumatic stress disorder and surgery a year after the bite. In the result, and in consideration of the “golden years doctrine” where additional loss is assumed for more elderly plaintiffs, the Court awarded Mr. Rae $5000.
Luckily for me, as a cat owner, a cat bite isn’t likely to lead to litigation. If your pet ever shows any signs of dangerous or aggressive behaviour, your obligation as an owner is to take reasonable care to prevent injury to others.
[1] McLean v. Thompson, 2011 BCPC 15
Please contact Cory Song or a member of our Personal Injury Group if you have any questions regarding the above.
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