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Jan Advocate 2017

52 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE know that such animals are dangerous and strict liability is imposed for damage caused by these animals. An owner who keeps animals mansueate naturae is strictly liable only if the owner was aware of the animal’s dangerous nature before it attacked someone. In application to dog bite cases, scienter imposes strict liability on the dog owner where the injured person can prove that the defendant was the owner of the dog, that the dog had a propensity to bite or cause the type of harm complained of, and lastly that the owner knew of such propensity. Scienter was introduced in British Columbia by Chief Justice Begbie in Nevill v. Laing,6 and has formed the basis of liability in dog bite cases in British Columbia since that time, though a plaintiff may also establish liability against the dog owner in negligence or under the Occupiers Liability Act.7 The core element of scienter is knowledge, in that a successful plaintiff must show that the owner knew of a dog’s propensity to cause damage before the injury. A dog that has no prior history of a violent temperament lacks the necessary propensity to result in liability on its owner. This has given rise to the euphemism of “one free bite” in describing the state of law on liability for dog bites in British Columbia. Previous dog bite cases in British Columbia have turned on the knowledge component, as in order to be successful, a plaintiff has had to have reliable evidence to show not only that a dog had a propensity to bite and attack but also that the owner had actual knowledge about the propensity. These two components are most often where the plaintiff fails: Janota-Bzowska v. Lewis,8 Levesque v. Miko,9 Carr v. Johnston,10 Lewis v. Robinson,11 Taller v. Goldenshtein, 12 and Weeks v. Baloniak.13 In Janota-Bzowska v. Lewis, the seminal case on dog liability in British Columbia, a plaintiff injured by a dog bite was awarded close to $40,000 in damages for her injuries. On appeal, the Court of Appeal for British Columbia dismissed the case on the basis that the actions of the offending dog were unexpected and the knowledge component of scienter had not been established. In Levesque v. Miko, a plaintiff was left with a permanent scar on his face after a bite from a German Shepherd but was unable to succeed, as the dog was not known to be aggressive. Similarly, in Carr v. Johnston, a plaintiff was unable to succeed in a claim for damages caused to her car by a dog on the basis that there was no evidence establishing the temperament or past behaviour of the dog. In Weeks v. Baloniak, despite a dog’s previous documented aggressive behavior to postal workers, the plaintiff mail carrier was unable to prove that the defendants had actual knowledge of the dog’s prior behavior. The plaintiff successfully appealed in Weeks. In Taller v. Goldenshtein, a 9-year-old boy lost the sight in his eye when he was bitten


Jan Advocate 2017
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