Animal Instincts – Defending Liability Claims Involving Pet Attacks

2023.11.29 //

Authors: Roger S. Tangry, Senior Associate, and Amy Ko, Articled Student

As much as we love them, when pets behave badly towards others and cause harm, pet owners can be exposed to liability for harm arising out of such conduct.

Claims involving pet attacks can often be more complex and nuanced than they appear on the surface, especially where they involve bodily injury claims such as dog bites, slips and falls, or one pet attacking another. On the surface, these claims may appear as frivolous nuisance claims with simplistic fact patterns. However, there is always a potential risk that such claims can evolve into significant lawsuits involving allegations of emotional harm, psychological injuries, damages for loss of income, loss of future earning capacity, and cost of future care.

Even the most seemingly harmless family pet can be the subject of legal proceedings. The recent case of Rae v. Gadalla, 2023 BCSC 1398, resulted in a finding of liability against the defendant owners of Flex, a feisty Yorkshire Terrier, including a nominal award of damages for bodily injury arising from a dog bite. The court in Rae provided an overview of the applicable legal framework before assessing damages arising from liability.

The case involved allegations that Flex attacked the plaintiff in the elevator while under the care and control of the defendant. Although differing accounts of what transpired were offered as evidence during the trial, and there was no surveillance footage of the incident, the court held that, based on the evidence, Flex had behaved aggressively and attacked the plaintiff without provocation resulting in a bite to his left lower leg which resulted in a three-month period of temporary partial disability and permanent scar.

Negligence and Scienter

In cases involving pet attacks, the plaintiff has the option of advancing a claim under the law of negligence or the doctrine of scienter, or both. While each approach is a legally distinct cause of action, they both involve consideration of a pet’s propensity to do harm.[1]

Pet owners can be held liable for an attack under the doctrine of scienter and under the law of negligence. It is important to treat these two as separate although they often become intertwined. These two approaches are not the same and should not be conflated.[2]

Under the negligence framework, the plaintiff must prove on a balance of probabilities that:

  • the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, including the plaintiff; and
  • the defendant failed to take reasonable care to prevent such injury

The first element is related to foreseeability and the establishment of a duty of care. The second element relates to the breach of the standard of care.[3] The question of whether the defendant pet owners knew or ought to have known that a pet is likely to create a risk of injury is an objective test.[4]

To succeed under negligence, the onus is on the plaintiff to prove that the defendant pet owner knew or ought to have known of the risk of injury, and failed to take reasonable care to prevent their pet from causing such injury.

Under the common law doctrine of scienter, there is a presumption that domesticated animals, such as dogs, are harmless, and liability requires proof that a defendant pet owner actually knew, prior to the events giving rise to a claim, that the animal in question had the propensity to cause the type of damage the plaintiff is alleging.[5]

The analysis under scienter begins with classifying the animal in question as ferae naturae or mansuetae naturae. Animals ferae naturae are never regarded as safe, and liability attaches for the harm they cause without necessitating evidence that the particular individual animal was dangerous. Wild animals who are dangerous by nature, such as bears and lions, generally fall under this category.[6]

Animals mansuetae naturae are animals whose nature are not immediately dangerous, but individually may have a disposition for vicious behavior. Domesticated dogs and cats will generally fall under this category. For animals that fall under mansuetae naturae, a finding of liability under scienter requires the plaintiff to prove on a balance of probabilities that:

  1. the defendant was the owner of the animal;
  2. that the animal had manifested a propensity to cause the type of harm occasioned; and
  3. that the owner of the animal knew or ought to have known of that propensity

(Rae v. Gadalla, 2003 BCSC 1398, para 94).

Liability will only attach if all three elements are proven on a balance of probabilities, a burden which rests with the defendant.

Knowledge on the part of the pet owner that their pet has a propensity to do harm, or to cause the type of harm occasioned, is key to a finding of liability under scienter, and can be either subjective or objective knowledge.[7]

In addition, the harm the animal has a propensity to cause, must be of the same type of harm that the plaintiff suffered. For example, where the evidence has shown that a dog had a prior propensity to attack birds, the second element of scienter cannot be established where harm was caused to a person.[8]

The harm also doesn’t have to be an animal “bite” such that courts have awarded damages for injuries arising from a pet attack resulting in the plaintiff being knocked off his bicycle where it was shown that the dog in question had a propensity to chase after cyclists and bark aggressively.[9]

A pet need not have caused a specific type of harm in the past for scienter to apply, and attributing certain propensities to a dog based solely on its breed requires a solid evidentiary foundation.

Under scienter, it is not necessary that the animal in question had actually done the particular kind of harm on a previous occasion; it is sufficient if, to the defendant’s knowledge, the animal had manifested a trait, inclination or propensity to do that type of harm.[10]

While there are some similarities between the causes of action under negligence and scienter, they are quite distinct especially since negligence does not require the plaintiff to prove that the type of harm they suffered is the same type of harm the animal had a propensity for. Under negligence, the duty of care analysis with respect to foreseeability is more flexible than the second branch of scienter in that the former considers collateral evidence when assessing proximity.

Lastly, while most claims will be brought under both causes of action to increase the likelihood of success, it is possible for a claim to fail on one cause of action yet succeed on another.

The Findings in Rae v Gadalla

In Rae, the court assessed evidence from key witnesses, both of whom testified about past aggressive behavior of Flex, prior to the incident giving rise to the lawsuit, including an earlier biting incident and aggressive lunging at neighbors. The testimony of these witnesses was central to the court’s reasons for finding liability under both negligence and scienter as the evidence established that the defendants had actual and constructive knowledge of Flex’s propensity to cause harm and be aggressive towards others.

The Plaintiff in Rae brought a claim for non-pecuniary damages in the range of $30,000 to $35,000. After comparing his claim to other past decisions, some of which involved more serious injuries (including psychological harm), Rae was awarded nominal damages of $5,000 taking into consideration his “Golden Years” claim as an elderly plaintiff.

Claim investigation strategies

When defending a pet attack claim under either or both causes of action, it is important to consider the following elements when investigating claims at an early stage:

  • Breed and lineage of the pet in question
  • Training and upbringing
  • History of behavioral issues
  • Prior incidents involving attacks
  • Collateral witnesses (neighbors, pet sitters, other pet owners)
  • Circumstances giving rise to the incident
  • Prior behavior of the plaintiff towards the pet or other pets
  • Prior claims brought by the plaintiff against other pet owners
  • Conduct discoveries of the parties early before memories fade

Investigating these claims early and being alert to the potential for these claims to blow up into complex lawsuits will help your legal team to accurately assess the risk of liability and provide prudent advice with respect to defending against liability.

[1] Janota-Bzowska v. Lewis, (1997), 43 B.C.L.R. (3d) 352 (C.A.)

[2] Draper v Hodder, [1972] 2 All E.R. 210 (C.A.)

[3] Garside v. Dougan, 2022 BCSC 799

[4] Evans v. Anderson, 2023 BCSC 143

[5] Fridman’s The Law of Torts in Canada, 4th ed (Toronto: Carswell, 2022) at p. 247 and 277

[6] Janota-Bzowska at para. 11

[7] Rae v. Gadalla, 2003 BCSC 1398, para 94

[8] Garside at para. 94

[9] Gallant v. Slootweg, 2014 BCSC 1579

[10] Evans at para 109.

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