A Supreme Court of B.C. judge has found the owners of a dog that bit the face of a one-time friend were not negligent and so not required to pay damages to the victim.
According to a judgment from Justice Maria Morellato, Vancouver woman Linda Evans was not able to prove that the dog’s owners Erin Berry and Sophie Anderson knew that the animal was potentially dangerous.
The ruling was made under the doctrine of scienter, which presumes domesticated animals are harmless and that liability for an attack requires proof that the defendant knew that the animal in question had an inclinationn to cause the type of damage that it did to the plaintiff.
In her ruling, Morellato wrote that Evans went to a dinner party at the home of Berry and Anderson on Nov. 11, 2017, in Vancouver’s West End.
Toward the end of the evening, as the guests were preparing to leave, Evans bent over to pat the dog — Bones — and was suddenly attacked.
The bite led to a significant loss of blood, with the wound being a crescent shape on Evans’ forehead, with a gash on her cheekbone. The doctor who treated her noted that muscle was exposed.
The dog — a three-legged mixed-breed rescue from Thailand — was put down shortly after the attack.
After the breakdown of their friendship, Evans took Berry and Anderson to court, asking that they be found negligent and responsible for loss of earning capacity, loss of housekeeping capacity, costs of future care and special damages.
Berry and Anderson’s defense was that while the attack was unfortunate, Bones did not have a propensity to cause injury. They also argued they were not liable because the injury was not foreseeable.
According to Morellato, the defendants also asserted that Evans “was the author of her own misfortune.”
Court heard that Berry and Anderson had purchased the dog in the spring of 2017 and that it had nipped people and other dogs, leading to it receiving obedience training. The dog also bit Berry’s father while he was being passed a piece of cheese on toast.
“The evidence before me shows that Bones exhibited nipping behavior at the ankles or legs,” Morellato wrote. “There were also some instances of Bones being aggressive toward other dogs. However, Ms. Berry testified that after his training with the Dog Dudes, Bones’ behavior did improve. There was no evidence of aggression toward other dogs or incidents of nipping them following this training.
“Counsel for the plaintiff underscore that the ‘cheese toasty’ incident with Ms. Berry’s father occurred after Bones’ training with the Dog Dudes, and submit this is evidence of a continued propensity (to bite). Having carefully considered the matter, I have concluded that this incident involving Ms. Berry’s father, in the context of the evidence as a whole, does not establish that Bones was a source of danger, or that he had a manifested propensity to bite or cause harm, or that he was ‘accustomed’ or in the habit of doing so. Clearly, while this incident bears careful scrutiny, it cannot be considered in isolation without reference to the evidence in its totality.”
Morellato wrote that because Berry and Anderson had previously engaged a dog behavior expert and that neither a veterinarian or the expert had recommended the dog be muzzled, they had provided a reasonable standard of care. – The Providence