What happens if you have been bitten by a dog? What are the legal consequences for the dog owner? In British Columbia, a plaintiff who has been bitten by a dog can establish liability against the dog owner under the scienter doctrine, through negligence, or pursuant to the Occupiers Liability Act.
Under scienter, the law has developed to allow dogs “one bite free”. This is because it must be proven that the dog has a propensity for aggression. The law presumes that dogs are not naturally dangerous and that an owner should not be liable for the dog’s aggressive behaviour unless the owner was aware of such aggressive behaviour.
Scienter places strict liability on the dog owner only if the plaintiff can establish the following three components:
- the identity of the dog owner;
- the dog had manifested a propensity to attack or bite mankind; and
- the dog owner knew of their dog’s propensity.
The Court applied scienter in Prasad v Wepruk, 2004 BCSC 578 [Prasad]. In Prasad, a 77-year-old mailman was viciously attacked by a bouvier dog. The Court used the testimony of neighbours as evidence to determine that the dog had a propensity for aggression by appearing vicious while snarling and growling at the neighbours when they passed by. The Court concluded that the owner had knowledge of this propensity. As a result, the dog owner was liable.
If a plaintiff cannot establish the three requirements for scienter, the plaintiff can establish negligence on the part of the dog owner or the owner of the property where the injury took place if the plaintiff can prove:
- the dog owner knew or ought to have known that the dog was likely to injure someone; and
- the dog owner failed to take reasonable steps to prevent the injury.
In other words, was the dog attack reasonably foreseeable? In many cases, the courts determine the dog’s action was unexpected or that there was no evidence of the dog’s past aggression.
An action for damages may also be brought by a plaintiff pursuant to the Occupiers Liability Act. Similar to negligence, the plaintiff must establish that the dog owner or property owner knew or ought to have known that the dog was likely to be a risk, and that the owner failed to take reasonable steps to prevent such risk.
Other provinces have stricter laws respecting dog bites. In Ontario, once ownership of the dog is proven, the owner is liable for all injuries caused by the dog regardless of the owner’s knowledge of their dog’s aggressive propensity. In 2006, stricter laws were proposed in BC. The proposed laws would have removed the knowledge requirement, essentially making the scienter doctrine inapplicable. However, these laws were not passed. Thus, the “one bite free” principle prevails in BC.