05 Feb Cyclist Knocked Over and Injured by Dog
In the case of Gallant v. Slootweg, 2014 BCSC 1579, the sixty-one year old Plaintiff was riding his bicycle in front of the Defendants’ yard when the Defendants’ Doberman ran from their property, unimpeded by the electronic fence that was intended to keep it within the property, and knocked the Plaintiff from his bicycle. The Plaintiff suffered injuries as a result of the fall from his bicycle, including a fracture of his left clavicle and fractures of his fifth and sixth ribs.
The Plaintiff sued the Defendant’s for damages, as a result of the injuries he sustained. He based his claim on the doctrine of “scienter”, as well as negligence. The Plaintiff claimed that the Defendants knew, or ought to have known, that their dog had a propensity to cause this kind of harm and that they were liable under the doctrine of scienter for the injuries he sustained. The Plaintiff also claimed that the Defendants were negligent in relying on the electronic fence to restrain their dog, and in failing properly to test and maintain the electronic fence. The Judge agreed with the Plaintiff on both counts.
Scienter is a long-standing doctrine of law in which the Plaintiff has to show that the owner knew or ought to have known of the dog’s propensity for causing harm. The Plaintiff does not have to show that the dog actually caused the particular harm in the past.
The Judge was satisfied that:
- the dog had a propensity to chase cyclists while barking and got as close to them as he could within the electronic restrain to which he was ordinarily subject, and to follow them as they traversed in front of the Defendants’ yard;
- the dog actions constituted a propensity to cause harm to cyclists by knocking them from their bicycles if he was not restrained within the yard;
- the Defendants knew, or ought to have known, that if not restrained, the dog would run right up to a cyclist, barking at the cyclist and creating a very real risk that he would impede the travel of the bicycle.
The harm the dog caused on this occasion was the very kind of harm that the dog had demonstrated a propensity to inflict. The Judge concluded that the Defendants were liable on the basis of scienter.
The Judge also found the Defendants liable on the basis of negligence. In his opinion, the Defendants knew that the only thing that was keeping the dog from running up to cyclists using the road in front of their property, and likely knocking them from their bicycles, was the electronic fence. A reasonable person would not place reliance solely on such a device to secure their dog and prevent it from causing harm to users of the road, when they were aware of the risk of harm if the dog got free from the confines of the electronic fence.
Further, the operating manual that the Defendants received when they purchased the fence warned them that the fence was a deterrent, not a barrier and advised that there was no guarantee that a pet could be trained to avoid crossing the boundary.
Having adopted the electronic fence as the only means of preventing their dog from escaping onto the road and charging passers-by, the Defendants were negligent in not ensuring that it was working properly by testing it on a frequent basis.
The injuries that the Plaintiff suffered in this incident rendered him disabled from doing any kind of physical work for three months. Within five months he was able to resume all his pre-injury activities. The Judge awarded judgment against the Defendants in the following amounts:
|Past loss of earning capacity||$13,068|