Dog Bite (Tort)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	597
Page Categories:	[Personal Injury], [Tort Law]
Citation:	Dog Bite (Tort), CLNP 597, <7g>, retrieved on 2024-11-22
Editor:	Smcgrory
Last Updated:	2022/06/29

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Dog Owners' Liability Act, R.S.O. 1990

2 (1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. R.S.O. 1990, c. D.16, s. 2 (1).

(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section. R.S.O. 1990, c. D.16, s. 2 (2).

(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (3).

(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (4).

3 (1) Where damage is caused by being bitten or attacked by a dog on the premises of the owner, the liability of the owner is determined under this Act and not under the Occupiers’ Liability Act. R.S.O. 1990, c. D.16, s. 3 (1).

(2) Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable under section 2 unless the keeping of the dog on the premises was unreasonable for the purpose of the protection of persons or property. R.S.O. 1990, c. D.16, s. 3 (2).

McKinlay v Zachow, 2018 ABQB 365 (CanLII)

General Damages

[77] Ms. McKinlay claims general damages in the range of $40,000 to $45,000, relying on the Ontario cases of Moretto v Nicolini-Femia, 2017 ONSC 3945 and Zhan v Kumar [2008] OJ No 1102, (reconsidered in regards to costs at [2008] OJ No 1301). Both are cases in which a dog bit the face of the plaintiff. In both cases, the Court awarded general damages for the physical injury at what would be approximately $40,000 when adjusted for inflation.

[78] In Moretto, the plaintiff suffered a dog bite to her face requiring 10 stitches. The medical evidence was that there would usually have been more sutures for a wound this size, but fewer sutures were used because the wound needed to drain. She suffered significant scarring that was immediately visible and which worsened over time because the dog bite damaged blood vessels interrupting blood flow. The scar was 2.1 cm, postage stamp sized, with three separate limbs. There was hyperpigmentation and pin cushioning from the damaged blood vessels on the scar. The evidence was that neither surgical or laser treatment would improve it. She was treated for two years with topical creams and steroid injections to reduce puffiness and redness. She also suffered significant emotional and social impact. She was awarded $45,000 in general damages - $40,000 for the physical injury and $5000 for the psychological component.

[79] In Zhan, the plaintiff suffered multiple cuts on both cheeks and the nose area; many of which healed well. However, there was a cheek laceration that required stitches and two surgeries. He also suffered from residual numbness, pain, and depression; he indicated that his depression led to a marital separation. He also developed significant fear of dogs that lead to his inability to return to work. He was awarded $35,000 in general damages.

[80] There are numerous reported dog bite cases, with varying damage awards between $5,000 and $55,000. I will review a selection of them.

[81] In Wattier v Draper (1988), 1988 CanLII 7226 (MB QB), 52 Man R (2d) 125 (QB), the plaintiff child suffered a severe mauling, requiring 50 sutures and multiple surgeries. The resulting scars, measuring 22 cm, were prominent and visible. She suffered no permanent emotional or psychological distress. She was awarded general damages of $30,000.

[82] In Strom v White (1994), 1994 CanLII 7342 (ON SC), 21 OR (3d) 205 (Gen Div) the plaintiff child suffered three cuts requiring sutures and other less serious cuts and abrasions. The largest cut was curved and about 2.8 cm long, the other two were 1 cm and 1.7 cm. The facial cuts left permanent and obvious scarring, and the child suffered from shock, nightmares, bedwetting and a fear of dogs. He was awarded $22,000 in general damages.

[83] In Bacon (Litigation Guardian of) v Csada (1995), 1995 CanLII 5635 (SK QB), 138 Sask R 297 (QB), the plaintiff child was bitten on the face, spent two days in hospital, had two subsequent surgeries, and a significant facial scar. She was awarded $12,000 in general damages.

[84] In Gaudry (Next Friend of) v Binning (1996), 1996 CanLII 6795 (SK QB), 149 Sask R 250 (QB) the plaintiff child was bitten on his cheek and eye, requiring surgery and overnight hospitalization. He suffered permanent scarring of his cheek and eye, and suffered emotional trauma. He was awarded $5000 in general damages.

[85] In Kowalchuk (Litigation Guardian of) v Britton, 2000 SKQB 328, the plaintiff child was bitten in the face, suffered an infection from the bites, and was hospitalized for three days. The cuts caused two permanent and noticeable scars on her left cheek each measuring about 1.5 cm. She underwent several procedures to improve the scar’s appearance, including dermabrasion, but the scars remained apparent even under cosmetics. She was awarded $25,000 in damages.

[86] In Strynatka v. Forbes, 2002 BCPC 481, the adult plaintiff suffered a facial dog bite requiring 25 stitches; the scar faded, but was still visible close up. He was awarded general damages of $2500.00.

[87] l In Meloche v Bezaire, 2005 OJ No 947 (Sup Ct Justice), the plaintiff was attacked by two dogs, who inflicted three puncture wounds to her arm, scratches, bruising and swelling to her hip, and a large bite wound to her calf. She had a four month recovery period, continued to suffer from pain, and had noticeable scars. She was awarded $30,000 in general damages, taking into account the lengthy recovery, ongoing trauma, and visible scarring.

[88] In Ross v Vidnes, 2012 SKQB 317, the plaintiff child was attacked by a dog through a screen door, tearing skin and flesh from his face. He was hospitalized for three days and required surgery. The wounds took several months to heal and caused pronounced scarring. He was going to require further surgery. He was teased at school because of the scarring and as a result, his family moved. He was awarded $55,000 in general damages.

[89] I find that Ms. McKinlay’s injuries fall within the mid-range of these cases. For example, in Moretto, the scarring was more severe and obvious, and in Zhan, the plaintiff required two surgeries. In Wattier the scar was large and required surgery. Here, there was no surgery or hospitalization and the scarring is limited to her lip, including a lack of symmetry in the lip shape. I conclude that $30,000 is an appropriate award for general damages, including the pain and suffering and permanent scarring to her upper lip.

Dragatis v. McPherson, 2006 NBQB 233 (CanLII)

[16] Undoubtedly the Plaintiff in the Gyorffy case was much more seriously injured than Ms. Dragatis. Taking into account my earlier conclusions about the severity of the injuries and the fact that the major complaints seen by Dr. Poole were not caused by the dog bites, I allow $7,000 by way of non-pecuniary general damages.

Swoffer and Bela, 2019 ONSC 3881 (CanLII)

[1] This is a Motion by the Plaintiff, Darryl Swoffer ("the plaintiff") for a default judgment on the Plaintiff's Statement of Claim seeking damages for personal injuries.

[2] The Plaintiff commenced this action against the Defendants, Christine Bela and Neil Bela ("the defendants") as a result of a dog bite attack which occurred on September 16th, 2015.

Damages

[28] The Plaintiff seeks judgment for unliquidated damages arising from the dog bite as follows:

1) General damages in the amount of $35,000 to $40,000;

2) Special damages in the amount of $120.51 for the subrogated OHIP claim.

[29] The Plaintiff's counsel has supplied me with a number of authorities regarding the issue of damages in both a general sense, as well as in a case specific sense. In the general sense, the authorities supplied stand for the proposition that general damages are for the loss of amenities, pain and suffering, injury to health, loss of ability to enjoy the normal activities of life and personal inconvenience, all of which flow from the injuries sustained. See Andrew v. Grand and Toy Limited, 1978 CanLII 1 (SCC), [1978] 2 SCR 229 and Strom v. White, 1994 CanLII 7342 (ON SC), [1994] OJ No. 2604.

[30] In the case specific sense, the Plaintiff's authorities include four cases, all decided by this court, on the issue of quantum of damages for injuries of this nature. In the case of Chatterton v. Cowan, 2010 OJ No. 3395, Mr. Justice Lauwers ordered damages in the amount of $8,500 for a middle aged woman who suffered tooth punctures in her hip as a result of a dog attack. She required a rabies shot and pain medication and suffered from nightmares, disrupted sleep and an ongoing fear of large dogs. The court noted the Plaintiff's minimal physical injuries and her continuing ability to carry on her day-to-day activities as a reason for damages being at the lower end of the scale.

[31] In Meloche v. Bezaire, 2005 OJ No. 947, McGarry, J ordered general damages in the amount of $30,000 for a Plaintiff who suffered large bite wounds on her left calf and right thigh and three puncture wounds on her left forearm after being attached by two dogs. In that case, the Plaintiff was required to rest for a period of four months and reported ongoing pain and permanent noticeable scarring at the sight of her wounds. The injuries rendered the Plaintiff incapable of carrying out her day-to-day activities and household tasks for some three to four months. She also suffered from ongoing anxiety and fear of dogs and visible scarring.

[32] In Moretto v. Nicolini-Femia, 2017 OJ No. 3328, Shaughnessy, J awarded the Plaintiff $45,000 in general damages, of which $5,000 was assessed based on her psychological injuries. In that case, the Plaintiff suffered a dog bit to his left cheek requiring ten sutures and a tetanus shot. The Plaintiff received steroid injections for approximately two years following the attack. The Plaintiff was left with significant and noticeable scarring on her face which led to significant emotional impact on her life and a reduction in her self-esteem and confidence, nightmares and flashbacks of the dog bite attack were also a feature of that case.

[33] Lastly, in Thompson v. Fisher, 2016 OJ No. 2731, Eberhard, J awarded general damages of $30,000 for a Plaintiff who was attacked by a dog and who suffered lacerations to his hands, a bruised left hip and a scraped left knee which were the direct result of a fall he experienced while attempting to flee from the dog. The lacerations on his hands required 12 sutures on one hand and four sutures on the other. As a result of the attack, the Plaintiff in that case faced significant limitations in the use of his hands and was no longer independent with day-to-day tasks. That Plaintiff also expressed difficulty gripping heavier objects and overall limited hand function and a fear of dogs as a result of the attack.

[34] In the case before me, the Plaintiff submits that the range of damage awards, adjusted for inflation, in the above mentioned cases ranges from a low of $9,965.52 for less severe injuries to approximately $46,932.52 for longer lasting injuries. The Plaintiff further submits that based on his experience with ongoing pain, sensitivity, physical limitations and psychological issues his general damages should be assessed at the upper end of the range.

[36] In view of all of the factors enumerated above, I am of the view that the Plaintiff is entitled to general damages in the amount of $40,000. The Plaintiff is also entitled to pre-judgment interest pursuant to the provisions of the Courts of Justice Act from the date of the claim and to post-judgment interest, again pursuant to the Courts of Justice Act from this date forward.

Moretto v Nicolini-Femia, 2017 ONSC 3945 (CanLII)

[1] On November 25, 2011, the plaintiff, Natalie Moretto attended the birthday party of Samantha Femia. At the time, Natalie Moretto was 15 years of age. Present at the birthday party were Samantha Femia, and six other girls (including the plaintiff Natalie Moretto) and the dog “Hayden”. The owner of the dog is the defendant, who is also the mother of Samantha Femia.

[2] The plaintiff, Natalie Moretto, while watching T.V. and eating pizza, got up from the couch she was sitting on and approached the dog, which was resting on a nearby loveseat. The dog bit the plaintiff’s left cheek, lacerating the skin, which resulted in the plaintiff attending the emergency department of a hospital and having 10 sutures applied to close the wound. The plaintiff seeks compensation for the injuries and damages she sustained. The Family Law Act claims of the plaintiff’s parents, Norma Moretto and Joseph Moretto are withdrawn (with costs remaining an issue.) Liability and damages are in dispute in this proceeding.

[63] After reviewing all the evidence, including the findings, diagnosis and prognosis of Dr. Peters and Dr. Krajden, I find that a reasonable assessment of the General Damages for the physical injury to the plaintiff including pain and suffering, loss of enjoyment of life and permanent scarring to the left nasal labial fold of the cheek of her face is $ 40,000.

[64] In addition thereto, I have also assessed General Damages for the psychological component of the dog bite incident, including nightmares, flashbacks, reduced self –esteem and confidence, a phobia towards dogs and personal embarrassment in the sum of $ 5,000.

[65] Accordingly, the total award for General Damages is $ 45,000.

[72] The evidence advanced by the plaintiff at trial is that the claim for loss of competitive advantage as set out in the economic loss report is based on the assumption that the plaintiff will sustain a 10% loss of competitive advantage from the point that she enters the workforce to the point that she retires (age 65). Mr. Borkwood also premised the report on the assumption that the plaintiff would pursue a career as a child and youth worker. He provided the opinion that the annual loss would be $ 3,350. Factoring in the usual contingencies and an employment entry date of January 2021, Mr. Borkwood calculated the present value of the plaintiff’s future economic losses at $ 99,500.

Gyorffy v. Johal, 1991 CanLII 377 (BC SC)

This is an action for damages arising from the injuries that the Plaintiff alleges he received as the result of being bitten by a dog owned by the Defendants, Parmjit Singh Johal and Ravinder Singh Johal. During the course of these proceedings, the pleadings were amended, deleting the Defendants, Parmjit Singh Johal and Ravinder Singh Johal.

[...]

After considering the pain he has been through; the fact that he will be scarred forever; the fact that he has and will continue to experience to some degree pain in the immediate area around the scars; the fact that his right knee is and will continue from time to time to swell and to be weak; and the fact that he had to spend 2 nights in hospital which caused him a great deal of anxiety, I am awarding the Plaintiff $12,000.00 in non-pecuniary damages. As inflation has already been factored into this award, interest will be calculated at the rate of 5% pursuant to the Court Order Interest Act (Graham v. Grant (1990) 46 B.C.L.R. (2) 151 (B.C.C.A.)).

Curwen v. Srivathsan, 2019 ONSC 6547 (CanLII)

[11] Subsection 2(1) of the Dog Owners’ Liability Act states that the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. Pursuant to s. 2(2), where there is more than one owner of a dog, they are jointly and severally liable.

[12] The Defendants are the owners of Oscar and are therefore jointly and severally liable for the damages resulting from the injury to Zoe.

[13] Non-pecuniary general damages are those damages awarded for pain and suffering, injury to health, loss of ability to enjoy the normal amenities of life, and personal inconvenience which flow naturally from the injuries that were sustained: Strom (Litigation Guardian) v. White (1994), 1994 CanLII 7342 (ON SC), 21 O.R. (3d) 205, 1994 CarswellOnt 160, at para. 23 (S.C.J.). The “monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one”:Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), (1978) 2 S.C.R. 229, at p. 261.

[14] In Moretto v. Nicolini-Femia, 2017 ONSC 3945, at para. 62, Shaughnessy J. noted that case law is of limited utility in dog bite cases because the assessment of damages is very much case specific. The case law nonetheless provides some guidance as to a potential range of damages. In Moretto, both parties provided detailed expert evidence pertaining to the diagnosis and prognosis of the plaintiff’s injuries, which included facial scarring. Shaughnessy J. assessed damages for physical injury at $40,000 and damages for psychological injury at $5,000. A further $12,500 was awarded for future care costs for laser treatments and sunscreen.

[15] In Strom v. White, a six-year old boy suffered three lacerations with ongoing scars and psychological trauma resulting from a dog bite. Kozak J. awarded $22,000 in general damages. In Meloche v. Bezaire, [2005] O.J. No. 947 (S.C.J.), the plaintiff suffered ongoing trauma, pain and visible scarring on her leg and was awarded $30,000. In Zhan v. Kumar, [2008] O.J. No. 1102 (S.C.J.), the court awarded $35,000 in general damages to the plaintiff, who suffered lacerations to his face, residual numbness and depression.

[19] I accept the seriousness of the injuries suffered by Zoe, as well as her ongoing anxiety relating to dogs and to her appearance. However, there was limited medical evidence regarding Zoe’s current circumstances. Based on the evidence and the range of damages awarded in similar cases, I find that a reasonable amount for general damages for the injury suffered by Zoe is $37,500.00.

Swoffer and Bela, 2019 ONSC 3881 (CanLII)

[12] As a result of the dog bite, the Plaintiff suffered two puncture wounds to his left hand. Photographs attached to the Plaintiff's affidavit herein show nasty wounds on either side of the hand which confirmed the Plaintiff's evidence to the effect that the dog's teeth actually pierced his hand.

[13] Immediately following the dog bite, the Plaintiff attended for medical attention. The attending physician describes the Plaintiff's injuries as consisting of two lacerations on the Plaintiff's left palm, one approximately two centimetres in length and one approximately five centimetres in length. These lacerations were cleaned, sutured and bandaged. Twelve sutures were required. The Plaintiff also received a tetanus shot and was given a prescription for antibiotics.

[18] The Plaintiff asserts that prior to the dog bite he had no physical limitations with respect to the use of his left hand, that he was independent in all activities of daily living and he did not require assistance. He further asserts that for approximately eight to ten months following the dog bite he experienced severe limitations in the use of his left hand on a daily basis. That involved difficulty opening and closing his hand, stretching his hand, lifting things and grasping objects. When he attempted to hold items or lift anything with any weight, he would experience significant discomfort and sharp shooting pain at the site of the injury. Some of the activities he has experienced difficulty with include pushing the lawnmower, lifting boxes, sleeping on his hand and even zipping up his jacket, all being tasks for which he required assistance.

[19] The Plaintiff was unable to use his hand at all for at least a month after each of the three surgeries and required the assistance of his parents with respect to activities of daily living and employment.

[20] As of the date of the hearing of the Motion, the Plaintiff continued to suffer from heightened sensitivity to touch and pressure at the site of the injury, some seven months after his last surgery. He continues to experience significant weakness in his grip strength and remains unable to make a full fist.

[21] I am advised as well by counsel that there is a significant risk of a further recurrence of the Dupuytren's Disease.

[22] As noted above, at the time of this incident the Plaintiff worked as a newspaper delivery man. He was unable to return to that work for a period of one month after the dog bite, but when he did return he required assistance as he was unable to use his left hand to lift newspaper boxes, fold and assemble the papers and pull the wagon. His father assisted him with this task for approximately four months thereafter.

[23] Quite understandably, the Plaintiff's also experiencing some psychological issues involving significant anxiety and fear of large dogs. He also continues to have recurring nightmares and flashbacks about the dog bite.

[28] The Plaintiff seeks judgment for unliquidated damages arising from the dog bite as follows:

1) General damages in the amount of $35,000 to $40,000;

2) Special damages in the amount of $120.51 for the subrogated OHIP claim.

[29] The Plaintiff's counsel has supplied me with a number of authorities regarding the issue of damages in both a general sense, as well as in a case specific sense. In the general sense, the authorities supplied stand for the proposition that general damages are for the loss of amenities, pain and suffering, injury to health, loss of ability to enjoy the normal activities of life and personal inconvenience, all of which flow from the injuries sustained. See Andrew v. Grand and Toy Limited, 1978 CanLII 1 (SCC), [1978] 2 SCR 229 and Strom v. White, 1994 CanLII 7342 (ON SC), [1994] OJ No. 2604.

[30] In the case specific sense, the Plaintiff's authorities include four cases, all decided by this court, on the issue of quantum of damages for injuries of this nature. In the case of Chatterton v. Cowan, 2010 OJ No. 3395, Mr. Justice Lauwers ordered damages in the amount of $8,500 for a middle aged woman who suffered tooth punctures in her hip as a result of a dog attack. She required a rabies shot and pain medication and suffered from nightmares, disrupted sleep and an ongoing fear of large dogs. The court noted the Plaintiff's minimal physical injuries and her continuing ability to carry on her day-to-day activities as a reason for damages being at the lower end of the scale.

[31] In Meloche v. Bezaire, 2005 OJ No. 947, McGarry, J ordered general damages in the amount of $30,000 for a Plaintiff who suffered large bite wounds on her left calf and right thigh and three puncture wounds on her left forearm after being attached by two dogs. In that case, the Plaintiff was required to rest for a period of four months and reported ongoing pain and permanent noticeable scarring at the sight of her wounds. The injuries rendered the Plaintiff incapable of carrying out her day-to-day activities and household tasks for some three to four months. She also suffered from ongoing anxiety and fear of dogs and visible scarring.

[32] In Moretto v. Nicolini-Femia, 2017 OJ No. 3328, Shaughnessy, J awarded the Plaintiff $45,000 in general damages, of which $5,000 was assessed based on her psychological injuries. In that case, the Plaintiff suffered a dog bit to his left cheek requiring ten sutures and a tetanus shot. The Plaintiff received steroid injections for approximately two years following the attack. The Plaintiff was left with significant and noticeable scarring on her face which led to significant emotional impact on her life and a reduction in her self-esteem and confidence, nightmares and flashbacks of the dog bite attack were also a feature of that case.

[33] Lastly, in Thompson v. Fisher, 2016 OJ No. 2731, Eberhard, J awarded general damages of $30,000 for a Plaintiff who was attacked by a dog and who suffered lacerations to his hands, a bruised left hip and a scraped left knee which were the direct result of a fall he experienced while attempting to flee from the dog. The lacerations on his hands required 12 sutures on one hand and four sutures on the other. As a result of the attack, the Plaintiff in that case faced significant limitations in the use of his hands and was no longer independent with day-to-day tasks. That Plaintiff also expressed difficulty gripping heavier objects and overall limited hand function and a fear of dogs as a result of the attack.

[34] In the case before me, the Plaintiff submits that the range of damage awards, adjusted for inflation, in the above mentioned cases ranges from a low of $9,965.52 for less severe injuries to approximately $46,932.52 for longer lasting injuries. The Plaintiff further submits that based on his experience with ongoing pain, sensitivity, physical limitations and psychological issues his general damages should be assessed at the upper end of the range.

[35] Having reviewed the authorities cited above, and having reflected on the circumstances of this case and the evidence that's been placed before me, I am persuaded that the Plaintiff's injuries merit an award at the higher end of the above-noted range. I note that the attack itself lasted for approximately one minute during which time the Plaintiff's hand was firmly in the grip of the dog's jaws having been pierced by the dog's teeth. I am sure that that minute would seem like an eternity to anyone undergoing such an experience. The Plaintiff, as noted above, was obliged to attend for medical treatment involving sutures with all that that entails. He was also obliged to attend for two subsequent surgical sessions as a result of the Dupuytren's Disease. I note, as well, that he is at risk of future recurrences of that condition. The Plaintiff has lost some degree of functionality in his left hand which has had a significant detrimental impact on his daily life. The Plaintiff has also suffered from persistent emotional distress stemming from the incident involving anxiety and fear being around dogs which is not at all surprising and is to be expected with cases of this nature.

[36] In view of all of the factors enumerated above, I am of the view that the Plaintiff is entitled to general damages in the amount of $40,000. The Plaintiff is also entitled to pre-judgment interest pursuant to the provisions of the Courts of Justice Act from the date of the claim and to post-judgment interest, again pursuant to the Courts of Justice Act from this date forward.