Dog Bite (Tort)

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.