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==McKinlay v Zachow, 2018 ABQB 365 (CanLII)==
==McKinlay v Zachow, 2018 ABQB 365 (CanLII)==
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McKinlay v Zachow, 2018 ABQB 365 (CanLII)
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Date:
2018-05-02
File number:
1103 15939
Citation:
McKinlay v Zachow, 2018 ABQB 365 (CanLII), <http://canlii.ca/t/hrsc9>, retrieved on 2020-09-14
Court of Queen’s Bench of Alberta
Citation: McKinlay v Zachow, 2018 ABQB 365
Date: 20180502
Docket: 1103 15939
Registry: Edmonton
Between:
Jennifer McKinlay
Plaintiff
- and -
Clinton Arthur Zachow,
H.F. Water Depot South Ltd. and H.F. Water Depot South (2009) Ltd.
Defendants
Corrected judgment: A corrigendum was issued on May 7, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment.
_______________________________________________________
Reasons for Decision
of the
Honourable Madam Justice D.A. Yungwirth
_______________________________________________________
Introduction
[1]              The Plaintiff, Ms. McKinlay, claims damages for injuries she suffered when she was bit by the Defendant Zachow’s dog. The corporate Defendants are bankrupt and were not represented at trial.
[2]              The issues for determination in this action are as follows:
(a)              Is Mr. Zachow liable for the injuries sustained by Ms. McKinlay when she was bitten by Mr. Zachow’s dog?
(b)              If so, did the actions of Ms. McKinlay contribute to her injuries?
(c)              To the extent that Mr. Zachow is liable for the damages suffered by Ms. McKinlay, what is the appropriate amount of damages to which Ms. McKinlay is entitled?
Background Facts
[3]              On June 7, 2011, Mr. Zachow, who was working for the other corporate Defendants, was delivering water to the workplace of the Plaintiff, Divine Spine Chiropractic.
[4]              Mr. Zachow had his dog, Junior, in the delivery van with him. Junior was sitting in the front passenger seat of the delivery van.  He was not leashed or muzzled.
[5]              Junior was a mixed breed, primarily American Staffordshire Terrier, commonly known as a pit bull. This breed was, on June 7, 2011, a restricted dog under City of Edmonton Bylaw 13145, the Animal Licensing and Control Bylaw. Mr. Zachow was aware of that Bylaw. He was also aware that his dog, Junior, was a restricted dog.
[6]              When Mr. Zachow arrived at Divine Spine, he parked his vehicle in the alley behind the building and walked around to the front door to announce his arrival. An employee of Divine Spine, Kevin Prommer, walked Mr. Zachow out through the back door and waited for the water delivery.
[7]              After some time passed, the Plaintiff asked Mr. Prommer to check on the water delivery, following which both the Plaintiff and Mr. Prommer looked out the back door to see what was happening.
[8]              Both the Plaintiff and Mr. Prommer observed Mr. Zachow talking with two women from the dog grooming business next door. The front passenger door, where Junior was sitting, was open. One of the two women was seen petting Junior, but she stopped when the Plaintiff came out of the back door and approached the van.
[9]              There are conflicts in the evidence as to whether Ms. McKinlay spoke to Mr. Zachow before approaching the dog.
The Evidence
Plaintiff’s Evidence
[10]          Ms. McKinlay says that she asked Mr. Zachow if the dog was friendly and if she could pet him.  Her evidence was that she said “oh what a beautiful dog” and asked “is he friendly?” and that Mr. Zachow said “yes”. She then asked “can I pet him too?” and Mr. Zachow smiled and said “yes”. Ms. McKinlay says that she walked toward the dog with her hand out.
[11]          Ms. McKinlay says that she petted the dog with her left hand and that the dog was in front of her and a little to her left. She said that she was petting the side of the dog’s neck and the back of the dog’s head. She said that she was being gentle and that because it was a large dog, she was being cautious.
[12]          Ms. McKinlay’s evidence is that she interacted with the dog for a couple of minutes. She then turned her head to say something to Mr. Zachow and the dog lunged at her and bit her on the left side of her face.
Kevin Prommer’s Evidence
[13]          Mr. Prommer testified that he stayed near the back door because it locked when closed. He said that he was about 6 feet away from the dog. He saw that it was a pit bull, he was afraid, and he would not interact with the dog.
[14]          Mr. Prommer said that Ms. McKinlay got excited about the dog and went to join the conversation.
[15]          Mr. Prommer’s evidence is that Ms. McKinlay asked if she could pet the dog and the owner said “yes”. He said that he saw Ms. McKinlay go to pet the dog and the dog snapped and barked at her.
[16]          Mr. Prommer said that he did not see Ms. McKinlay hold her hand out as she approached the dog.  He couldn’t say if Ms. McKinlay made contact with the dog before the dog snapped at her.
[17]          Mr. Prommer said that the dog did not leave the vehicle to chase Ms. McKinlay but stayed in the vehicle.
Defendant’s Evidence
[18]          Mr. Zachow’s evidence is that while he was talking to the two women from the dog grooming business, the back door of Divine Spine opened and Ms. McKinlay came out. He said that she came over to the van and interacted with the dog.
[19]          Mr. Zachow testified that Ms. McKinlay did not ask to pet the dog before she approached the dog. He said that he does not recall Ms. McKinlay saying anything to him or to the two women.
[20]          He said that he was on Ms. McKinlay’s left side and she was in the van doorway facing the dog. He had no clear view of her face when she was interacting with the dog
[21]          Mr. Zachow said that he could only see Ms. McKinlay’s lower torso and that she was leaning into the vehicle. He said that she did not have to lean into the vehicle to pet the dog. All of a sudden, she jumped back and then ran back into the chiropractic clinic.
[22]          He said that he did not hear the dog bark. He said several times that it all happened so fast. Mr. Zachow estimated that it took Ms. McKinlay 5 seconds to walk from the door to the van and 5 seconds more for her to interact with dog.
[23]          Mr. Zachow said that he did not hear any aggression by the dog toward Ms. McKinlay before the bite.
Mavis Martinez’ Evidence
[24]          Ms. Martinez was one of the dog groomers from next door.
[25]          Her evidence is that the incident happened very quickly.
[26]          She said that she thought that Ms. McKinlay knew the dog because she came out happy and excited to see the dog. She said that Ms. McKinlay approached the dog with high energy.
[27]          Ms. Martinez described how Ms. McKinlay came out of the building very excited – she had both arms out. She does not recall Ms. McKinlay asking if the dog was friendly or if she could pet the dog.  Ms. Martinez described a burst of energy by Ms. McKinlay. She said that everyone stopped talking. She said that Ms. McKinlay said nothing to anyone there.
[28]          Ms. Martinez did not see Ms. McKinlay hold her hand out to the dog.
[29]          She did not hear any encounters between Ms. McKinlay and Mr. Zachow or anyone else before Ms. McKinlay petted the dog.
[30]          Ms. Martinez said that she herself had asked the Defendant to pet his dog and that he gave her permission.  She said that she had been petting the dog for about 5 minutes and that the dog was very friendly and showed no indication of aggression.
[31]          Ms. Martinez appears to have had a good view of what took place.  She said that after petting the dog and as Ms. McKinlay approached, she stepped back to the railing to make room for her. She said that she and Mr. Zachow and Ms. McKinlay were all standing on the inside of the open van door. She said that she was behind Ms. McKinlay and off to the side. She said she believed that the Mr. Zachow was in reach of the dog.
[32]          Ms. Martinez testified that Ms. McKinlay petted the dog on the head, ears, and neck - getting close to the dog’s face. Ms. McKinlay was the same height as the dog because the dog was sitting on the passenger seat of the van.
[33]          Ms. Martinez testified that she could see the dog’s body and shoulders, but not his face. She did not see Ms. McKinlay hug the dog but could hear her making kissing noises. Ms. Martinez said that Ms. McKinlay was not being mean to the dog.
[34]          She said that Ms. McKinlay was in the alley a minute or two – less time than Ms. Martinez had been interacting with the dog.
[35]          Ms. Martinez stated during her cross-examination, that this was not an attack, but a warning bite and that the dog then retreated into the van.
Findings on the Evidence
[36]          I note that all of the witnesses are trying to recall events that took place almost 7 years ago. There are bound to be differences in their respective recollections, as people have different abilities to recall events, especially when there has been a significant passage of time.
[37]          I find that Mr. Prommer’s evidence is unreliable in some respects. He was not as close to the events as the others were and his description of events differs in some significant ways from the description provided by Ms. McKinlay, Mr. Zachow, and Ms. Martinez. The most significant difference relates to how Ms. McKinlay interacted with the dog.  He was unable to recall any interaction, but said that when Ms. McKinlay went to pet the dog, it snapped at her. This is different from all of the other evidence. Ms. McKinlay says that she petted the dog for 1 or 2 minutes, and Mr. Zachow and Ms. Martinez also confirmed that Ms. McKinlay petted the dog.
[38]          I find that Ms. Martinez provided the most reliable, independent version of what occurred on that day. She had no connection to Mr. Zachow and was in a good position to observe what took place.
[39]          Mr. Zachow’s description of events, including his evidence that things occurred very quickly and his evidence that Ms. McKinlay did not ask to pet the dog, are consistent with the evidence of Ms. Martinez.
[40]          I therefore find that Ms. McKinlay did not ask Mr. Zachow if she could pet the dog, nor did she ask him anything else, before she approached the dog and began to pet him. I also find that she approached the dog with high energy, that she leaned into the van, and that she petted the dog on the head, ears, and neck, getting close to the dog’s face.  I find that she was either kissing the dog or making kissing noises while she was petting the dog.
Analysis
[41]          I turn now to my analysis on the first issue.
Is Mr. Zachow liable for the injuries sustained by Ms. McKinlay when she was bitten by Mr. Zachow’s dog?
Scienter
[42]          The Plaintiff argues that the owner of a dog can be found liable for an attack in two ways – under the doctrine of scienter and in negligence. Janota-Bzowska v Lewis (1997), 96 BCAC 70, at para 9.
[43]          For the Defendant to be found liable under the doctrine of scienter, the Plaintiff must establish that:
(a)              the Defendant was the owner of the dog;
(b)              the dog had manifested a propensity to cause the type of harm occasioned; and
(c)              the owner knew of that propensity.
[44]          Mr. Zachow was the owner of the dog.
[45]          For the reasons indicated below, I am not satisfied that Ms. McKinlay has established the other two parts of the test.
[46]          There is no evidence that Mr. Zachow’s dog had manifested a propensity to cause the type of harm occasioned. In fact, the Defendant’s evidence is that there had been no other incidents with the dog. The fact that the dog may have barked at strangers or strange dogs in the past, or that it ran with abandon when off its leash, does not go far enough, in my view, to show a propensity to cause the type of harm occasioned in this case.
[47]          The Plaintiff also argues that Bylaw 13145 in effect codified the doctrine of scienter and in so doing, automatically assigned certain breeds of dog to the category of having a propensity to cause harm. Ms. McKinlay argues that Mr. Zachow’s dog, by breed alone, had a propensity to cause the type of harm occasioned and that Mr. Zachow knew of such propensity at all relevant times.
[48]          Section 2(o) of Bylaw 13145 provides:
“Restricted Dog” means any dog:
(i)        certified by a veterinarian licensed to practice veterinary medicine in Alberta to be primarily of the breed Staffordshire Bull Terrier as that breed is defined by the Canadian Kennel Club;
(ii)        certified by a veterinarian licensed to practice veterinary medicine in Alberta to be primarily of the breed American Staffordshire Terrier as that breed is defined by the Canadian Kennel Club;
(iii)      that has chased, attacked or bitten any person or animal causing physical injury and resulting in conviction under this bylaw;
(iv)      that has chased, attacked or bitten any person or animal on more than one occasion, with or without causing physical injury and resulting in separate convictions under this bylaw;
(v)        that has been made the subject of an order under the Dangerous Dogs Act; or
(vi)      that has been classified as a Vicious Dog under the provisions of Bylaw 10558, The Registration And Keeping Of Dogs Bylaw;
but does not include a dog:
(vii)      registered, or eligible for registration, with the Canadian Kennel Club as a purebred Staffordshire Bull Terrier or American Staffordshire Terrier.
[49]          This definition is necessary to the rest of the bylaw, as certain regulations apply only to “restricted dogs”. Section 35 of the Bylaw provides that a person who contravenes the bylaw is guilty of an offence.
[50]          There are two categories of dogs in the definition of “restricted dog” – those primarily of certain breeds, and those that have chased, attacked or bitten a person, or that have been designated as being dangerous or vicious.
[51]          It is, in my view, too big a leap to conclude that the drafters of the Bylaw intended by the definition of “Restricted Dog” to establish absolute liability on the part of the owners of dogs primarily of certain breeds in all circumstances, even where a dog has never manifested a propensity to cause harm.
[52]          The doctrine of scienter relies on a subjective examination of the dog owner’s knowledge and gives rise to strict liability based on that knowledge. Liability exists without proof of negligence for any damage caused by the animal acting in accordance with a propensity known by the owner. Applying the doctrine based only on the type of breed of dog, undermines the principles upon which this doctrine is based.
[53]          I note that in this case, the Bylaw Officer who examined the circumstances, made the decision not to charge Mr. Zachow under Bylaw 13145.
Negligence
[54]          I turn now to an analysis of whether Mr. Zachow has any liability in negligence.
[55]          To succeed in an action based on negligence against Mr. Zachow, Ms. McKinlay must prove on a balance of probabilities that:
(a)              Mr. Zachow knew or ought to have known that Junior was likely to create a risk of injury to third persons, including Ms. McKinlay; and
(b)              Mr. Zachow failed to take reasonable care to prevent such injury. Janota-Bzowska v Lewis, at para 23.
[56]          An owner of an animal may be liable for damage done by that animal if the owner allows it to be in such a position that it is reasonably foreseeable that damage may result. Bates v Horkoff (1991), 1991 CanLII 5958 (AB QB), 84 Alta LR (2d) 236, 119 AR 270 (QB), at para 20, relying on Draper v Hodder, [1972] 2 QB 556, [1972] 2 All ER 210 (CA).
[57]          The proper test of negligence is not whether the particular physical harm actually suffered ought reasonably to have been anticipated, but whether, broadly speaking, it was within the range of likely consequences., Bates, at para 27.
[58]          In this case, Mr. Zachow knew his dog was a restricted dog, and that under the Bylaw it needed to be leashed and muzzled when in public.
[59]          The dog never left Mr. Zachow’s vehicle. However, when Mr. Zachow opened the front passenger door to the vehicle to allow others access to the dog, he left the dog in a position where it could get out of the van and interact with the public, thereby putting Mr. Zachow in breach of section 16 of Bylaw 13145, which provides:
16.      The Owner or any other person having care or control of a Restricted Dog shall, at all times when it is off the property of the owner, have it:
(a)              under control;
(b)              muzzled; and
(c)              held on a leash not exceeding two metres in length.
[60]          He also placed himself at risk of breaching s.18 (1) of the Bylaw, which provides:
18. (1) The Owner or any other person having care or control of a Restricted Dog shall ensure it does not:
(a) damage property;
(b) chase, attack or bite any person or animal; or
(c) chase, attack or bite any person or animal causing physical
[61]          Once Mr. Zachow opened the door to the van and allowed the dog access to the public, he was in breach of his statutory duty to keep Junior leashed and muzzled. However, it is clear that mere breach of a statutory duty does not constitute negligence: Holland v Saskatchewan, 2008 SCC 42. Regulatory breaches are not automatically a tort: Ball v Imperial Oil Resources Ltd, 2010 ABCA 111 at para 86 (in dissenting opinion).
[62]          The Supreme Court of Canada in Ryan v Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 SCR 201, referencing the leading decision of Canada v Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 SCR 205, noted that legislative standards may be relevant to the common law standard of care, but they are not necessarily co-extensive. At para 29, the Court said:
The fact that a statute prescribes or prohibits certain activities may constitute evidence of reasonable conduct in a given situation, but it does not extinguish the underlying obligation of reasonableness…Thus, a statutory breach does not automatically give rise to civil liability; it is merely some evidence of negligence. See, e.g., Stewart v. Pettie, 1995 CanLII 147 (SCC), [1995] 1 S.C.R. 131, at para. 36, and Saskatchewan Wheat Pool, at p. 225...Statutory standards can, however, be highly relevant to the assessment of reasonable conduct in a particular case…. (Emphasis added)
[63]          Similarly, our Court of Appeal in Tottrup v Alberta (Minister of Environmental Protection), 2000 ABCA 121 noted (at para 23) that “the provisions of the statute form part of the circumstances which may give rise to a duty of care.”
[64]          I conclude that Bylaw 13145 provides some evidence of what would be reasonable in the circumstances. Mr. Zachow was aware of the Bylaw, and knew that his dog met the definition of a restricted dog under the bylaw. He also knew that the Bylaw imposed specific, legislated obligations on owners or persons having care and control of these dogs. In these circumstances, Mr. Zachow ought reasonably to have anticipated that injury could result to any person who interacted with Junior.
[65]          I also note that Mr. Zachow took no steps to prevent Ms. McKinlay’s interaction with Junior, such as closing the door of the van or stopping Ms. McKinlay as she approached the dog.
[66]          I find that an injury to a person who interacted with Junior was reasonably foreseeable, and that a dog bite was within the range of likely consequences. I also find that Mr. Zachow did not take reasonable care to avoid the harm. I therefore find Mr. Zachow liable in negligence for the injuries to Ms. McKinlay.
Did Ms. McKinlay actions contribute to her injuries?
[67]          Mr. Zachow bears the burden of proving that Ms. McKinlay was contributorily negligent. I find that he has discharged that burden.
[68]          For the reasons that follow, I find that Ms. McKinlay’s actions contributed to her injuries.
[69]          I note that the dog had not shown any aggressive behavior to Ms. Martinez, who had been petting the dog for about 5 minutes before Ms. McKinlay approached the dog.
[70]          Ms. McKinlay moved very quickly toward the dog with her arms outstretched. I have already found that she did not ask to pet the dog. She leaned into the van and intruded into the dog’s space. Though she was not mean to the dog, her interactions included petting the dog on the head, ears and neck, getting close to the dog’s face, which was the same height at Ms. McKinlay’s face, and either kissing the dog or making kissing noises to the dog.
[71]          The nature of Ms. McKinlay’s interaction with the dog contributed to the dog’s reaction.
[72]          The nature of Ms.McKinlay’s injuries is more consistent with the dog having felt threatened and snapping at Ms. McKinlay than it was with a full attack on Ms. McKinlay’s face.
[73]          Section 2 of the Contributory Negligence Act, RSA 2000, Chapter c-27, requires the Court to determine the degree in which each person was at fault. Liability is then assessed in proportion to the degree in which each person was at fault.
[74]          In this case, after considering all of the circumstances, I find that Mr. Zachow and Ms. McKinlay are each 50% liable for the damages suffered by Ms. McKinlay. I base this on my conclusion that Mr. Zachow should have had Junior leashed and muzzled if he intended to have members of the public interact with Junior. I also base this on my findings that Ms. McKinlay’s interactions with the dog contributed to the dog’s reaction.
What are Ms. McKinlay’s damages?
[75] I find that Mr. Zachow’s dog bit Ms. McKinlay’s face,  causing facial injuries and scarring, including puncture wounds on her left cheek, a black eye which twitched for a period of time after the attack, and a deep laceration to her upper lip requiring stitches. Ms. McKinlay has permanent scarring and an asymmetry to her upper lip. She also suffered from emotional distress as a result of the dog bite.
[76] I turn now to the amount of damages to which Ms. McKinlay is entitled.
<b>General Damages</b>
<b>General Damages</b>


Revision as of 02:15, 15 September 2020


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.


[1]

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.

[2]

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.

[3]

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.


[4]

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.)).

[5]

Curwen v. Srivathsan, 2019 ONSC 6547 (CanLII)[6]

[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.)[7]. 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[8].

[14] In Moretto v. Nicolini-Femia, 2017 ONSC 3945[4], 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[7], 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.

[6] [7] [8] [4]

Swoffer and Bela, 2019 ONSC 3881 (CanLII)[3]

[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[8] and Strom v. White, 1994 CanLII 7342 (ON SC), [1994] OJ No. 2604.[7]

[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[9], 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[4], 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[10], 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.

[3] [9] [10]

References

  1. ↑ McKinlay v Zachow, 2018 ABQB 365 (CanLII), <http://canlii.ca/t/hrsc9>, retrieved on 2020-09-14
  2. ↑ Dragatis v. McPherson, 2006 NBQB 233 (CanLII), <http://canlii.ca/t/1nqhj>, retrieved on 2020-09-14
  3. ↑ 3.0 3.1 3.2 Swoffer and Bela, 2019 ONSC 3881 (CanLII), <http://canlii.ca/t/j2r82>, retrieved on 2020-09-14 Cite error: Invalid <ref> tag; name "Swoffer" defined multiple times with different content
  4. ↑ 4.0 4.1 4.2 4.3 Moretto v Nicolini-Femia, 2017 ONSC 3945 (CanLII), <http://canlii.ca/t/h4jdx>, retrieved on 2020-09-14 Cite error: Invalid <ref> tag; name "Moretto" defined multiple times with different content
  5. ↑ Gyorffy v. Johal, 1991 CanLII 377 (BC SC), <http://canlii.ca/t/1csb6>, retrieved on 2020-09-14
  6. ↑ 6.0 6.1 Curwen v. Srivathsan, 2019 ONSC 6547 (CanLII), <http://canlii.ca/t/j3bmh>, retrieved on 2020-09-10
  7. ↑ 7.0 7.1 7.2 7.3 Strom v. White, 1994 CanLII 7342 (ON SC), <http://canlii.ca/t/1vtmt>, retrieved on 2020-09-10
  8. ↑ 8.0 8.1 8.2 Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 SCR 229, <http://canlii.ca/t/1mkb5>, retrieved on 2020-09-10
  9. ↑ 9.0 9.1 Chatterton v. Cowan, 2010 ONSC 4314 (CanLII), <http://canlii.ca/t/2c14q>, retrieved on 2020-09-10
  10. ↑ 10.0 10.1 Thompson v Fisher, 2016 ONSC 3409 (CanLII), <http://canlii.ca/t/grtvj>, retrieved on 2020-09-10
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