Mar 17, 2014

Summary of Ross v Vidnes

Ross v Vidnes, 2012 SKQB 317 (CanLII)
The plaintiff infant was bitten by a dog owned by the defendant and sues for damages. The plaintiff and the defendant's son were friends. The plaintiff frequently went over to the defendant's house and yard to play. On the day that the plaintiff was bit, the plaintiff had forgotten his skateboard at the defendant's house. He returned to get it and was speaking to the defendant on the front step. The defendant was speaking to the plaintiff through a screen door that had no screen in it. As the plaintiff was standing on the doorstep, the defendant's Saint Bernard dog jumped up at the window and bit the plaintiff in the face. The plaintiff's face was significantly injured and he has a lasting scar on his face. There was evidence that the plaintiff has been teased by his peers because of his appearance and that his personality has changed as a result of what happened. The defendant's dog had been broken off its leash in the past and was known to run around town. There was evidence that the dog was hard to control and was physically intimidating. The dog was twice the size of the plaintiff. The plaintiff was 7 years old when he was bit.HELD: The defendant was liable for damages under the doctrine of scienter and in negligence. With respect to the doctrine of scienter, the defendant was the owner of the dog, it was known to break free from its chain and run around town barking and jumping up on people. There was one instance where the dog ran at a woman and she drew back. In another instance, the dog had ran at the end of its chain at the plaintiff and only stopped because it was tied up. The dog had manifested a propensity to be aggressive and to cause the type of harm occasioned in this case. The Court did not accept that the defendant was unaware that her dog was aggressive. Members of the public were permitted to enter the defendant's property and come to the door. The defendant knew that her door was missing the window and that her dog could reach the window. The amount of control exercised over the dog in the defendant's home was inadequate. The defendant was also liable in negligence because she knew that the plaintiff had a history of coming to her yard and home to play with her son. She also knew or ought to have known that the Saint Bernard could cause injury to a child unless preventative measures were taken. The defendant owed a duty of care to the plaintiff when he came to her door and she breached that duty. The plaintiff was not contributory negligent for what happened. The defendant was not a trespasser on the defendants property because although the defendant might have told the plaintiff's father that the plaintiff was not welcome at her home, she never told the plaintiff this and she did not intervene when he attended her home on many occasions to play with her son and on other occasions when her child was not in the yard. The defendant also breached her occupier's duty to common humanity because she ought to have anticipated that a person may enter her property and come to the door and the defendant should have taken more precautions to prevent the dog from accessing the open window. The plaintiff was awarded damages in the amount of $55,000.00 plus special damages of $1,484.96 for costs associated with getting medical care. Pre-judgment interest was also awarded because the Court found it was reasonable for the plaintiff's litigation guardian to wait to see what effect the scarring would have on the child over time and whether the scar would disappear as the plaintiff got older.