Kirk v. Trerise, 1981 CanLII 430 (BC CA)

This was an appeal from a decision reported at (80) D.R.S. P90-530 whereby the appellants were held liable in damages to the respondent, who was bitten by their Afghan dog. The dog was highly excitable for the first few minutes when visitors entered the house. When the respondent entered the house, the dog as was his custom with visitors greeted her by placing his front feet on her shoulders and licking her face. The appellant, fearful that the dog might knock over the elderly respondent, attempted to pull the dog down. On this occasion the dog reared up and the respondent’s upper lip was bitten or torn by the dog’s teeth. There was nothing in the dog’s previous behaviour to indicate a propensity to bite or attack any person. The trial judge found that the appellant dog owners failed to discharge the onus of proving that the dog was of a mischievous nature; that the appellants were negligent; and that the appellants were in breach of s. 3 of the Occupiers’ Liability Act.

The appeal was allowed. The majority of the Court held that the common law doctrine of scienter was wrongly applied by the trial judge. The doctrine places on the owner the onus of showing that he did not know that his dog was of a vicious or mischievous nature. The majority of the Court held that the word “mischievous” in the context meant fierce and did not mean highly excitable as the trial judge had found. Also, it was not negligent to have the dog in the house and the appellant did not act unreasonably in trying to restrain the dog.

Source: Case Law

Jurisdiction: British Columbia

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