Action by Strynatka for injuries and loss of profits resulting from an attack by Forbes’s dog. Strynatka was playing a game of tug of war with the dog, which had his cap in its mouth, when the dog bit his face. His face was permanently scarred. Forbes was present, and could have controlled the dog, but he did not warn Strynatka or intervene to take control of the dog. Forbes knew the dog had nipped before when someone put their face near the dog’s, and she had warned Strynatka not to do so on previous occasions. She had warned him not to play tug of war on previous occasions, and had intervened several times before when Strynatka had played tug of war. After the dog bit, Strynatka said “my fault”. Strynatka argued that he was in shock at that time, and that Forbes was liable for not controlling the dog. Forbes argued that Strynatka was aware of the risk from previous warnings, which was demonstrated by his statement regarding his fault. Strynatka claimed that he lost clients because of the disfigurement of his face. He did not provide evidence of mitigation or of the cause of his losing clients.
Action allowed in part. Strynatka was equally responsible with Forbes for his injuries. Strynatka knew the risks from previous warnings and acted negligently in failing to abandon the cap to the dog or ask Forbes to get it back. Forbes negligently failed to intervene to control the dog in a situation similar to that in which she knew the dog had bitten before. Since she was present, and had intervened on previous occasions, and since she had better knowledge of the dog’s propensities, she was not absolved of responsibility by the doctrine of volenti non fit injuria. As Strynatka failed to prove the cause of his loss of clients, his claim for lost profits was dismissed. Damages for the bite were assessed at $2,500.
Source: Case Law
Jurisdiction: British Columbia