The child plaintiff was bitten on the face by a pitbull owned by the defendants, requiring reconstructive surgery and two days hospitalization and causing permanent scarring. The dog had bitten the owner's young son two weeks earlier while he played near the dog's food dish'; they contemplated having the dog euthanized but decided against it. The plaintiff's mother had heard about the bite incident but brought her daughter of the same age as the owner's son to visit, placing her on the floor where the dog bit her shortly after. The judge held that the defendants knew of the dog's propensity to bite young children but kept it ''at their peril" (suggesting strict liability or scienter, which was not however mentioned); such fault was sufficient to make the owners 2/3 liable for the child's $12,000 plastic surgery costs, pain and mental anguish. The plaintiff's mother was held 1/ contributorily liable for letting her child visit and play on the floor near the dog, knowing of its propensity.
Macleod J.:
1 The plaintiff minor, Schantelle Robin Bacon, was bitten by a dog "Willie" on September 27, 1986, and sues for damages.
Procedural Issues
2 A number of procedural issues were raised, and I will deal with them first:
1. The third party notice.
3 At the opening of trial, counsel for the defence presented a third party notice. The defendants claim to be entitled to relief under The Contributory Negligence Act, R.S.S. 1978, c. C-31, against Rhonda Lynn Bacon by reason, inter alia, that she knew the dog had bitten the defendants' son, Tamal, prior to September 27, 1986, and despite this knowledge she voluntarily brought the plaintiff minor to the home of the defendant, Kelly Lynn Ryan, knowing the dog would be there and took no care to keep the plaintiff minor from the dog while in the home.
4 While contribution and indemnity is contemplated by The Contributory Negligence Act, the presenting of a third party claim at the opening of trial is not an approved way to manage a law suit. The court was faced with three choices: (1) proceeding with the trial without permitting the third party notice to be presented, (2) proceeding with the trial and allowing the third party notice to proceed, or (3) granting leave to serve the third party notice and adjourning the trial to permit consequential steps to be taken.
5 Rejection of the third party claim would leave the prospect of a further trial on the same facts pursuant to s. 11 of The Contributory Negligence Act. The effect of that section is summed up in the Queen's Bench Rules of Saskatchewan: Annotated, McKeague and Voroney, first ed., under R. 107A, as follows:
The plain meaning of The Contributory Negligence Act, s. 11, is that, notwithstanding any other statutory limitation period, the defendant tortfeasor may recover contribution from a third party joint tortfeasor if his proceedings are commenced within one year after he himself has been found liable or has settled the claim against him: Campbell v. Bartlett (No. 2) (Sask. C.A., 1980), supra rule 107. Note: defendant could not join joint tortfeasor as co-defendant after expiry of the (other) limitation period, but he could claim contribution; and now see s. 44(11) of The Queen's Bench Act, and Intervention of limitation period, under rule 38.
6 Because the third party, Rhonda Lynn Bacon, had been the litigation guardian throughout, I concluded that no actual prejudice would occur to either the plaintiff minor or the third party in presenting the facts or the law relating to the third party claim. For these reasons, and to prevent a multiplicity of proceedings (The Queen's Bench Act, R.S.S. 1978, c. Q-1, s. 44, R. 7) the court permitted the defendant to assert the third party claim in the trial without further compliance with the Rules. It was ob vious, of course, that the third party denied the claim without presenting a formal response asserting that denial.
2. Litigation guardian.
7 The litigation guardian had filed an affidavit that she had no interest adverse to that of the minor. This was no longer true in light of the third party claim. Rule 42(1) provides, in part, as follows:
42(1) A minor may commence, continue or defend a proceeding as if of full age where:
(c) before or after commencing the proceeding he obtains the leave of the court.
8 Considering the late stage of the action, for purposes of trial it was ordered that the plaintiff minor have leave to continue without a litigation guardian and also that counsel for the plaintiff minor, having agreed to do so, may continue to act for the plaintiff minor and the third party for the purposes of the trial. The solicitors for the plaintiff minor and third party shall send a copy of this judgment to the Public Trustee for Saskatchewan, and shall do so promptly.
3. Notice to admit facts.
9 The plaintiff had given notice to admit facts in the following form:
TAKE NOTICE that the Plaintiffs in this action require the Defendants to admit, for the purposes of this action only the several facts respectively hereunder specified; and the Defendants are hereby required, within six days from the service of this notice, to admit the said several facts, saving all just exceptions to the admissibility of such facts as evidence in this action. The facts, the admission of which is required, are:
(1) All facts set out in this Plaintiff's Brief of Law, indexed as "Facts"; "Nature and Extent of Injuries"; "Schedules"; and "Claim Assessment and Quantum Summary";
AND FURTHER TAKE NOTICE that if you do not within the aforementioned six days give notice that you do not admit the said facts and that you require the same to be proven at the trial you shall be deemed to have admitted the said facts unless the Court or a Judge shall have otherwise ordered.
10 No response of any kind had been made by the defendants to such notice and this failure had not been pursued by the plaintiff minor. The defendants' counsel informed the court the defendants did not accept the validity of the notice. Rule 244 permits any party to call on another to admit "any specific fact or facts". The admission required by the plaintiff minor, seeking as it does the admission of the plaintiff minor's entire case, is too general and, without intending to put a narrow meaning to the word "specific", does not constitute a call to admit a "specific" fact or facts. Even reading R. 244 with R. 152, which requires a party to admit allegations in the pleadings of the other party which he knows to be true, the defendants are not required to give the general admissions sought by the plaintiff minor.
4. Medical Evidence.
11 The defendants objected to the plaintiff minor's calling of medical evidence by reason that the expert witness notice had not been given pursuant to R. 284D. (The defendants' failure to comply with the third party notice requirements did not mean that they accepted any deficiency in the plaintiff's preparation for trial.)
12 These matters were disposed of as follows:
13 (1) The medical reports were admissible under The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, s. 32.
14 (2) The medical practitioner was not called, and it is therefore unnecessary to determine whether his testimony as to what he did and saw would qualify as expert evidence when no expert opinion was being sought.
5. Quasi Criminal "Conviction".
15 A further matter was the admissibility of evidence of orders made with respect to the dog. One of these documents certified the following:
BE IT REMEMBERED that on the 29th day of October A.D. 1986 at Regina in the said province, Troy Richard Csada hereinafter called the accused, was tried under Part XXIV of the Criminal Code upon the charge that on the 27th day of September A.D. 1986 at Regina in the said province did keep or own a dog which in the City of Regina attempted to bite a person, relative to which a complaint has been made, being liable pursuant to section 17 of City of Regina Bylaw 6321 was convicted of the said offence and the following punishment was imposed upon him namely, he was ordered to have his pit bull terrier destroyed and any further dogs which come into his possession to be kept under control.
16 Part XXIV of the Criminal Code, R.S.C. 1985, c. 46, is a reference to procedure. It is not suggested that the offence was a Criminal Code offence; it is a City bylaw offence.
17 The rule in English law is that convictions for conduct offensive to Her Majesty are not admissible in evidence in other proceedings. This rule has been subject to considerable criticism in Canada.
18 A suitable discussion is presented in The Law of Evidence in Canada by Sopinka, Lederman and Bryant at p. 1042 et seq. The Ontario Court of Appeal held that the English rule was never the law in Canada. The authors continue as follows:
... a criminal conviction is admissible as prima facie proof that the party against whom the conviction was rendered committed the offence. That party can rebut this finding, but only so long as it would not be an abuse of process for it to do so.
The conviction is not, however, admissible as prima facie proof of every factual finding made in the previous criminal proceeding, only those necessary for the court's determination of the charge. The criminal conviction must, of course, be relevant to the civil proceedings, but the lack of an exact identity of issues between the criminal and civil proceedings goes to weight only, a matter for the trier of fact. Any factor mitigating the effect of or explaining the conviction will be relevant. If the party defended the criminal proceeding on the merits and took every avenue of appeal these will be factors giving the conviction greater weight. Where the prejudicial effect of the previous conviction outweighs its probative force, the judge may exercise his or her discretion to exclude it. This principle applies to convictions under federal, provincial or municipal legislation ... (Emphasis added)
19 The provisions in The Saskatchewan Evidence Act are not intended to be a Code or to limit the use or admissibility of such evidence. The specific rejection, in Saskatchewan, of the English rule for one purpose does not constitute or imply an adoption of the English rule for other purposes. However, I place little or no reliance on the certificate because the testimony of the defendant, Csada, and other evidence, presents a picture from which an appropriate conclusion may be drawn.
The Case
20 In August, 1986, the defendant, Kelly Lynn Ryan (now Csada), and her son, Tamal (or Tama as he was more frequently called), moved into a residential condominium unit in Regina. The defendant, Troy Richard Csada, her boyfriend and now husband, lived with her on weekends and occasionally on weeknights, but also lived with his mother on Magee Crescent, in Regina.
21 The plaintiff minor and her mother, Rhonda Lynn Bacon, moved into the same condominium complex in 1986, met the defendant, Kelly, and visited Kelly and Tama several times a week. The plaintiff minor was born December 13, 1982, and Tama was born May 10, 1983. The two children were, therefore, of approximately the same age.
22 Tama wanted a pet. Kelly said they looked in the paper and located one. Kelly, Troy and Tama went to get the dog and heard good things about it from the previous owner. They took the dog, a young pit bull apparently less than a year old.
23 On about September 14, 1986, Troy took the dog to the veterinarian. On his return Tama was on the floor playing by the kitchen table. The dog's dish was near the counter and Troy fed the dog. Troy told Tama to take his toys away from there. The dog bit Tama. According to Kelly "It was that fast". Troy grabbed the dog, Kelly grabbed Tama and they took the child to the hospital emergency ward.
24 Kelly and Troy were very upset and Troy was going to kill the dog but refrained from doing so because the police said that if he did he would be arrested. They called the Humane Society and were told to make sure the dog was not rabid. Kelly and Troy decided to put the dog down but later changed their minds.
25 On September 27, 1986, Rhonda and the plaintiff minor went to visit Kelly and Tama. Rhonda knocked and they were told to come in. Rhonda placed the plaintiff minor on the floor and in short order the child was bitten by the dog. The injury to the plaintiff minor was similar to, but more serious than, the injury inflicted on Tama.
26 In due course an order, in the form noted above, was made as to each defendant, and the dog was destroyed.
27 Notwithstanding the persuasive arguments of defence counsel, I am satisfied that the dog, having recently demonstrated his propensity for biting a young person, represented a risk and it was kept by Kelly and Troy at their peril. The headnote of Stanford v. Robertson, [1946] 3 W.W.R. 767 (Alta. C.A.), states the applicable law succinctly, as follows:
Where the owner or keeper of a dog, or a person who is under the duty of keeping control of it, knows that it has a propensity to attack mankind he is under an absolute duty to so confine or control it that it will not do so. The test of responsibility is not ownership. There may be many circumstances under which a person who is not the owner or in actual possession of it may be under the duty to exercise such control. Knott v. London County Council, [1934] 1 K.B. 126, 103 L.J.K.B. 100, applied; Read v. J. Lyons Ltd., [1946] 2 All E.R. 471, referred to.
There is no reason why two or more persons may not be held jointly liable for an injury inflicted by the same dog.
28 I do not propose to enter a consideration of whether or not "negligence" is a required ingredient as seems to have occurred in some of the cases. I am satisfied (a) the dog had demonstrated its propensity to bite a small child and this propensity may be considered to be more severe because of the fact that the first child was one with which the dog was very familiar, and (b) harbouring the animal constitutes actionable fault and a basis for liability for damage occasioned by a repetition by its already demonstrated propensity.
29 Kelly said that she owned the dog. In her brief she suggests that she is judgment proof.
30 In many cases the owner may be the person in whose mind, hands and name will rest the attributes of responsibility required to attract liability for the conduct of the dog. But ownership is not the key. This is not a case involving title to the dog. (In a contest between Kelly and Troy she might successfully contend that she owns and is entitled to possession of the dog.) It is a question of which person or persons exercise possession and control over the dog.
31 In Usselman v. Bartsch (1982), 17 Sask. R. 134 (Q.B.), Mr. Justice Walker, at p. 135, correctly, in my view, identified the proper approach in referring to a claim for injury to a child "by a dog (owned and) harboured by the defendant". The significant word is "harboured". The word "owned" merits only parenthesis.
32 Troy acknowledged his ownership before the Justice of the Peace on October 29, 1986, although that acknowledgement is not conclusive. The defence witness, McGillivary, testified as follows:
Q. Did he speak of it as his dog?
A. Yep. All the time.
33 Troy took the dog to the veterinarian on September 4, 1986, and again on September 14, 1986. The veterinary clinic records show the owner as being Troy Csada, 298 Magee Crescent, S4R 6K9. This is his mother's address. Kelly never lived there. Troy took the dog to his mother's and to his friends' places. He brought the dog home and fed him when the dog bit Tama.
34 The fact that Troy was absent at the particular moment of the incident with the plaintiff minor is to be considered. Ownership or a holding out may be considered on the question of who exercised the appropriate possession and control.
35 After the first bite Troy acknowledged that both he and Kelly were leery of the dog. But they liked the dog, and nothing was done. From his farm experience Troy was not persuaded that one bite was absolutely necessary grounds for destroying a dog. However, I am satisfied that Kelly and Troy together, and jointly, exercised sufficient elements of possession and control, and together harboured the dog. I am satisfied that Kelly and Troy together, and each of them, had control and possession of the dog with full personal knowledge and appreciation of the dog's propensity to bite a young child.
36 This constitutes fault. I would, if necessary, accept also that it represents negligence as having done something which a prudent person would not have done, but fault will do.
37 The plaintiff minor suffered immediate facial cuts. She spent two days in hospital and underwent reconstructive surgery on two occasions thereafter. She may have had nightmares. It is argued that children may suffer nightmares in any event, but I infer that the trauma probably contributed to her unpleasant dreams.
38 She also suffered permanent scarring. My attention was not drawn to a scar which counsel said was near her eyes. An attempt was made to discover a scar under her chin and disclose it to the court, but with no success. The poor light may have hampered these efforts.
39 The plaintiff minor has a permanent scar along the facial line to the left of her mouth and below and to the left of her nose. I am satisfied the scar is a problem to a 13-year-old girl and will remain noticeable for the rest of her life.
Disposition
40 I assess damages for pain and suffering, including mental anguish, at $12,000.
41 Special damages were not proved.
42 A letter from Saskatchewan Hospital Services Plan was placed in evidence. It was not admitted by the defence and no authority was offered for accepting that letter as proof of the claim.
43 Pre-judgment interest was claimed. The claim was not brought to trial until nine years after the incident which gave rise to it. A review of the court record does not demonstrate that any party is more at fault than the other for the delay, but to the extent that it was in the hands of the plaintiff, the plaintiff cannot "invest" its claim at the pre-judgment interest rate for an extended period. I determine that pre-judgment interest for the first six years from the incident would be appropriate.
44 Kelly had watched the dog for a whole week after the incident with Tama, and "it was the same old Willie". Rhonda had visited Kelly after the attack on Tama, and, according to Kelly, had no qualms about the dog.
45 Kelly undoubtedly became progressively less concerned about the risk of a repeat of Willie's actions. Rhonda had not been present at the Tama incident, and Kelly's attitude was not one from which a warning could be taken. Nonetheless, Rhonda was aware that the dog had bitten Tama. She might have expected the dog to be restrained but she became aware when she entered the home that it was not, and she placed the plaintiff minor on the floor. I am satisfied that Rhonda failed in her duty, and is liable in part, at least, for the injuries sustained by the plaintiff minor. For purposes of the third party notice the fault is apportioned as follows:
46 Rhonda Lynn Bacon -- one-third
47 Kelly Lynn (Ryan) Csada and Troy Richard Csada -- two-thirds.
48 The plaintiff minor shall have judgment against the defendants jointly and severally for $12,000, pre-judgment interest as hereinbefore determined as appropriate, and costs on column 4 of the tariff which applied to May 31, 1991, and on col. 2 of the applicable tariff thereafter, to be taxed.
49 The defendants shall have judgment against the third party for one-third of the amount of the defendants' liability to the plaintiff minor for damages and pre-judgment interest, and one-third of the costs of preparation for trial and the trial but no costs of the pre-trial conference or the third party notice. No writ of execution or garnishee summons shall be issued against the third party by the defendants without leave of the court.
50 The parties' attention is drawn to the head "Enforcement of Contribution Judgments" p. 122 et seq. of Apportionment of Fault In Tort, by David Cheifetz (Aurora: Canada Law Book Limited, 1981), including the following, at pp. 123 and 124:
It is to T1's advantage to assign the judgment to P since any amount that P collects from T2 will reduce the amount that T1 is liable to pay P correspondingly. In this way, even if T1 lacks sufficient funds to satisfy P's judgment, P's recovery will be increased, up to the maximum of his judgment, by the amount of contribution that T2 becomes eligible to pay T1 as a result of T1's payments to P.
Order accordingly.