The child plaintiff was at her daycare under appropriate supervision while in the playground when she was bitten on the hand by a neighbouring German Shepherd. The dog squeezed through an unmended gap in the fence and bit the child while she was on the swings; daycare staff were not negligent in supervising the children. While the dog had no history of biting, it was excitable and barked aggressively towards strangers outside the yard; the fence was in poor repair, but the owner had not thought it necessary to use the secure dog run that existed on his property. he was found negligent for not better securing and supervising the dog.
1 A German shepherd owned by the defendant Edward Horkoff bit the 3-year-old plaintiff, who at the time was under the care of the defendants Beatrix Racine and Loretta Sallenbach, employees of the defendant Marlborough Day Nursery Ltd. ("Marlborough"). The incident occurred at a playground.
2 The issues arising are:
3 1. Is the defendant Horkoff liable in negligence for failure to properly restrain his dog from access to the child playing in the playground?
4 2. Did the defendant Marlborough or its employees breach the standard of care required by a nursery school?
5 3. What is the assessment of damages for injuries sustained?
Facts
6 The plaintiff Shawna Bates was 3 years old and had been attending Marlborough Day Nursery for a few months prior to the accident which occurred on April 9, 1986. She was in a class comprised of 3- and 4-year-olds, with a ratio of 8 children to one instructor. That ratio met the provincial guidelines. On the fateful day in question, Ms. Racine and Ms. Sallenbach took 12 children, including Shawna, on an excursion to a local playground adjacent to the property owned by the defendant Horkoff at 5244 Marlborough Place N.E. Her mother was aware that the class went on such outings.
7 Upon arriving at the playground, Ms. Racine undertook a visual scan of the grounds. Satisfied that there were no strangers or stray animals in the park and that there was nothing out of the ordinary present, she proceeded to remind the children of the day care's playground rules, which included an instruction to play together. The day care employees were unaware of the presence of the Horkoff dog in his backyard. They did not walk around the perimeter of the playground and look into each backyard. The children then proceeded to the playground equipment, consisting of a climbing bar, a house for climbing, swings and a slide. The swings were approximately 25 to 30 feet from the perimeter of the defendant's property, where the dog was being kept.
8 While Ms. Sallenbach was busy with one group of children, Ms. Racine attended to the other. Immediately preceding the injury to Shawna, Ms. Racine had been pushing one child on the swings, and Shawna had been at her side. Shawna was very attached to Ms. Racine and usually stayed close to her. Ms. Racine estimated it was a matter of a few seconds (at the most a minute and a half) between the time she last saw Shawna and when she heard her scream. She turned to see Shawna being pulled up against a fence bordering one side of the park area.
9 Upon arriving at the scene both Ms. Racine and Ms. Sallenbach discovered that a German Shepherd dog had hold of Shawna's hand and was engaged in a "tug-of-war," with the dog trying to pull Shawna through the fence into Horkoff's backyard and Shawna trying to escape from the dog's grip.
10 After arriving at the fence, the two day care workers were able to free Shawna and, upon noticing her injuries, took her to the neighbours to call for help. She was eventually taken to the hospital, where she was treated.
11 The only divider between the backyard of Mr. Horkoff and the playground was a metal fence with offsetting panels which completely enclosed the property. The fence, built in 1975, consisted of posts eight feet apart, with a rod across the top and across the bottom. Vertical slats were then put on and clamped with a screw at the bottom and the top. The panels were seven inches wide and five feet high and placed alternatively one on the outside of the rail and one on the inside in an offsetting manner, thereby creating a natural gap large enough to easily reach through. Mr. Horkoff acknowledged that the panels would shift from time to time and there would be a gap in the fence requiring adjustment. He did not recall the last time they had been adjusted.
12 The dog was kept in the backyard and was not restrained in any manner other than by the fence. The Horkoffs would depart for work in the morning, leaving the dog alone in the backyard. He was not on a leash nor was he placed in a dog run. Although Mr. Horkoff owned a dog run, he did not believe that this dog needed to be in one. There was no sign warning of a dog on the premises.
13 Ms. Racine said that during the incident in question the dog's nose protruded through the fence into the playground. She could see the entire snout of the dog through the fence. Ms. Sallenbach said there was a gap and she pushed it even further apart to allow Ms. Racine to kick the dog and free the child. Shawna was then taken for treatment to her injuries.
14 Constable McCoubrey investigated the dog attack on April 9, 1986. His evidence was that the fence was in need of repair and that there were large gaps in it. He took photographs, which were entered in evidence, indicating there were gaps in the fence at that time. He also gave evidence that while he was there the dog ran at the fence and was able to come part way through the fence up to its shoulders. His evidence was that the fence was in very poor condition; some panels had half a screw, some had a whole screw.
15 With respect to the temperament of the dog, the owner gave evidence that he was unaware of any previous dog bite perpetrated by the dog. He said the dog was playful, and when it saw children in the park it would bark at them. The dog had never escaped from the yard. He was aware that children played on the playground equipment in the adjoining playground. The dog weighed approximately 120 pounds and was approximately 5 1/2 feet high. He acknowledged that the day following the accident there was a gap in the fence six to seven inches wide, large enough for the dog's head to go through. A child could, even without the gap, put an arm through the fence between the offsetting panels.
16 Mr. Sabb, a long time neighbour of the Horkoffs, gave evidence that he had seen the dog play with his children on many occasions. He said the dog barked a lot and played a little rough. Although he said he never saw any meanness, he acknowledged the dog got excited and would run up and down the fence and bark any time someone came near it.
17 The evidence of Constable McCoubrey was that when he approached the rear gate he heard loud barking. While he walked the length of the fence inspecting it, the dog was barking, baring its teeth, growling and chewing on a piece of four by four wood. The dog would quickly run at the fence and would come halfway through the fence, up to its shoulders. The dog was trying to squeeze itself through the fence.
18 Mr. Horkoff's reason for not putting a leash on the dog or keeping it in a dog run was that he had never received any complaints about the dog hurting anyone. He acknowledged the dog was playful. He also acknowledged that when he went to pick the dog up at the pound it was barking very loudly in its cage.
19 Injuries were sustained which are described later in this judgment.
1. Is the defendant Horkoff liable in negligence for failure to properly restrain his dog from access to the child playing in the playground?
20 It is well established at common law that an owner of a dog is strictly liable for injuries caused by it if the animal was mischievous or vicious and the owner knew of these propensities: for example, see Stanford v. Robertson , [1946] 3 W.W.R. 767, [1947] 1 D.L.R. 493 (Alta. C.A.) ; Lupu v. Rabinovitch, [1975] 5 W.W.R. 1, 60 D.L.R. (3d) 641 (Man. Q.B.); Dirks v. Binning, [1975] 1 W.W.R. 73 (B.C.S.C.). The owner, based on his scienter (knowledge), is absolutely liable for any damage caused by the dog, notwithstanding that generally the common law recognizes that it is not in the ordinary nature of a dog to injure mankind: Raisbeck v. Desabrais, [1971] 1 W.W.R. 678, 16 D.L.R. (3d) 447 (Alta. C.A.). In this case the evidence falls short of establishing knowledge of vicious propensities, such as would impose strict liability.
21 However, the liability of a dog owner for damage caused by his dog does not necessarily have to be founded on the rule of strict liability for dangerous animals. Rather, such liability may be established in a negligence action: see Caine Fur Farms Ltd. v. Kokolsky, [1963] S.C.R. 315, 45 W.W.R. 86, 39 D.L.R. (2d) 134; Raisbeck v. Desabrais; Draper v. Hodder, [1972] 2 Q.B. 556, [1972] 2 All E.R. 210 (C.A.); Sgro v. Verbeek (1980), 28 O.R. (2d) 712, 111 D.L.R. (3d) 479 (H.C.); Gill v. MacDonald (1977), 2 C.C.L.T. 249, 80 D.L.R. (3d) 21, 14 Nfld. & P.E.I.R. 438, 33 A.P.R. 438 (P.E.I.S.C.); Thordarson v. Zastre (1968), 65 W.W.R. 555, 70 D.L.R. (2d) 91 (Alta. C.A.); Nasser v. Rumford (1977), 5 Alta. L.R. (2d) 84 (C.A.).
22 Martland J., in the case of Caine Fur Farms Ltd. v. Kokolsky, sets out the requirements for the negligence action as follows, at p. 317 [S.C.R.]:
The liability of a dog owner for damage caused by his dog did not necessarily have to be founded on the rule of strict liability relating to the keeping of dangerous animals. It might be established in negligence if, in the circumstances, a duty to take care in relation to the dog existed and there had been a breach of it. This proposition was recognized by the House of Lords in Fardon v. Harcourt-Rivington [(1932), 146 L.T. 391], and it is stated by Lord Atkin in that case, at p. 392, as follows:
But it is also true that, quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour -- the ordinary duty to take care in the cases put upon negligence.
This decision was later followed in Alberta by McDermid J.A. in Raisbeck v. Desabrais.
23 The negligence action was also the subject of extensive and helpful comment in the British case of Draper v. Hodder, supra. In that case Davies L.J. refers to the existence of the negligence action, at p. 214 [All E.R.]:
... certain modern authorities show clearly that an owner or keeper of an animal may quite apart from the scienter rule be liable for damage done by that animal if the owner or keeper puts it or allows it to be in such a position that it is reasonably foreseeable that damage may result ...
Davies L.J. then goes on, at pp. 214-15, to refer to Sycamore v. Ley (1932), 147 L.T. 342 (C.A.), where Greer L.J. said at pp. 344-45:
Liability for damage caused by the bite of a dog is not, in my judgment, confined to the cases where it has to be made out that a dog had, by reason of its ferocious character known to the defendant, to be taken out of the class of tame animals and put into the class of wild animals.
... that is not the end of his liability. He may, in my judgment, be liable for the conduct of a dog which has not been taken out of the category of tame animals if he puts it in such a position and in such circumstances as render it likely that the dog will get excited, will lose its temper, and will cause damage to people lawfully passing along the highway ...
Davies L.J. then, at p. 215, refers to Searle v. Wallbank, [1947] A.C. 341, [1947] 1 All E.R. 12 (H.L.), where Lord de Parcq places two qualifications upon a claim in negligence, at p. 21 [All E.R.]:
... first, that where no such special circumstances exist negligence cannot be established merely by proof that a defendant has failed to provide against the possibility that a tame animal of mild disposition will do some dangerous act contrary to its ordinary nature, and, secondly, that, even if a defendant's omission to control or secure an animal is negligent, nothing done by the animal which is contrary to its ordinary nature can be regarded, in the absence of special circumstances, as being directly caused by such negligence.
24 The decision of Edmund Davies L.J. in Draper v. Hodder, supra, at p. 219 states it as follows:
The defendant's knowledge of "the nature of the beast" which is basic to "scienter" liability is also directly relevant both to the question of whether he was negligent at all and furthermore, if he was, whether he ought reasonably to have foreseen the damage which in fact resulted therefrom. That is not, of course, the same as saying that proof of "scienter" is indispensable in an action for negligence. As Pearson LJ put it in Ellis v. Johnstone, [[1963] 1 All E.R. 286 at p. 297]:
For the action of negligence, it is sufficient if the defendant knew, or ought to have known, of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required.
25 In Sgro v. Verbeek, supra, Craig J. cites with approval the explanation by Davies L.J. that the "special propensity" or "special circumstances" will depend upon the facts of each individual case. Similarly, in the case of Gill v. MacDonald, supra, MacDonald J. confirms Draper v. Hodder, supra, and then goes on to say, at p. 254 [C.C.L.T.]:
For the action of negligence, all that is necessary to prove is that the owner knew, or ought to have known, of the existence of the danger, which need not arise from the vicious propensity of the animal although, as stated in Draper, perhaps some "special propensity" or "special circumstances" are required, and, as indicated there, the answer to that question must depend on the particular facts of each individual case.
26 In summary, could the owner of the particular animal, with its particular characteristics, in the particular circumstances, have reasonably foreseen the danger that could result in damage?
27 What then are the particular facts in the case at bar? For one, the yard was situated next to a playground. Mr. Horkoff knew that numerous children frequented the playground, and that many of these children were not familiar to the dog. While the dog had previously been allowed to play with neighbourhood children without event, Mr. Horkoff was never able to witness the dog's behaviour towards strange children because, except for walks with Mrs. Horkoff, the dog was kept in the backyard. Testimony from Mr. Horkoff's neighbour was to the effect that the dog would get excited and bark at people in the playground and occasionally stood up against the fence while doing so. Indeed Mr. Sabb's evidence was that the dog played "a little rough" with his and the Horkoff children. The constable gave evidence that the dog was very aggressive, although that behaviour was after the incident. I am satisfied that the dog was very excitable. While perhaps there had been no prior incident sufficient to take the animal out of the category of tame animal and impose strict liability, the evidence established an excitable temperament.
28 The dog was a German shepherd, a breed characterized by substantial physical size. Mr. Horkoff's dog was certainly no exception. It was contained only by a fence which was in a state of disrepair so that the dog was able to stick its head through the fence. Indeed, even if not in disrepair a child could put its hand through the fence.
29 I am mindful that a defendant need not guard against "fantastic possibilities": see Nasser v. Rumford, supra; Draper v. Hodder, supra, at p. 221. However, a defendant must be mindful of risks that are "real," that is, of risks that "a reasonable person would not brush aside as far-fetched or fanciful": see Fleming, The Law of Torts, 6th ed. (1983), p. 109. The risk here was real.
30 It should be recalled that the actual injury need not be anticipated: see Draper v. Hodder, supra, at p. 220, where Edmund Davies L.J. says: " ... the proper test in negligence is not whether the particular type of physical harm actually suffered ought reasonably to have been an ticipated, but whether broadly speaking it was within the range of likely consequences."
31 Considering all the factors together, Mr. Horkoff breached the duty of care he owed to the plaintiff. A reasonable person would have reasonably foreseen this dog could inflict serious injuries upon children playing nearby if it was not properly restrained. This is especially so when one considers the size and the excitable nature of the dog, the frequent and likely presence of very small children in the playground, and the poor state of repair of the fence, the only barrier preventing the dog from gaining access to the playground. Mr. Horkoff should have foreseen the very real risk his dog presented to children playing in the playground and maintained his fence in a state that would prevent access to small children and otherwise restrain the dog. Therefore, an injury to a child as a result of contact with the dog was reasonably foreseeable. A dog bite was within the range of likely consequences.
32 While neither the plaintiff nor the defendant argued that the Occupiers' Liability Act, R.S.A. 1980, c. O-3 (the "Act"), applied, they did raise the possibility. In my view, the plaintiff in the case at bar did not establish the circumstances immediately preceding the attack. That is, it has not been proven by the plaintiff that Shawna first reached through the fence into Mr. Horkoff's backyard. It is just as likely that the dog's head was protruding through the fence, so that the initial bite occurred on playground property. Therefore, it has not been proven by the plaintiff that the Occupiers' Liability Act applies.
33 If I am wrong and the Act does apply, thereby requiring a standard of care by Mr. Horkoff different from that required under ordinary negligence law, I am equally satisfied Mr. Horkoff has not discharged his statutory duty pursuant to the Act.
34 The relevant provisions of the Act are as follows:
13(1) When an occupier knows or has reason to know
(a) that a child trespasser is on his premises, and
(b) that the condition of, or activities on, the premises create a danger of death or serious bodily harm to that child,
the occupier owes a duty to that child to take such care as in all the circumstances of the case is reasonable to see that the child will be reasonably safe from that danger.
(2) In determining whether the duty of care under subsection (1) has been discharged consideration shall be given to
(a) the age of the child,
(b) the ability of the child to appreciate the danger, and
(c) the burden on the occupier of eliminating the danger or protecting the child from the danger as compared to the risk of the danger to the child.
(3) For the purposes of subsection (1), the occupier has reason to know that a child trespasser is on his premises if he has knowledge of facts from which a reasonable man would infer that a child is present or that the presence of a child is so probable that the occupier should conduct himself on the assumption that a child is present.
35 Mr. Horkoff was an occupier within the meaning of the Act. Assuming Shawna was a trespasser, then Mr. Horkoff is deemed to know of her presence by reason of subs. (3). On the facts, namely, the frequent presence of children in the adjoining playground and the state of the fence separating the same from his backyard, a reasonable man would infer that the presence of a child was probable. Therefore, Mr. Horkoff was required to conduct himself based on the assumption that a child would be present.
36 As for the requirement that the occupier must know or have reason to know that the condition or activities on the premises create a danger of death or serious bodily harm to a trespassing child, for the same reasons previously set out Mr. Horkoff knew or should have known that a dog as large and excitable as his constituted a danger to children present on his property.
37 Considering that the duty required of the defendant Mr. Horkoff according to ordinary negligence law bears similarity to the statutory duty set out under the Act, the preceding discussion with respect to the breach of a duty by Mr. Horkoff under ordinary negligence law is helpful. According to the Act, Mr. Horkoff was required to take such care as was in the circumstances reasonable to see that a child was reasonably safe from harm. The circumstances, to reiterate, were that children were frequently present nearby, the fence was in a poor state of repair, and the dog was excitable, unrestrained and unsupervised during the day. All of the above indicate a breach of the statutory duty owed by Mr. Horkoff to the plaintiff. This is especially so when one considers the enumerated factors to be considered under subs. (2) of the Act. Shawna was only 3 years old at the time of the attack, and most certainly could not appreciate the danger present. Furthermore, it would not have been difficult for Mr. Horkoff to eliminate or at least reduce the risk present. The fence could have been constructed to prevent access, or the dog could have been put on a leash or placed inside, at least during the time Mr. Horkoff was not home.
2. Did the defendant marlborough or its employees breach the standard of care required by a nursery school?
(a) Liability of the defendants Racine and Sallenbach
38 The standard of care required of day care workers is that of the "prudent and careful parent": see Lapensee v. Ottawa Day Care Nursery Inc. (1986), 35 C.C.L.T. 129 (Ont. H.C.). The standard cannot be applied in the same manner and to the same extent in every case, but rather depends upon the circumstances: see Myers v. Peel County (Board of Education), [1981] 2 S.C.R. 21, 17 C.C.L.T. 269, 123 D.L.R. (3d) 1, 37 N.R. 227.
39 The issue is whether Ms. Racine and Ms. Sallenbach discharged the standard of care required of them. Ms. Racine testified that she undertook a visual scan of the enclosed playground after arriving there, and noticed nothing out of the ordinary. After reminding the children of the playground rules, she let the children play on the playground apparatus. She played with them and while doing so a child was able to run 30 feet to danger without being observed.
40 Would a "prudent and careful parent" have done anything more? In my opinion, I think not. I do not believe that a parent, taking his or her child to a playground, would attempt to look over every fence bordering the park in order to ensure no danger was lurking there. Rather, a parent would take notice of anything extraordinary, but in the absence of that would assume an enclosed playground to be a safe environment for children. There were no signs warning of dogs. Neither worker heard any barking prior to the incident.
41 What of the failure of the day care workers to adequately supervise the children as they were playing? Ms. Racine testified that she and Ms. Sallenbach took an interactive approach with the children, helping the children with the playground apparatus, which is what parents frequently do. Furthermore, she also testified that Shawna was generally her "shadow," constantly following her around. Thus, Ms. Racine had no reason to believe that Shawna would leave her side. When she did so on the day in question, she was gone for a very short time. It would not take a 3-year-old long to run 25-30 feet.
42 Would it have been safer if one of the workers had been in a position so that the entire playground was in her field of vision? It is argued that if this practice had been followed one of the workers would have been able to notice Shawna wandering over to the fence separating the playground from Mr. Horkoff's backyard.
43 In the case of Lapensee v. Ottawa Day Care Nursery Inc., supra, a home day care worker was found liable in negligence. In that case the defendant day care worker was responsible for the care of three children in her home, one of whom was the plaintiff. The defendant had been suffering from diarrhea, and upon being required to make an urgent trip to the washroom on the second floor, she picked up the children and took them with her. She placed the children in a bedroom, but did not close the door. She then proceeded to the bathroom, where she kept the door slightly ajar in order to be able to hear the children. However, she was not able to see the children or the flight of stairs nearby, which were not guarded by any fence or obstacle. The plaintiff, an infant at the time, left the bedroom and subsequently fell down the stairs, incurring very serious injuries. The defendant was held liable, on the grounds that the failure of adequate supervision, in addition to the presence of the real risk that one of the unsupervised children would fall down the unguarded stairs, constituted negligence.
44 In the case at bar, there was no equivalent to the stairs. The workers were not aware of a dog. There was no real risk present that should have been reasonably anticipated by the defendant day care workers.
45 Furthermore, I am not convinced that it would have been safer if one of the day care workers had stepped back, for that would have left one worker with 12 children playing on the playground apparatus. This activity required assistance from the workers in order to make it safe for the children. Day care workers, like parents, are not insurers of a child's safety. Indeed, accidents happen with parents and young children. It is easy to see a situation where a parent pushes one child on a swing and another child quickly darts off in another direction. Because a child is injured does not automatically mean the parent or caretaker was not acting carefully and prudently. In this case I am not satisfied a supervisor would have foreseen that injury would result if a child ran off to the fence. There was nothing to indicate that harm would befall a child running to the fence. Indeed, had there been a sign warning of the dog, that, coupled with the gaps in the fence, might have been sufficient to create a risk of harm that should have been foreseen. Such was not the case here.
46 I find that the defendant day care workers Ms. Racine and Ms. Sallenbach were not liable in negligence for the injuries to Shawna.
(b) Liability of the defendant Marlborough Day Nursery Ltd.
47 There was no evidence to suggest that the defendant Marlborough was directly liable for the injuries sustained by the plaintiff. Given my previous findings with respect to the liability of the employees, there can be no vicarious liability.
3. What is the assessment of damages for injuries sustained?
48 As a result of the dog bite, the child sustained an injury to her finger which required plastic surgery. She had her first operation the day following the incident. There was a skin graft taken from the buttocks area of the child. Her finger was splinted for two to three weeks and then put in a cast. In 1989 the finger started to curve as a result of the graft not growing at the same rate as the finger. A second skin graft was done on an out-patient basis, which involved taking a skin graft from the abdomen. It is estimated that as the child grows there will in all probability be at least one more operation if the finger tends to curve. There was no tendon damage. The permanent disability is as follows: sensory loss at the tip of the finger and an inability to straighten the middle knuckle completely, resulting in approximately a 15 per cent loss of extension, and a 5-10 per cent loss of flexion at the mid-knuckle. There is no involvement of the other joints of the finger. The child appeared in court, not to testify but to show her injury. There is no question that the scar is noticeable and quite unattractive on the palm side of the hand. Dr. Roth also stated that the child would have a slightly off-colour scar on her buttocks, about the size of a quarter, and a very narrow linear scar on her abdomen. If further surgery is required there would be a slight extension of the linear abdominal scar.
49 In total, there were 45 trips to physiotherapy or occupational therapy. A further operation would probably be done on an out-patient basis and there would be recovery time following it. The doctor does not estimate that the degree of loss of extension or flexion will be either improved upon or decreased as a result of further surgery.
50 There was no evidence that the injury would substantially affect the child's lifestyle. Her mother gave evidence that she appeared to have some fear of dogs, but the child did not give evidence. Certainly she was old enough to give such evidence.
51 The plaintiff submits a claim for $25,000.
52 In my view that submission is too high. There will be permanent scarring to Shawna's left hand, and a permanent loss of sensation in her finger. The scarring in the donor areas, a result of the skin grafts, was minimal. There is a loss of flexion and extension and a loss of sensation. In my view the most significant permanent damage is the unsightly scar on the index finger of her left hand. There was extensive physiotherapy and probably a minimum of one further surgery. I assess general damages at $8,500.
53 The plaintiff shall have judgment against the defendant Horkoff in the sum of $8,500 for general damages, special damages, including the Alberta Health claim, as agreed, together with interest under the Judgment Interest Act, S.A. 1984, c. J-0.5.
54 Her claim against all other defendants is dismissed.
55 Costs may be spoken to within one month.
Action allowed in part.