3) Dogs

At common law a dog is classified as a harmless animal (mansuetae naturae). A plaintiff must, therefore, establish that his injuries were caused by a dog that had previously displayed a propensity to cause such injuries and that the defendant keeper of the dog knew of its dangerous propensity. [Note 29: See, for example, Richard v. Hoban (1970), 3 N.B.R. (2d) 81 (S.C.A.D.).] This scheme of responsibility may well have been appropriate in a rural and agricultural society but urbanization, the increase in dog ownership, and the danger that some popular breeds of dogs pose to both children and adults have led some provincial legislatures to impose a heavier responsibility on the keepers of dogs. The legislation is not uniform. It commonly relieves the plaintiff of the burden of proving that the dog has previously shown a dangerous propensity about which the keeper knows. [Note 30: See, for example, Nova Scotia Stray Animals Act, R.S.N.S. 1989, c. 448, s. 12.] There is some uncertainty whether this creates a strict liability or whether it merely shifts the burden of proof to the defendant to establish the lack of scienter. One Act has taken the more straightforward approach of imposing an express strict liability for injuries caused by dogs, subject to a reduction in damages for the contributory negligence of the plaintiff. [Note 31: Ontario Dog Owners' Liability Act, R.S.O. 1990, c. D.16, s. 2. The same principle is applied to all animals in Manitoba under the Animal Liability Act, above note 23.]

4) The Scienter Action and Negligence

The scienter action and negligence are not mutually exclusive causes of action. A plaintiff who is unsuccessful under the scienter action may still establish that her injuries were caused by the negligence of the keeper of the animal. Some judges seem to prefer to use negligence principles, particularly in the not infrequent cases where some apportionment of the loss reflecting the plaintiff's contributory negligence appears to be appropriate.

Barry j. Reiter Melanie a. Shishler

Joint Ventures

(1999)

PART THREE, Implementing the Business Plan

CHAPTER 5, STRICT LIABILITY

E. CATTLE TRESPASS

1) Elements of Liability

An owner of cattle is strictly liable for damage caused by the escape of his cattle onto land in the possession of the plaintiff. [Note 32: See, for example, Acker v. Kerr (1973), 2 O.R. (2d) 270 (Co. Ct.). ] The term "cattle" has been defined expansively. It extends to most farm animals such as cows, sheep, goats, horses, pigs, and ducks. It does not include cats and dogs, probably because it has never been customary to fence in cats and dogs and landowners have been willing to accept the annoyance of occasional intrusion by them. The plaintiff is, normally, an occupier of neighbouring land and the most common complaint is damage to or destruction of crops. Liability does, however, extend to other forms of damage which flow from the trespass, including damage to land, chattels, other animals, personal injury to occupiers, and, possibly, personal injury to non-occupiers.

There are some exceptions to the strict liability of cattle trespass. When cattle escape onto adjoining land while they are being driven along a highway [Note 33: Goodwyn v. Cheveley (1859), 4 H. & N. 631, 157 E.R. 989 (Ex.).] or cause injury to motorists and passers-by when they escape from adjoining land onto the highway, [Note 34: Fleming v. Atkinson, [1959] S.C.R. 513.] liability must be established in negligence. [Note 35: Negligence is available as an alternative cause of action for damage caused by escaping cattle.]