Bates v. Horkoff et al., (1991) 119 A.R. 270 (QB)

• Judge: Conrad, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 25, 1991
• Citations: (1991), 119 A.R. 270 (QB)

Bates v. Horkoff (1991), 119 A.R. 270 (QB)

MLB headnote and full text

Shawna Bates, by her next friend Darlene Bates (plaintiff/petitioner) v. Edward Horkoff, Beatrix Racine, Loretta Sallenbach, Marlborough Day Nursery Ltd., John Doe and Jane Doe (defendants/respondents)

(Action No. 8801-03920)

Indexed As: Bates v. Horkoff et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Conrad, J.

October 25, 1991.

Summary:

The three year old plaintiff was bitten by a dog while on a nursery school outing to a playground adjacent to the backyard where the dog was fenced in. The plaintiff brought a negligence action for damages against the dog owner, the nursery school and its employees.

The Alberta Court of Queen's Bench found the dog owner negligent and assessed damages accordingly. The court dismissed the action against the nursery school and its employees.

Damage Awards - Topic 34

Personal injuries and death - Arm and hand injuries - Fingers - A three year old girl was bitten by a dog - Plastic surgery and a skin graft were required on her finger - No tendon damage - At least one more skin graft was necessary - Perma­nent disability in sensory loss in tip of finger and 5-10% loss of flexion at the mid-knuckle - Noticeable scar - Forty-five trips to physiotherapy - No evidence that the injury would substantially affect the girl's lifestyle - The Alberta Court of Queen's Bench assessed $8,500 general damages for nonpecuniary loss - See paragraphs 45 to 49.

Torts - Topic 21

Negligence - Standard of care - Child - Respecting - Nursery school - The Alberta Court of Queen's Bench stated that "the standard of care required of day care workers is that of the 'prudent and careful parent'... The standard cannot be applied in the same manner and to the same extent in every case, but rather depends upon the circumstances" - See paragraph 35.

Torts - Topic 21

Negligence - Standard of care - Child - Respecting - Nursery school - Two nurs­ery school workers took 12 children to a playground - After visually scanning the area and seeing nothing out of the ordinary one of the workers advised the children of the playground rules - The workers played with the children - A three year old momentarily wandered 30 feet away to a fence - A dog in the yard abutting the playground reached through the fence and bit the child or the child put her arm through the fence - There was no advance warning of the dog - The Alberta Court of Queen's Bench stated that the workers were not negligent - They acted as a prudent and careful parent would do and there was no foreseeable risk of danger if a child wan­dered next to the fence - See paragraphs 35 to 43.

Torts - Topic 261

Negligence - Animals - Duty to control - A German Shepherd ran loose in a fenced-in backyard - The yard abutted a playground frequented by children - The fence had large gaps and needed repairs - A three year old child who wandered near the fence was bitten when she either put her hand through the fence or the dog stuck its head through and grabbed her - Although the dog was not known to be vicious, it had a known excitable tempera­ment, was aggressive and a little rough in play - The Alberta Court of Queen's Bench found the dog owner negligent for failing to properly restrain the dog - There was a foreseeable risk of injury to children near the fence and the dog owner breached the duty of care owed to children using the playground - See paragraphs 17 to 28.

Torts - Topic 264

Negligence - Animals - Dangerous - Knowledge of - Liability of owner - The Alberta Court of Queen's Bench stated that "at common law...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" - The court stated that where evidence fell short of establishing knowledge of vicious propensities (i.e., scienter) the dog owner could still be liable in negligence - See paragraphs 17.

Cases Noticed:

Stanford v. Robertson, [1946] 3 W.W.R. 767, refd to. [para. 17].

Lupu v. Rabinovitch, [1975] 5 W.W.R. 1 (Man. Q.B.), refd to. [para. 17].

Dirks v. Binning, [1975] 1 W.W.R. 73, refd to. [para. 17].

Raisbeck v. Desabrais, [1971] 1 W.W.R. 678 (Alta. C.A.), refd to. [para. 17].

Caine Fur Farms Ltd. v. Kokolsky, [1963] S.C.R. 315, refd to. [para. 18].

Draper v. Hodder, [1972] 2 All E.R. 210 (C.A.), refd to. [para. 18].

Sgro v. Verbeek (1980), 111 D.L.R.(3d) 479 (Ont. H.C.), refd to. [para. 18].

Gill v. MacDonald et al. (1977), 14 Nfld. & P.E.I.R. 438; 33 A.P.R. 438; 2 C.C.L.T. 249 (P.E.I.S.C.), refd to. [para. 18].

Thordarson v. Zastre (1968), 65 W.W.R.(N.S.) 555 (Alta. C.A.), refd to. [para. 18].

Nasser v. Rumford (1977), 7 A.R. 459; 5 Alta.L.R.(2d) 84 (C.A.), refd to. [para. 18].

Sycamore v. Ley (1932), 147 L.T. 342, refd to. [para. 20].

Searle v. Wallbank, [1947] 1 All E.R. 12, refd to. [para. 20].

Lapansee v. Ottawa Day Care Nursery Inc. (1986), 35 C.C.L.T. 129 (Ont. S.C.), refd to. [para. 35].

Myers v. Peel County Board of Education and Jowett (1981), 37 N.R. 227; 17 C.C.L.T. 269 (S.C.C.), refd to. [para. 35].

Statutes Noticed:

Occupiers' Liability Act, R.S.A. 1980, c. O-3, s. 13 [para. 31].

Authors and Works Noticed:

Fleming, The Law of Torts (6th Ed. 1983), p. 109 [para. 26].

Counsel:

M.J. Blain (Nikitiuk Blain Roszler), for the plaintiff;

M.F. Casey, Q.C., and A.E. Wallis (Atkinson McMahon), for the defendants, Racine, Sallenbach and Marlborough Day Nursery Ltd.;

B.E. Corenblum (Lirenman Peterson Cor­enblum & Saltman), for the defendant, Horkoff.

This action was heard before Conrad, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the fol­lowing judgment on October 25, 1991.