Brewer v. Saunders, (1986) 73 N.S.R.(2d) 93 (CA)

• Judge: Jones, Morrison and Matthews, JJ.A.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 18, 1986
• Jurisdiction: Nova Scotia
• Citations: (1986), 73 N.S.R.(2d) 93 (CA)

Brewer v. Saunders (1986), 73 N.S.R.(2d) 93 (CA);

    176 A.P.R. 93

MLB headnote and full text

Brewer v. Randall and Ethel Saunders

(S.C.A. 01519)

Indexed As: Brewer v. Saunders

Nova Scotia Supreme Court

Appeal Division

Jones, Morrison and Matthews, JJ.A.

April 18, 1986.

Summary:

Brewer was bitten by a dog belonging to the Saunders. She commenced an action in negligence and based on the doctrine of scienter (strict liability) for damages against the Saunders. The Nova Scotia Supreme Court, Trial Division, in a decision unreported in this series of reports, dismissed her claim. Brewer appealed.

The Nova Scotia Supreme Court, Appeal Division, dismissed the appeal.

Practice - Topic 8800

Appeals - Duty of appeal court regarding findings of fact by a trial judge - The Nova Scotia Court of Appeal discussed when an appeal court will disturb the fact findings of a trial judge - See paragraphs 37 to 40.

Torts - Topic 250

Negligence - Animals - Dogs - The plaintiff was bitten by the defendants' dog - She sued for damages - The trial judge rejected the plaintiff's testimony respecting the circumstances surrounding the bite and concluded that the defendants were not responsible in negligence - On appeal the Nova Scotia Court of Appeal refused to interfere with the trial judge's fact findings and findings of credibility and dismissed the appeal - See paragraphs 35 to 49.

Torts - Topic 250

Negligence - Animals - Dogs - The Nova Scotia Court of Appeal discussed how the principles of negligence apply in cases where the issue was damages suffered from biting animals - The court held that liability of a dog owner for damage caused by his dog need not necessarily be founded on the rule of strict liability relating to the keeping of dangerous animals (scienter), but liability may be established in negligence, if in the circumstances, a duty to take care in relation to the dog existed and there was a breach of the duty - The court held that when the facts established negligence there is no need to resort to scienter - See paragraphs 21 to 35.

Torts - Topic 2106

Strict liability - Dangerous things - Keeping animals - Scienter - The Nova Scotia Court of Appeal discussed the principle of scienter, which at common law governed the owner's liability for damage caused by his animals - The court explained that according to the scienter principle if a dog bit a person, liability depended upon proof that the owner of the dog knew or ought to have known of the animal's dangerous character - The court continued that at common law certain animals were considered to be so dangerous to man that the keeper of them could not argue that he did not know of their nature and strict liability was imposed with certain defences permitted - See paragraphs 9 to 21.

Torts - Topic 2106

Strict liability - Dangerous things - Keeping animals - Scienter - Dogs - The Nova Scotia Court of Appeal stated that "at common law the party seeking damages for injuries done by a dog had to prove three things (1) that it was the dog in question that inflicted the injuries; (2) that the dog had a mischievous propensity to commit the particular injurious act; and (3) that the owner knew of such propensities; in other words had 'scienter'" - See paragraph 12 - The court pointed out, however, that s. 11 of the Stray Animals Act (N.S.) relieves an injured party of the onus of proving that the owner of the dog knew of its mischievous propensities (scienter) - See paragraphs 12 to 20.

Torts - Topic 2106

Strict liability - Dangerous things - Keeping animals - Dogs - Scienter - The plaintiff was bitten by the defendants' dog - She sued for damages - The trial judge rejected the plaintiff's testimony respecting the circumstances surrounding the bite and concluded that the defendants were not strictly liable on the basis of the doctrine of scienter - On appeal the Nova Scotia Court of Appeal refused to interfere with the trial judge's fact finding and findings of credibility and dismissed the appeal - See paragraphs 35 to 49.

Cases Noticed:

Bebbington and Bebbington v. Colquhoun (1960), 24 D.L.R.(2d) 557, refd to. [para. 17].

Lamontagne v. Brown (1963), 39 D.L.R.(2d) 199; 40 W.W.R.(N.S.) 230, refd to. [para. 17].

Lupu et al. v. Rabinovitch et al., [1975] 5 W.W.R. 1; 60 D.L.R.(3d) 641, consd. [para. 17].

Kirk v. Trerise et al., [1981] 4 W.W.R. 677, consd. [paras. 19, 23].

Caine Fur Farms Ltd. et al. v. Kokolsky, [1963] S.C.R. 315; 39 D.L.R.(2d) 134, consd. [para. 24].

Searle v. Wallbank, [1947] 1 All E.R. 12, consd. [para. 25].

Fardon v. Harcourt-Rivington (1932), 146 L.T. 391, consd. [para. 25].

Fleming v. Atkinson, [1959] S.C.R. 513; 18 D.L.R.(2d) 81, consd. [paras. 24, 27].

Draper v. Hodder, [1972] 2 All E.R. 210, consd. [para. 28].

Morris v. Baily (1970), 13 D.L.R.(3d) 150, consd. [para. 31].

Moffett et al. v. Downing et al. (1981), 120 D.L.R.(3d) 560, agreed with [para. 32].

White v. Power (1971), 4 N.S.R.(2d) 718, refd to. [para. 33].

Stubbard v. Baxter, [1938] 2 D.L.R. 605, refd to. [para. 33].

Sgro et al. v. Verbeek (1980), 111 D.L.R.(3d) 479, refd to. [para. 33].

Robinson and Robinson v. Phillips (1982), 35 Nfld. & P.E.I.R. 509; 99 A.P.R. 509, refd to. [para. 33].

Morsillo v. Migliano, 13 C.C.L. 1, refd to. [para. 33].

Blyth v. Company of Proprietors of the Birmingham Water Works Co. (1856), 11 Ex. Ch. 781, refd to. [para. 34].

Stein Estate et al. v. Ship "Kathy K" et al. (1975), 6 N.R. 359, refd to. [para. 37].

R. v. Stewart, 12 N.R. 201, refd to. [para. 37].

Rhodenizer v. Rhodenizer (1953), 31 M.P.R. 127, consd. [para. 38].

Greenlund et al. v. Drysdale (1958), 40 M.P.R. 320; 12 D.L.R. 765, consd. [para. 40].

Faryna v. Chorny, [1952] 2 D.L.R. 354, refd to. [para. 41].

Powell and Wife v. Streatham Manor Nursing Home, [1935] A.C. 243, consd. [para. 42].

Livesley et al. v. E. Clemens Horst Company, [1924] S.C.R. 605, consd. [para. 43].

Statutes Noticed:

Stray Animals Act, R.S.N.S. 1967, c. 294, sect. 11 [paras. 2, 15-20].

Authors and Works Noticed:

Salmond and Heuston on Torts (18th Ed.), p. 322 [para. 33].

Williams, Glanville, Liability for Animals, p. 345 [para. 30].

Wright and Linden, Canadian Tort Law (7th Ed.), generally [para. 22]; pp. 12-18 [para. 11].

Counsel:

Deborah E. Gillis, for Brewer;

Ross H. Haynes and Cathy L. Dalziel, for the Saunders.

This appeal was heard on March 14, 1986, before Jones, Morrison and Matthews, JJ.A., of the Nova Scotia Supreme Court, Appeal Division.

The following decision of the Appeal Division was delivered on April 18, 1986, by Matthews, J.A.: