Barking up the right tree
In her guest column in the June 2016 issue of BarTalk, Ms. Breder argues that the proposed Animal Liability Act (“ALA”) is problematic. Specifically, she says it puts too much responsibility on animals’ guardians.1 Although I understand Ms. Breder’s position, I disagree.
Yes, the proposed ALA would place a high degree of responsibility on owners or “harbourers” (we can collectively call these “guardians”) of animals. Liability would be imposed for injuries or damage caused by guardians’ animals regardless of whether their animal had a propensity for violence (or the guardian knew their animal had a propensity for violence).2 Ms. Breder provides the example of an animal protecting its property in support of her opinion that this is unfair. But what about a child delivering newspapers that is mistaken for an intruder? Or a guest in a home that is the victim of a “one-off” attack? Although the proposed ALA is victim-centred, it is the correct approach to dealing with these situations.
Ms. Breder says it would be “grossly unfair” for the conduct of victims not to be taken into account. But the proposed ALA does this: it expressly states “the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the harm.” This is an appropriate mechanism to allow liability to be apportioned onto the victim if it is appropriate in the circumstances.
The current law on animal-related injury or damage in BC is a hodgepodge of common law negligence, the doctrine of scienter, and the Occupier’s Liability Act. The proposed ALA would effectively override all of these, becoming the “go-to” piece of legislation for animal-related injury and damage claims in BC. This would simplify the claims process for both plaintiffs and defendants.
The proposed ALA is well crafted. It is concise and simple enough to be understandable while remaining sufficiently robust and encompassing to be effective. It takes into account potential liability of victims and multiple offenders while putting a high degree of responsibility on animal guardians. It promotes safety and accountability and discourages terrible situations of an animals being destroyed.
I agree with Ms. Breder that in order to fully minimize animal-related injury and damage, a proactive approach needs to be taken. Her idea of basic animal training courses being offered by municipalities in exchange for a reduced licensing fee is a good one. But I would argue that this should be taken further. I would argue basic training courses should be a required step of obtaining an animal license. I would also argue that animal owners should be required to carry liability insurance that covers injury or damage caused by their animal before they will be licensed.
The tort system exists to ensure people act in accordance with the standards expected of them by society in relation to the tasks they perform. Ensuring liability can be imposed on people that do not adhere to this standard is an important part of this, and the proposed ALA does just this.
- Original article can be found here | ↩
- The proposed ALA can be found here | ↩
Paul Bosco is an injury lawyer with experience in animal-related claims at Murphy Battista LLP.