Liability Due to Injury Caused By Animals Involves Scienter or Negligence As Common Law Principles, among other issuesPage last modified: March 04 2022
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If An Animal Causes Injury, Can the Owner Be Sued?
Generally, When Domesticated Animal Causes An Injury the Owner of the Animal Will Be Found Liable If the Owner Knew That the Animal Had a Propensity to Misbehave In the Way That Caused the Injury and Failed to Provide An Adequate Warning or Protection Against That Injury. For Undomesticated Animals the Law Greatly Differs.
Understanding When An Owner of An Animal May Be Liable For Conduct of the Animal
When an animal bites or kicks or engages in other conduct that causes injury to another person, the owner of the animal may be found liable if the owner was aware of the risk of injury and failed to take proper steps to protect others by providing a warning or another means of protecting others from the risk of injury or harm.
The law applicable to circumstances where domesticated animals, such as a horse, among others, cause an injury is known as scienter, which is a form of strict liability. Additionally, the law of negligence may also apply. In the case of Belton v. Spencer, 2021 ONSC 2029 both scienter and negligence were reviewed in a situation where a kick by a horse caused an injury and for each, scienter and negligence, it was respectively said:
 Under the scienter common law doctrine, the keeper of a dangerous or mischievous animal (“ferae naturae” or wild animals) will be held strictly liable for the injuries caused by that animal.
 Domesticated animals (“mansuetae naturae”) such as dogs, cows and horses are deemed to be harmless through domestication although they are not necessarily harmless by nature and are known at times to have dangerous or mischievous propensities. The presumption is rebuttable.
 Where a domesticated animal, such as a horse, has a dangerous or mischievous propensity that is known to the keeper, the keeper is strictly liable for any injury that is caused by the dangerous or mischievous propensity. There is liability without proof of negligence. Fridman, The Law of Torts in Canada, 3rd ed. at p. 239.
 For such an animal, a plaintiff injured by that animal can only attach liability on the owner or keeper if he establishes that:
a) the defendant was the owner of the animal;
b) the animal had manifested a propensity to cause the type of harm occasioned; and
c) the owner knew of that propensity. Zantingh v. Jerry  O.J. No. 6226 at para. 46; McKinlay v. Zachow 2018 ABQB 365.
 The burden of showing a dangerous or mischievous propensity of the animal which caused the injury is on the plaintiff.
 It will suffice if the defendant owner knew that the animal had previously committed or attempted to commit a dangerous or mischievous act. However, there must be a connection between the behaviour that caused the harm and the prior dangerous conduct. The behaviour that caused the harm need not be precisely the same as previously dangerous act or acts.
 Similarly, the plaintiff does not have to show that the prior behaviour caused the same harm in the past. It may suffice to prove that the defendant knew the animal previously had manifested a trait to do that kind of harm even if it had not caused the kind of harm in the past. Fridman, at pp. 239-240; Zantingh, at para. 24.
 In acting the way it did so as to cause the harm in question, the animal must have been acting out of character, with a viciousness or curiosity not natural to its species. Fridman at p. 240; Goddard v. Dunn and Levack Ltd,  1 D.L.R. 710 (Ont. C.A.)
 If the domesticated animal is proven to be vicious or to have acted in an uncharacteristic manner, it must be shown that the damage complained of by the plaintiff was caused by its acting in this way. Fridman at p. 240.
 The underlying rationale for scienter is that the owner of an animal who knows it to be dangerous or mischievous to humans or other animals or in any other way does so at their peril. The owner has created a dangerous or potentially dangerous situation involving risk to others. Cowles v. Balac, 2005 O.J. No. 229 ONCA at para. 129.
 The plaintiff is required to establish that the defendant owed him a duty of care, that the defendant’s behaviour breached the standard of care, that he sustained damage and that the defendant’s breach caused the plaintiff’s harm in fact and law. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3.
 In order to succeed, the plaintiff must prove both a breach of the standard of care as well as causation on a balance of probabilities. The plaintiff must prove that but for the defendant’s breach of the standard of care, the injury would not have occurred. It is not sufficient for the court to infer causation or to draw an inference based on common sense; the onus is on the plaintiff to lead evidence to demonstrate that the defendant’s negligent conduct caused the injury. Clements v. Clements, 2012 SCC 32; Fowlow v. Southlake Regional Health Centre, 2014 ONCA 193; Tahir v. Mitoff, 2019 ONSC 7298 at para. 41.
 Both parties agree that to establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone. There must be foreseeability of harm and unreasonable conduct. Put another way, it must be found that the owner of the particular animal, with its particular characteristics, and in particular circumstances, could have reasonably foreseen the danger that could result in damage. Wilk v. Arbour, 2017 ONCA 21 at para 39-40.
“…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.”
 With respect to foreseeability, it is enough to fix liability if the defendant could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable. The precise circumstances leading up to the accident need not be foreseeable provided that the general harm is reasonably foreseeable. Wilk v. Arbour, at para. 42-43.
The law applicable to circumstances where undomesticated animals, such as an elephant, lion, tiger, bear, among others, cause an injury differs from that as explained within the Belton case. The differences between the law for domesticated animals and undomesticated animals was very well explained within Cowles v. Balac, 2005 CanLII 2038 where it was said:
 This case raises the question whether the keeper of a wild vicious animal will be strictly liable for damage caused by that animal regardless of fault and in effect whether the law of strict liability in such circumstances remains a part of law of Ontario today. For the reasons that follow I have concluded that it does.
 The learned authors of the tort texts distinguish between the two classes of dangerous animals. The first category is of animals ferae naturae such as bears and lions – and quite obviously tigers would be included in this first category and the second category is of animals mansuetae naturae like cows, dogs and horses. As Fleming notes at p. 400 (Fleming, John G., The Law of Torts 9th edition 1998):
Animals of the first category are never regarded as safe, and liability attaches for the harm they may do without proof that the particular animal is savage.
and at p. 401:
…as regards the second class, it must be shown that the particular animal was dangerous and that the defendant knew, or had reason to know, it.
Classification of a particular species is a question of law for the court, to be decided either on the basis of judicial notice or expert evidence, …
and at p. 402:
When an animal of harmless species betrays its own kind by perpetrating damage, its keeper will not be held to strict liability unless actually aware of its dangerous disposition. …
and at page 405:
The range of defences is exceedingly limited. Indeed, no excuse seems to be admitted except the plaintiff’s own responsibility in exposing himself to injury.
It is well-settled, for example, that the defendant may take advantage of the victim having brought the injury upon himself through his own fault, as by stroking a zebra that is improperly secured or actually teasing an animal, though not by merely walking close to it unless in unreasonable disregard of obvious danger. Authority is unclear on whether contributory negligence ever constituted a defence such as would now reduce damages. Voluntary assumption of risk remains a complete defence, though nowadays rarely applicable except to zookeepers, veterinarians and the like….
 The views of Professor Fridman do not, in this area, in my view differ from those of Professor Fleming. In his text, Fridman, G.H.L. The Law of Torts in Canada 2nd edition Carswell), Fridman notes at page 250-1:
Under the scienter doctrine it is very relevant that harm has resulted from the keeping of an animal. The common law developed special rules to deal with the situation where damage was caused by animals, even before the emergence of the modern law of negligence, and quite distinct from the action for cattle-trespass, or under the much later doctrine of Rylands v. Fletcher. The scienter doctrine was, and remains a form of strict liability, that is to say, liability without proof of negligence. In this respect it is akin to both cattle-trespass and the Rylands v. Fletcher doctrine. However, the decisions and the language of the judges do not always make clear whether liability for what an animal does is based on this version of strict liability that is peculiar and pertains to animals, or is nothing more than a type of instance of negligence in which, perhaps, negligence is established once the defendant knows or is presumed to know of the dangerous character of the animal concerned. Indeed, an Alberta judge suggested that as strict liability was out of fashion, liability for animals should be founded on negligence rather than on scienter.
and at page 254-255:
3. The Scienter Doctrine
(a) Common Law
(i) The Doctrine Stated
Where harm is caused by the behaviour of an animal, whether on the property of the defendant or elsewhere, this kind of liability depends upon the type of animal concerned. The law distinguishes between the wild animals, i.e., animals ferae naturae, and tame or domestic animals, i.e., animals mansuetae naturae or domitae naturae. For damage resulting from the act of a wild animal, the defendant is strictly liable, without proof of negligence or other wrongful conduct, and without the necessity of proving that the defendant was aware of the dangerous character of the particular animal that caused the harm, or of the class of animals to which it belonged. If the animal is mansuetae naturae, that is, one which ordinarily did not cause the kind of harm that is involved, the common law requires that the particular animal concerned have the dangerous or mischievous propensity to commit the harm or damage that it inflicted, and that the defendant knew of such propensity or characteristic of the individual animal. To keep such an animal with knowledge of its potential for causing harm is not in itself negligence, or indeed wrongful in any other way (any more than to keep a wild animal is per se unlawful or negligent). Indeed, despite some judicial discussion that appears to introduce elements of negligence into liability for animals, at common law there is no need to prove negligence in the way in which the animal in question was controlled or kept in order to establish liability, as long as the requisite elements of dangerous propensity or character and knowledge are present. Nor will negligence in controlling the animal, so that it is able to escape from the property of the defendant and cause harm, entail liability under the scienter doctrine in the absence of knowledge of the dangerous propensity, or if the animal is not normally dangerous. There might be liability based on negligence if other ingredients of such liability, such as a duty of care, exist, as frequently occurs where dogs or cattle escape onto the highway, or get out of control while on the highway, with consequent damage to other road users or adjoining landowners. Such liability, if it arises, is not strict as is the situation where the scienter doctrine is applicable: it will depend upon the resolution of the issues of duty, remoteness and causation that are an integral part of the law of negligence.
The underlying rationale for the strict liability of the scienter doctrine is that anyone who maintains an animal that is known to be dangerous to humans or other animals or in any other way does so at his peril. He has created a dangerous, or potentially dangerous situation involving risk to others. In the case of the wild animals, such knowledge is irrebutably presumed by the law. Domestic animals are not normally harmful. Therefore, knowledge of the vicious nature of the particular animal must be established. In the days when pleadings in the common law courts were written in Latin, the allegation of the plaintiff was that the defendant knowingly kept (scienter retinuit) a dangerous animal which caused harm to the plaintiff. Hence arose the appellation of this kind of liability.
Sometimes it has been suggested that liability is absolute, where the animal is wild or a domestic animal known to be dangerous. This cannot be accurate, because it is clear that there are limits upon the liability of the defendant, for example, contributory negligence on the part of the plaintiff, voluntary assumption of risk or consent, the act of a stranger, or an act of God. Hence, liability although strict in the sense of without proof of negligence, is not absolute, which could mean that it would be imposed whatsoever the circumstances, as long as the animal caused the harm.
and p. 262:
The question of who is the owner or keeper, or the person whose duty it is to exercise control, is a question of fact. The real test of responsibility is not ownership. There may be many circumstances under which a person who is not the owner and indeed one who has not the actual possession of the animal may be under a duty to exercise control and will be responsible if it injures somebody.
What appears to be the crucial factor in liability is the issue of control. Hence, it has been suggested that liability is founded upon the failure of a defendant, who was under a duty to confine or control the offending animal, to maintain a sufficient degree of control to prevent the injury that occurred. Language of this nature carries overtones of negligence, i.e., the failure to exercise reasonable care. However, there is no doubt that, where the scienter doctrine applies, the duty is strict. Negligence in controlling the animal does not need to be proved. But reference to control suggests that it is escape from control that is vital to liability. Thus, if an animal is caged, chained or leashed, but nevertheless manages to inflict injury on a plaintiff, it has been held in some cases that the scienter doctrine is inapplicable, although some other form of action, such as negligence, might be invoked. In such instances, it is said that for scienter to apply, the animal must have escaped from control. In Maynes v. Galicz, the plaintiff, aged seven, put her fingers inside a wolf cage constructed of heavy duty two-inch square mesh. The cage was located at the defendant’s zoo. The wolf grabbed the child’s fingers and pulled her hand into the cage, in the course of which the hand was split. The scienter doctrine was held to be inapplicable because the wolf had not escaped from the cage (and the person in charge of the wolf had sufficiently restrained the animal so that injury would not ordinarily happen). A similar view was taken in Lewis v. Oeming. There, the tiger which caused the plaintiff’s injury was properly housed in a safe enclosure and never did escape from the custody and control of the owner. Moreover, the tiger was segregated into a part of the enclosure off from the main area where the cap, which the plaintiff sought inside the tiger’s cage, was lying. For these reasons, Miller J. held that the concept of strict liability, i.e. scienter, did not apply.
and p. 263-4:
(A) Contributory negligence If the circumstances justify such a conclusion, a court may find that the injured plaintiff has brought about his injury, in part at least, by his own neglect for his safety. Indeed, the plaintiff may be totally responsible, as in Dowler v. Bravender, where the owner of a horse which kicked the plaintiff did not discharge the onus of proving that he lacked knowledge of the horse’s dangerous propensity, yet the defendant was not liable because the plaintiff brought the injury on herself by shouting and frightening the horse. Whether a plaintiff is guilty of contributory negligence is a question of fact. Once such conduct is established, its effect in law depends upon the application of common law or statutory principles relevant to the apportionment of liability in consequence of contributory negligence.
(B) Consent Where the scienter doctrine is invoked, as in other situations, a defendant must plead that the plaintiff consented to the risk of being injured, or voluntarily assumed that risk: volenti non fit injuria. Whether a plaintiff has done so is a question of fact that depends on the circumstances. Such a plea was successful in Young v. Green, where the plaintiff, an odd-job man working with a traveling show or midway, volunteered to move a sign warning the public not to go near a lion cage. The sign was on top of the cage, from which position the plaintiff had previously retrieved it. On this occasion, while the plaintiff was trying to get hold of the sign, the lion put its paw through the bars and drew the plaintiff’s arm into the cage, causing him injury. That plaintiff was denied an action on the ground that he was volens. He had consented to run the risk involved in his actions. Similarly, in Hall v. Sorley, the plaintiff failed in her action against the defendant whose dog bit her while she was visiting the defendant’s backyard. The action founded on scienter failed because the defendant was not under an absolute liability, since the dog, a guard dog, was kept under proper restraint, and the plaintiff knew of its dangerous propensities. The action founded on negligence also failed because the defendant had taken adequate precautions and the dog had not acquired any aggressive characteristics by being tethered. Nor was the defendant’s wife negligent in advising the plaintiff that it was safe for the plaintiff to pat the dog, because the defendant’s wife honestly believed that the dog would not bite a stranger in the presence of the defendant’s wife. Moreover, the plaintiff voluntarily assumed the risk of being injured in approaching the dog with knowledge of its character.
Consent to Risk of Injuries
In the Cowles case above, where the risk of injury may be better appreciated at first glance via the knowledge that in addition to the primary defendant Balac as shown in the name of the case, African Lion Safari was also a defendant; and accordingly, the nature of the animals involved in the Cowles case were indeed wild and dangerous. As visitors to the African Lion Safari, the various plaintiffs within the Cowles case were attacked by tigers while touring the African Lion Safari park. In defence to the litigation, the African Lion Safari alleged the volenti non fit injuria defence, which is a doctrine in law known by the Latin name which, loosely, means that a person who accepts a known risk consents to the risk and is without a legal right to blame another. However, as was explained in the Cowles case, what legally constitutes as consent to risk, as essentially a waiver of liability, is much more complex than simply being aware of, and willing to enter within the presence of, dangerous animals. On this point, per Cowles, it was said:
Consent/Voluntary Assumption of Risk
 There is in my view on the factual findings made no basis for such a defence. Had the plaintiffs rolled their windows down or one of them, there might have been some basis for such a defence. On the facts as I have found them there is not.
 It is clear on the evidence that the plaintiffs were aware that tigers are dangerous animals and it would be dangerous to put one’s car window down in close proximity to a tiger. That knowledge – absent a finding that the plaintiffs put the window down – does not absolve the defendant ALS of liability. Unlike the situation in Lewis v. Oeming,  A.J. No. 734 (Q.B.) where the plaintiff did something he had no business to do – i.e. enter the tiger’s locked cage at night to retrieve his girlfriend’s ball cap – these plaintiffs I have found, did nothing they had no business doing. On the contrary, they were, as I have found, merely driving through the compound, in their own vehicle with the windows up stopping occasionally to take photos – just as the owners of ALS contemplated they should do.
 In Crocker v. Sundance the Supreme Court of Canada made it clear that the volenti defence will only apply where the plaintiff assumed both the physical risk and the legal risk of his/her activity. The court stated that this defence would rarely be applicable. The Supreme Court deals with the volenti defence at paragraphs 32 through 35 of the judgment as follows:
32. The defence of voluntary assumption of risk is based on the moral supposition that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it. As Fleming puts it in The Law of Torts, supra, at p. 264:
Obviously this defence bears much resemblance to contributory negligence. Most often, indeed, the two defences overlap: viz. whenever knowingly to assume a risk is also negligent, e.g. riding in a car with a drunk driver. But like intersecting circles, some cases support one defence without the other; thus to assume the risk may in some circumstances be perfectly reasonable or (per contra) the risk, though unreasonable, may not be fully appreciated.
As long as either defence defeated the plaintiff entirely, precise demarcation served only academic interest, but the introduction of apportionment for contributory negligence has posed a serious problem concerning the future role of voluntary assumption of risk as a complete defence. It seems rather odd that a plaintiff who is himself negligent might now fare better than one who is not, e.g. that an intoxicated passenger should stand a better chance against a drunk driver than a passenger who is sober. The judicial response to this dilemma has been to impose ever stricter requirements for the defence [page 1202) of volenti to the point where it is now but rarely successful.
Presumably the reason for not formally drawing the defence within the net of apportionment (or what would amount to the same, flatly abolishing it) is the feeling that the people should remain free to agree to waive their rights, at least under conditions of free and informed choice.
Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity (see: Car and General Insurance Corp. v. Seymour, 1956 CanLII 451 (SCC),  S.C.R. 322; Dube v. Labar, 1986 CanLII 67 (SCC),  1 S.C.R. 649).
33. In the present appeal an attempt could be made to found a volenti defence either on (a) Crocker’s voluntary participation in a sport that was obviously dangerous or (b) the fact that Crocker signed a waiver form two days before the competition. I will examine each of these bases in turn.
34. The first basis can be disposed of in short order. Crocker’s participation in the tubing competition could be viewed as an assumption of the physical risks involved. Even this, whoever, is dubious because of the fact that his mind was clouded by alcohol at the time. It is well-nigh impossible to conclude, however, that he assumed the legal risk involved. Sliding down a hill in an oversized inner tube cannot be viewed as constituting per se a waiver of Crocker’s legal rights against Sundance.
35. The argument that Crocker voluntarily assumed the legal risk of his conduct by signing a combined entry and waiver form is not particularly convincing either. The trial judge, having heard all the evidence, drew the following conclusion on the issue of the waiver at pp. 158-59:
I find that no attempt was made to draw the release provision to Mr. Crocker’s attention, that he did not read it, nor in fact, did he know of its existence. Therefore, Sundance had no reasonable grounds for believing that the release truly expressed Mr. Crocker’s intention. In fact, in so far as he was signing anything other than an application form, his signing was not his act.
Given this finding of fact, it is difficult to conclude that Crocker voluntarily absolved the resort of legal liability for negligent conduct in permitting him, while intoxicated, to participate in its tubing competition. I would conclude, therefore, that Crocker did not, either by word or conduct, voluntarily assume the legal risk involved in competing. The volenti defence is inapplicable in the present case.
 By analogy to this case there were but two signs – both just outside the main gate leading to the game reserves – one on each side of the road that are relevant to this argument. They read “All visitors enter the park at their own risk. No responsibility for damage to vehicle or person however caused is accepted”. A photograph of one of the signs is found at photo “G” of Exhibit 22. Neither Jennifer nor David recalled seeing the signs and no one from ALS drew their attention to them.
 On the brochure probably handed to them when they paid the admit fee it is stated: “All persons entering the reserves do so entirely at their own risk” and “No responsibility is accepted for damage to vehicles or trailers, their car bras, tires, lights or canvas covers, vinyl roofs or other accessories…”. Neither read the brochure and no one from ALS pointed out the stated limitation to them. Although the employees at the booth were instructed to warn patrons of the possibility of damage to their vehicle, the only evidence on this point came from Jennifer and David who said they received no such warning. ALS called no evidence to contradict them. I accept their evidence on this point and note that employees in any event were only ever instructed to warn about damage to vehicles – nothing was said in relation to any injury to person.
 There is simply no evidence – which it was the defence’s burden to call – to support the argument that either David or Jennifer assumed any legal risk of their visit into the game reserves that day.
 In my view the volenti defence is inapplicable.
Liability Statute Concerns
Additionally, concern should be had, and review conducted, of statute law such as the Occupiers' Liability Act, R.S.O. 1990, c. O.2 as well as the Dog Owners' Liability Act, R.S.O. 1990, c. D.16 which, in appropriate circumstances, will be relevant to litigation involving injury by animals.
The law where injuries are caused by an animal varies dependent upon the nature of the animal, whether domesticated or undomesticated, the manner of keeping of the animal, the conduct of the owner of the animal as to whether a warning of a known danger was provided, and the conduct of the injured person, among other concerns. If you were injured by an animal, or it is alleged that your animal caused an injury, contact a legal professional such as GPS Legal to discuss your rights.