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Owner liable for attack: Wolf-dog hybrid a wild animal

Hauer & Co. > Uncategorized  > Owner liable for attack: Wolf-dog hybrid a wild animal

Owner liable for attack: Wolf-dog hybrid a wild animal

In McLean v. Thompson, 2009 BCPC 415, the Claimant Marjorie McLean brought an action against the Defendants. She was bitten twice by a wolf-dog hybrid (“wolf hybrid”) named Harley.  Harley was owned and kept as a pet by Tanya Thompson and Ryan Thompson (“the Thompsons”). The bites occurred on August 27, 2006, at the home of Raymond and Sharon Thompson (“the Thompsons Sr.”) in Ashcroft, British Columbia. Raymond and Sharon Thompson are the parents of Ryan Thompson. The claim was brought on three grounds: that the Defendants are strictly liable in scienter for the injuries caused to the Claimant without proof of negligence as Harley is a member of an inherently dangerous class of animals; that the Defendants are liable alternatively in negligence; and that the Defendants Raymond and Sharon Thompson are also liable under the provisions of the Occupiers Liability Act, [R.S.B.C. 1996] ch. 337.

On August 27, 2006, as the property owner Mr. Thompson opened the gate, the wolf-dog Harley lunged and bit Ms. McLean on the right leg. Mr. Thompson tried to get Harley under control but could not. The wolf-dog again attacked Ms. McLean, biting her a second time on the left thigh. Harley was a cross between a Malamute and an Arctic wolf. The Thompsons both gave evidence that in the seven years they had owned Harley before he bit Ms. McLean, he had not been aggressive. Harley had never been a problem when people came onto their property. They had never received any complaints about Harley acting in an aggressive manner. The Thompsons said that they treated Harley as they would have treated any large dog.

The Claimant, Ms. McLean, and Defendants Ray and Sharon Thompson adduced expert evidence regarding wolf-dog hybrids. The Claimant called Richard Polsky, Ph.D. In Dr. Polsky’s opinion, wolf-dog hybrids inherit sufficiently strong natural characteristics from their wolf antecedents to make them unpredictable, and therein lies the danger. This unpredictability persists even where an individual wolf hybrid presents with a favourable history with humans. Dr. Polsky was clear in expressing his view that the idiopathic (without known cause) aggression of wolf hybrids makes these wolf-dog animals potentially dangerous to keep as pets in an urban environment. Dr. Polsky said that this view is widely accepted in the scientific and humane communities in Canada and the United States.

The Thompsons adduced evidence from Mr. Walkley, a member of the Ktunaxa first nation and someone who has extensive traditional knowledge of wolves in the wild. His evidence was that nature did not fashion the wolf-dog, man did. They have just enough dog in them to lack the good sense to be afraid of humans, and just enough wolf to be “undomesticatable”. Mr. Walkley went on to opine that Harley, an animal he had never seen, had been tired from the travel, was uncomfortable in his new surroundings, and was startled by the combination of the sound of the gate latch and the collar-grab by Raymond Thompson. In these particular circumstances, Mr. Walkley said, Harley instinctively felt he was being backed into a corner. The result was that Harley “simply bit (Ms. McLean) out of fear”. This opinion as to the cause of the bites was found by the court to be speculative, and it did not assist in determining whether wolf hybrids as a class of animals are normally dangerous or ordinarily harmless among humans.

The Court applied the law that held that generally, dangerous animals can be classified in two categories: there are those which are inherently dangerous and those that are normally tame but where individual members of the group may act ferociously or viciously.  At common law the defendant owner or keeper of an ordinarily harmless animal, such as a dog, would not be held to strict liability unless he or she was aware of the dangerous disposition of the particular animal. This awareness, or scienter, is a matter to be proved in such cases by the claimant.  When an animal of the harmless species [animals mansuetae naturae] betrays its own kind by perpetrating damage, its keeper will not be held to strict liability unless actually aware of its dangerous disposition. This proof is known technically as “the scienter” which derives from the old style declaration, charging the defendant with knowingly keeping a dangerous animal. The requisite knowledge must relate to the particular propensity that caused the damage. However, proof of knowledge of a vicious propensity does not apply to wild animals, called animals ferae naturae. These are animals which are by reason of their species normally dangerous. Animals of this class are never regarded as safe and liability attaches for the harm they may do without proof that the particular animal is savage.

The court accepted the evidence of both Dr. Polsky and Mr. Walkley that wolf-dogs are unpredictable and that this is where the danger lies and that wolf-dog hybrids as a group are in the class of animals ferae naturae and are not as a class harmless by nature holding that an animal which is the result of a cross between a dog and a wolf cannot be treated as a dog. The court held that the animal which attacked the plaintiff, a wolf-dog, must be considered as essentially a wild animal.

The court was not satisfied that it has been shown that Raymond and Sharon Thompson were keepers of Harley on the occasion that Ms. McLean was bitten. They certainly provided a place for Harley and his owners to stay during the home visit, but Harley was never away from the control and responsibility of Tanya or Ryan Thompson.

The court denied the claim in negligence on the part of the owner in the absence of a known propensity on the part of the animal to behave in a manner requiring appropriate precautions. No such propensity on the part of this animal was established. To attribute to the animal propensities on account of its breed alone would require a more compelling evidentiary base than was present here.

The court accepted the Thompsons’ evidence that they did not have information of this sort from their breeder, their veterinarian or from their trainer. The court did not consider that Harley’s wolf antecedents ought have weighed sufficiently into the equation to overwhelm the Thompsons’ seven years of experience with the animal and so have obliged them to take greater precautions than they took.

The court found no evidence to support a finding of negligence against Raymond or Sharon Thompson under the provisions of the Occupier’s Liability Act [R.S.B.C. 1996], ch. 337, s.3. They were under an obligation to take reasonable care to ensure that Ms. McLean, their guest would be reasonably safe on their property. The court found it was not reasonably foreseeable in these circumstances that Harley would suddenly bite Ms. McLean. Based on the knowledge of Harley which they reasonably had, there was no reason to believe that Ms. McLean would be at risk on their property from the actions of Harley.

Accordingly, the Claimant succeeded in establishing the claim in scienter against Tanya and Ryan Thompson, but had not established a claim against them in negligence. The claim against Raymond and Sharon Thompson has not been established in scienter, negligence or under the provisions of the Occupiers Liability Act and was accordingly dismissed. As the claim in scienter succeeded, the trial would proceed on the issue of damages as against Tanya and Ryan Thompson.

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