Carr v. Johnston Date:, 2016 BCPC 181

Citation: Carr v. Johnston Date: 20160530 2016 BCPC 0181 File No: C76039 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: DOUGLAS J. CARR CLAIMANT AND: DEBORAH J. JOHNSTON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. Carr Counsel for the Defendant: C.P. Murphy Place of Hearing: Nanaimo , B.C.

Date of Hearing: May 19, 2016 Date of Judgment: May 30, 2016 The Claim [ 1 ] Mr. Carr is the proprietor of a business known as the Takala Trails Ranch. At the time in question, he bred and sold horses and dogs at the ranch. He has since discontinued the horse-breeding operation. He also offered vacation rentals and summer camps at which children learned to care for and ride horses. [ 2 ] In July, 2014, Ms. Johnston enrolled her 10 year-old daughter, Grace, in a summer camp at the Takala Trails Ranch. On the morning of July 23, 2014, Ms. Johnston drove Grace to the ranch.

When she stopped at the ranch gate, a dog ran out and jumped up against the driver’s side door of her car, scratching the paint. The dog ran around to the passenger side of the car and scratched the paint on the passenger side door. Ms. Johnston claims $1529.72 for the cost of repainting the doors. The claim is, in part, a subrogated claim by Ms. Johnston’s insurer, the Insurance Corporation of British Columbia (“ICBC”). The Facts [ 3 ] The contract between Ms. Johnston and Mr. Carr was partly oral and partly in writing.

The written terms of the contract were set out in a document entitled “Participant Waiver”, as follows. The underlined words are in Ms. Johnston’s handwriting. The rest of the document is a printed form. I Debbie Johnston hereby affirm that I am fully aware of the inherent dangers of horseback riding and of caring for and working around horses. I personally assume all risks of personal injury or property damage which may befall me, my family or assigns.

I further agree to indemnify and hold Takala Trails Ranch, It’s ( sic ) owners, and employees harmless from and against any and all liability for injury or property damage which may occur while on the premises, or participating in any of the offered activities. DATED 21/07/14 SIGNATURE DJ Johnston PRINT NAME DJ Johnston NAME OF CHILD Grace The arrangement was that participants, including Grace, would be dropped off at the ranch gate at 9:00 a.m. each day. Although outside the gate, the drop-off area was on Mr. Carr’s property. [ 4 ] On July 23, 2014, Ms.

Johnston and Grace, accompanied by their dog, arrived in Ms. Johnston’s vehicle at the ranch gate about 8:40 a.m. Grace had difficulty opening the gate, so Ms. Johnston got out to assist her, leaving the Johnstons’ dog in the vehicle. A dog from the ranch passed under or through the fence, ran up to their vehicle, jumped up against it and scratched the doors. Mr. Carr, who was on the scene, admits that it was one of his dogs. [ 5 ] Ms.

Johnston said that her vehicle, which was seven years old, was in generally good condition, and that it had some rock chips above the windshield, but no damage to the doors before this incident. [ 6 ] Mr. Carr said that it was his practice to put all his dogs into their kennels before 9:00 a.m. On July 23, 2014, he had kennelled all of his dogs except the one which scratched Ms. Johnston’s car, and was looking for that dog when the incident occurred. He gave two reasons for the practice. One is rider safety - interactions between dogs and horses can be dangerous, particularly for inexperienced riders.

The second is the risk of confrontations between dogs - breeding males can react badly to strange males near their females. [ 7 ] Later in the day on July 23, 2014, Ms. Johnston’s husband attended at the ranch to speak with Mr. Carr. They discussed the incident. a. Mr. Johnston said that Mr. Carr told him that his dogs had scratched his wife’s vehicle in the past and that the damage had been fully remedied by an auto detailer. Coincidentally, that vehicle was the same make and model as Ms. Johnston’s. Mr. Johnston said that Mr. Carr recommended that Mr. Johnston take Ms.

Johnston’s vehicle to the auto detailer, rather than an auto repair shop. b. Mr. Carr gave two different versions of that conversation. During his evidence in chief, he said that: i. he told Mr. Johnston that there had been some scratches on his vehicles and that an auto detailer was able to fix the problem; ii. he did not tell Mr. Johnston that they were dog scratches; iii. he does not know what caused the scratches. During his closing submissions, Mr. Carr said that the vehicle which was scratched belonged to Mr.

Carr’s wife, that it was scratched by her favourite dog, and that the dog was excited when she drove into the yard, so it jumped up on the vehicle and scratched it. He said that dog died about a year later, before the incident in issue in this case. Having regard to the two contradictory accounts of the conversation provided by Mr. Carr, I accept as accurate Mr. Johnston’s version of the conversation.

[ 8 ] The death of that dog may be of some significance. Mr. Carr said that the dog was his wife’s favourite. One day, it chased his wife’s car out through the gate onto the public highway, where it was struck and killed by another vehicle. [ 9 ] After reporting the incident to ICBC, Ms. Johnston took her car to an auto repair shop, which assessed the damage and performed repairs. No one from the auto body shop was called to give evidence. Mr. Lamb, an ICBC employee, was called to prove the estimates provided and invoice rendered by the auto repair shop.

The repairs were itemized as follows on the final invoice: Item Hours Front Bumper 0.8 Front End Panel & Lamps 0.3 Front Body & Windshield 3.7 Front Doors 2.5 Rear Doors 0.5 Quarter & Rocker Panel 0.9 Mr. Lamb agreed that it would be fair to apportion the total bill of $1529.72 among those items in proportion to the time spent on each. [ 10 ] I pointed out to Mr. Lamb that the evidence of Ms. Johnston was that the dog had jumped up on and scratched the front doors on either side of the vehicle, but that there is no evidence that the dog touched any other part of the vehicle. Mr.

Lamb said that it might have been necessary for the auto repair shop to paint other parts of the vehicle so as to match up the colour. A Procedural Anomaly [ 11 ] After the vehicle was repainted, ICBC sent Mr. Carr an invoice for $1529.71. Mr. Carr did not pay the invoice. Instead, he brought this action against Ms. Johnston to recover the amount which ICBC claimed from him. On the advice of ICBC, Ms. Johnston brought a counterclaim for the damage to her vehicle. Hence the odd situation in which the dog owner is the plaintiff.

Analysis The Legal Responsibilities of Dog Owners [ 12 ] One might think it reasonable that pet owners should simply be responsible for personal injury or property damage caused by their pets. However, the governing legal principles are not so simple. They were summarized in the following terms in McLean vs Thompson [2009] BCJ No. 2733 ; 2009 BCPC 415 at paragraphs 24 - 27 : Strict liability for damage done by dangerous animals without proof of negligence by an owner or keeper has long been part of the common law. In Janota-Bzowska v. Lewis [1997] B.C.J. No. 2053 , 96 B.C.A.C. 70 , Mr.

Justice Cumming, speaking for the British Columbia Court of Appeal said the following at paragraph 8: 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 act ferociously or viciously. Fleming in The Law of Torts , Seventh Ed., (Sydney, Australia: The Law Book Company Limited, 1987) puts it this way at p. 331: Dangerous animals are divided into two classes: (

i) animals ferae naturae , like bears and lions, which by reason of their species are normally dangerous, although individuals may be more or less tame; and (ii) animals mansuetae naturae , like cows and dogs, which, as a kind are ordinarily harmless, though individuals may harbour a vicious or dangerous disposition. 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. ...

But 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. 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.

Fleming in The Law of Torts (7th ed. p. 332) describes the doctrine of scienter as follows: 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 animals ferae naturae; 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.

Lord Justice Bowen in Filburn v. People's Palace Co., 25 Q.B.D. 258, at p. 261, 59 L.J.Q.B. 471, said: People must not be wiser than the experience of mankind. If from the experience of mankind a particular class of animals is dangerousthough individuals may be trained, a person who keeps one of the class takes the risk of any damage it may do.

If, on the other hand, theanimal kept belongs to a class which, according to the experience of mankind, is not dangerous, and not likely to do mischief, and if theclass is dealt with by mankind on that footing, a person may safely keep such an animal, unless he knows that the particular animal hekeeps is likely to do mischief. Fleming states that the test for classifying a species appears to be its special danger to mankind. Bears, zebras, tigers, elephants,chimpanzees, dingoes and coyote-dog hybrids have been branded as dangerous, camels have not.

Classification of a particular species isa question of law for the court, to be decided either on the basis of judicial notice or expert evidence: McQuaker v. Goddard [1940] 1 KB687 at pp. 700-701. I think it useful to attempt a

summary of these principles in plain words. A person who acquires and keeps an animal is legallyresponsible (without proof of negligence) for personal injury or property damage caused by the animal if the action which caused thedamage is one commonly engaged in by animals of that species. Some dogs bite, most don’t (unless provoked). Almost all tigers bite. So, a person who owns a dog is not legally responsible if the dog bites someone, unless the owner knew or ought to have known thatthat particular dog was prone to biting people.

A person who owns a tiger is legally responsible if the tiger bites someone because that’swhat tigers do. [13] As noted in McQuaker vs Goddard, the inherent propensities of a species are a question of law. The authorities make it clearthat, as a matter of law, a tendency to bite when unprovoked is not an inherent characteristic of domestic dogs. I was referred to noauthority bearing on the inherent propensity of domestic dogs to jump up on people or objects. No expert evidence was tendered on thatsubject.

For the reasons given in paragraph 14, it is unnecessary for me to decide the point. [14] In Kirk vs Trerise [1981] BCJ No. 445; (BC CA), 28 BCLR 165; 122 DLR (3d) 642 at paragraph 5, JusticeMcFarlane held that the owner of a dog who bites carries the onus of proving that there was nothing in the history of that individual dogto cause the owner to be concerned that the dog “… was or is of a vicious or mischievous nature or was or is accustomed to do actscausing injury”. In this case, there is no evidence of the history, temperament or past behaviour of the dog who jumped up on Ms.Johnston’s car.

As a result, the onus which lies upon Mr. Carr remains undischarged. The “Participant Waiver” [15] Mr. Carr asserts that Ms. Johnston’s claim is barred by the “Participant Waiver”. [16] The document is quoted in full in paragraph 3, above. It will be observed that each of its two paragraphs deals with a differentsubject. In the first paragraph, Ms. Johnston assumed certain risks of personal injury and property damage. In the second paragraph, Ms.Johnston agreed to indemnify Mr. Carr against certain kinds of legal liability. [17] Mr.

Murphy submits that the first paragraph should be construed to be a waiver only by the “participant”, and that the“participant” was Ms. Johnston’s daughter. So, he says Ms. Johnston waived none of her own rights, but only those of her daughter. Insupport of that proposition, he tendered oral evidence from Ms. Johnston, to the effect that such was her understanding. Such evidence isclearly inadmissible. The governing principle was stated in Hall vs Quicksilver Resources Canada Inc [2015] BCJ No. 445; 2015 BCCA 165; 2015 BCCA 291 , 80 BCLR (5th) 72 at paragraph 26:: Dealing first with contractual

interpretation (which is now to be treated as a matter of mixed fact and law), it is clear that the words ofwritten agreements are not to be determined according to evidence of the parties' subjective intentions, but on an objective examinationof the words used in the contract, interpreted in the "factual matrix" known to the parties at the time. A written agreement must beunderstood not in a vacuum but with a "knowledge of the genesis of the transaction, the background, the context, the market in which theparties are operating." (Quoted at para. 47 of Sattva Capital Corp. v.

Creston Moly Corp. 2014 SCC 53 from Reardon Smith Line Ltd. v.Hansen-Tangen [1976] 3 All E.R. 570 (H.L.), at 574.) British Columbia courts have long admitted evidence of the "matrix of facts" to"see what the circumstances were with reference to which the words were used, and the object appearing from those circumstanceswhich the persons using them had in view." (Prenn v. Simmonds [1971] 3 All E.R. 237 (H.L.) at 240; see also Glaswegian EnterprisesInc. v. BC Tel Mobility Cellular Inc. (1997) (BC CA), 49 B.C.L.R. (3d) 317 (C.A.); Ahluwalia v.

Richmond Cabs Ltd.(1995) (BC CA), 13 B.C.L.R. (3d) 93 (C.A.).) At the same time, the surrounding circumstances must not be permittedto overwhelm the words of a contract: see Hayes Forest Services Ltd. v. Weyerhaeuser Co. 2008 BCCA 31 and Black Swan Gold MinesLtd. v. Goldbelt Resources (1996) (BC CA), 25 B.C.L.R. (3d) 285 (C.A.) at para. 19, and Sattva at para. 57. The second sentence of the opening paragraph of the “Participant Waiver” is perfectly clear and unambiguous. The word “I”, withwhich the sentence begins, can only refer to “I, Debbie Johnston”, with which the preceding sentence begins.

By the second sentence,Debbie Johnston assumed the risk of damage to her property and that of her family members, of whom Grace was one. The words of thedocument are simply incapable of supporting the construction advanced by Mr. Murphy. [18] However, the first paragraph of the document is equally incapable of supporting the construction advanced by Mr. Carr. Therisks assumed by Ms. Johnston are clearly defined in the opening sentence of that paragraph. They are “… the inherent dangers ofhorseback riding and of caring for and working around horses …”.

The risk which materialized in this case had nothing to do withhorses. Ms. Johnston did not agree to assume risks of personal injury or property damage caused by dogs. Because the plain words ofthe document do not comprise the risk which materialized, there is no need to construe the document contra proferentem: see Tercon Contractors Ltd vs British Columbia 2006 BCSC 499 , [2006] BCJ No. 657; 2006 BCSC 499; 53 BCLR (4th) 138 at paragraph

147; affirmed at 2010 SCC 4 , [2010] 1 SCR 69 at paragraph 61. [19] The second paragraph of the “Participant Waiver” is, by its terms, equally inapplicable to Ms. Johnston’s claim. The secondparagraph is an indemnity. It could apply only if a claim were made against Mr. Carr by someone other than Ms. Johnston. In theabsence of such a third-party claim, there is nothing against which Ms. Johnston could be called upon to indemnify Mr. Carr. It is truethat part of Ms. Johnston’s claim is a subrogated claim, brought by Ms. Johnston for the benefit of ICBC.

However, that does not renderit a third party claim which could be the subject of the indemnity provided by the second paragraph of the “Participant Waiver”. Aninsurer does not have an independent right of action against a person who causes damage to the insured.

The insurer has only a right toenforce the rights of the insured against that person, by bringing an action in the name of the insured: Brown: Insurance Law in Canada(loose-leaf ed.) at paragraphs 13.1 - 13.2. [20] In light of the conclusions expressed in paragraphs 18 - 19, it is unnecessary for me to decide an alternate point raised by Mr.Murphy in his submissions.

He said that the “Participant Waiver” could not be effective to bar ICBC’s subrogated claim because section84(6) of the Insurance (Motor Vehicle) Act RSBC 1996, c 231 provides: A settlement or release does not restrict the rights of the insured or the insurer under this

section unless the insured or the insurer, as thecase may be, concurred in it. I will not address the issue in detail, because it is unnecessary for me to do so. However, I doubt that section 84(6) could apply in thiscase because: a. The “Participant Waiver” is not, in my view, a “settlement or release”. A settlement is a compromise of a disputed claim. Therewas no claim when Ms. Johnston signed the “Participant Waiver”. A release, in this context, is a document by which a claimantdischarges from further liability the person against whom a claim is made. When Ms.

Johnston signed the “Participant Waiver”, therewas no existing liability from which Mr. Carr could be discharged. b. If section 84(6) has the effect for which Mr. Murphy contends, it is not possible, as a matter of law, for a person insured by ICBCto voluntarily assume a risk in such a way as to bar a subrogated claim by ICBC. It seems to me improbable that the Legislature intendedsuch a consequence. For those reasons, it does not seem to me that section 84(6) could apply to a document executed before the casualty in issue. Contributory Negligence [21] Mr. Carr alleges that Ms.

Johnston was contributorily negligent in two ways: (

i) by arriving 20 minutes early; and (ii) byarriving with her dog in her vehicle. An allegation of contributory negligence is an allegation that the claimant failed to take reasonablecare for her own safety, or the safety of her property. I do not think that Ms. Johnston’s conduct on the day in question wasunreasonable, nor that she failed to take reasonable steps to safeguard her property. Participants often arrive 20 minutes early foractivities of the kind in question, and those who organize and supervise such activities should anticipate that they will. Many peoplecarry their dogs in their vehicles.

Neither of those actions represents a departure from normative standards of self-care. As aconsequence, contributory negligence is not established. The sole cause of damage in this case was Mr. Carr’s failure to kennel up oneof his dogs, as he had the others, before Ms. Johnston’s arrival. Quantum [22] The cost of painting the vehicle doors is recoverable. The remainder of the damages claimed are not proven. There is noevidence to support an inference that the dog caused damage to other parts of the vehicle. Mr.

Lamb’s suggestion that it may have beennecessary to paint other parts of the vehicle to match the colour is speculation. Of the total of 8.7 hours claimed, 3 hours were devoted topainting the doors. It follows that 34.5% of the total cost is recoverable. Disposition [23] Ms. Johnston is entitled to judgment for $527.75, plus court order interest at the Registrar’s rate from July 23, 2014 to today’sdate and filing and service fees as claimed. May 30, 2016 __________________________ T. Gouge, PCJ