THE DOG’S FIRST BITE

Evening Star, Issue 19891, 13 June 1928, Page 9

THE DOG’S FIRST BITE

A TIME-HONOURED EDICT IGNORED BY CANADIAN JURY. The time-honoured edict of British jurisEru donee —that every do; is entitled to one itc—has been challenged by a Canadian jury, which bravely awarded a plaintiff £llO damages. But, simultaneously, another caso which came before a magistrate, to whom law is law, was adjudicated cemtrawise. An animated controversy, with implications, extended far beyond dogs has resulted. Legal lights point out that the privilege of a dog to one bite is baaed on the “ law of scienter,” not a statutory measure, but a principle of law established by custom and precedent. “Scienter” moans “wittingly,” and precedent has established that the owner of a dog must be “witting” or " aware ” of the animal’s tendency to bite before he can be mulcted for damages. And it takes one bite to prove such tendency. One legal authority writes: “The application of the ‘ scienter ’ principle to dogs bears all the earmarks of a precedent created for the protection of Britain’s oldtime dog-owning squirearchy from the damage claims of impudent dog-bitten cottagers. It obviously has no place in twentieth century Canadian jurisprudence.” This incident furnishes one of the first signs that the legal profession of Canada is capable of challenging a British precedent or of contemplating the possibility that the last word in justice os applied to this new country may not be contained in the judgments of the Imperial Privy Council. Another straw blowing in the same direction was recently observed in tbo proceedings of the board which administers the Workmen’s Compensation Acts of Ontario. A stable man, having been sent by his employer to get a horse collar, slipped on the pavement and broke his arm. When his application came, before the board the members felt that it ought to bo allowed. But they were confronted with a lino of decisions by the Court of Appeal in England against the allowance of street accidents under such circumstances. The English argument was that, as a man on the street, oven though lie may be on a message for his'employer, is not exposed to any greater hazard than any other member of the public on the street, therefore such an accident should not be considered as arising out of an employment which is not ordinarily related tc street hazard. The board felt that this argument was unreasonable and unsound, nevertheless, it felt bound to follow British precedent. The claimant applied for reconsideration, and on the rehearing the Workmen’s Compensation Board took its courage in both hands. It decided that, as the board was breaking new ground, so to speak, and was not a court in the ordinary sense of the word it had the right to decide the cases which came before it as it thought proper,. rcgardles of legal decisions elsewhere. After full consideration, therefore, iho claim was allowed.

There was an interesting sequel. The. following year an identical type of ease reached the House of Lords in England, with the result that the English law on this point was given “ right-about-face,” and at once the ruling of the Ontario board, as established in this horse collar case, became also by this decision of the House of Lords the law of England, in respect to street accidents under the English ‘Workmen’s Compensation Act.