Some summaries of interesting Canadian cases:
Stalder c. Bienvenu-Zarbatany, 2009 QCCA 1128 – Québec decision
Case highlight: Injuries can happen if you fail to keep a safe distance while walking behind a horse.
Ms. Stalder and Ms. Bienvenu were both experienced equestrians. Ms. Stalder’s horse, Wally was a quiet well-behaved 8 year old horse. Ms. Bienvenu owned a horse named Xoxo. On the day of the accident, they decided to take their respective horses for a hand walk on a country road. The stable’s groom also accompanied them and walked with Ms. Bienvenu on her left. When they were heading back to the stable, Ms. Stalder noticed Wally’s ears suddenly pointed backwards. Wally, who was in front of Ms. Bienvenu and her horse, kicked her with his hind leg, causing her injuries. She was taken, by ambulance, to the hospital where she was treated for a fractured elbow, a punctured liver and three broken ribs. She was hospitalized for 7 days and spent months in convalescence. Ms. Bienvenu acknowledged that at the time of the accident, she was behind Wally and speaking to the groom.
The Quebec Superior Court held that Ms. Stadler was responsible for the injuries that Ms. Bienvenu suffered and awarded Ms. Bienvenu $69,500 as well as $8,500 to her husband. The Quebec Court of Appeal, however, overturned the Superior Court’s decision. The Court of Appeal stated that the rules of safe equestrian practice require a person to keep a safe distance and pay attention to the horse ahead. The Court of Appeal held that it was Ms. Bienvenu’s fault in not keeping a safe distance from Wally, this fault was the cause of her injuries and exonerated Ms. Stalder.
Laws v. Wright, 2000 ABQB 49 – Alberta decision
Case highlight: Injuries can happen if you hand feed treats to a temperamental horse.
Ms. Laws fed carrots and horse treats to a horse named Salish. Salish was boarded in the stall next to Ms. Laws’ horse. Ms. Laws was told that Salish was temperamental and was specifically informed by Salish’s owner that it was not a good idea to hand feed Salish. On the day of the accident, Ms. Laws had fed Salish some horse treats when Salish lunged forward to grab a carrot that Ms. Laws held in her hand. Salish then bit Ms. Laws thumb causing her to lose its tip. Ms. Laws bought an action against Ms. Wright, the barn manager, Salish’s owner, and the stable owners.
The court concluded that Ms. Laws was a knowledgeable horseperson with years of experience in the care and handling of horses. The court found that Ms. Laws, before being bitten, knew Salish was temperamental, aggressive, territorial, unpredictable and dangerous and she further knew that feeding Salish by hand could lead to nipping or biting. Although the court found that Salish was a dangerous horse, the court held that Ms. Laws was the author of her own misfortune because she voluntarily assumed the risk of feeding a dangerous horse. The court dismissed her action.
Dowler v. Bravender, 67 D.L.R. (2d) 734 – British Columbia decision
Case highlight: Injuries can happen if you shout and frighten a horse.
Mr. and Mrs. Dowler took a friend to the barn where Mrs. Dowler stabled her horse, Babe and recently born foal, Dia. While Mr. Dowler was showing the foal to the friend, another horse named Misty owned by Mrs. Bravender walked into one of the stalls in the barn and stood there. Mrs. Dowler proceeded to a spot about 3 or 4 feet behind Misty and yelled at Misty twice to come out of the stall. Misty responded quickly by backing up because she had to back up to exit the stall. Mrs. Dowler stepped aside to allow Misty to back out when suddenly and unexpectedly Misty struck Mrs. Dowler in the mouth with her hoof. Mrs. Dowler suffered severe injuries in her mouth, including a broken jaw.
The court held that Mrs. Dowler “brought this accident upon herself” by shouting and frightening Misty. Despite this conclusion, the court considered the question of scienter, which required Mrs. Bravender to prove that she did not have any knowledge that Misty possessed any vicious or mischievous characteristics or traits. If Misty possessed a dangerous characteristic or trait, then Mrs. Bravender would have had a duty to inform Mrs. Dowler and others who came into contact with Misty. The court was satisfied that Mrs. Bravender did not have any knowledge that Misty was vicious or mischievous in the sense that she would kick out purposely at people. In fact, most of the evidence indicated that Misty was a peaceful but inquisitive horse. Although the court decided to award Mrs. Dowler damages for her injuries, the court dismissed this action.
Witts v. British Columbia (Attorney General) 138 DLR (3d) 555 – British Columbia decision
Case highlight: There is a big difference between a colt and a gelding.
Mr. Witts filed a claim for a horse named “Step Sing” in a claiming race at Exhibition Park in Vancouver. The racing program and Daily Racing Form described the horse as a colt, which appealed to Mr. Witts because he wanted to use the horse for breeding purposes. When Mr. Witts claimed Step Sing after his race, Mr. Witts learned that Step Sing was a gelding and not a colt. Although the racing program and the Daily Racing Form were erroneous, he was not aware that the entry form accurately described Step Sing as a gelding.
The Rules of Thoroughbred and Standardbred Horse Racing in BC (the “Rules”) prevent a person who would like to claim a horse from speaking to the owner and trainer of the horse before the race. The same Rules prevent a person from objecting to a claim based on the “sex” or age of the claimed horse. A person who successfully claims a horse owns that horse. (Although the rules and regulations related to horse racing have changed since this court action, the Rules described in this paragraph remain the same.)
As soon as Mr. Witts learned that Step Sing was a gelding, he immediately lodged a protest with the racing stewards, but they dismissed his protest. He then appealed the stewards’ decision to the British Columbia Racing Commission (now, the Gaming Policy and Enforcement Branch), which also dismissed his case. The Racing Commission stated that “sex”, which is not described in the Rules, had its ordinary meaning – the distinction between male and female in general. It held that Mr. Witts claimed a male horse even though Step Sing was a gelding and Mr. Witts believed him to be a colt.
Mr. Witts applied for a court order to have a ruling of the Racing Commission reversed because of an error. He asserted that the misrepresentation of colt or gelding related to the absence of reproductive organs and not to the sex of the horse. The court stated that the word “sex” could be used in two ways: one was the common meaning of a male or female horse, and the other was the meaning used by those conversant with horse-racing to designate whether the horse was a colt, gelding, stallion, ridgeling, mare or filly. The court held that the Racing Commission did not err in its decision. The court further noted that Mr. Witts was left to seek a remedy for any loss he suffered from those responsible for publishing the erroneous information in the racing program and Daily Racing Form, which he relied on before making his claim.
Acheson v. Dory, 8 Alta LR (3d) 128 – Alberta decision
Case highlight: If you are an experienced equestrian taking a novice on a trail ride, you may be negligent if the novice suffers an injury.
Mr. Dory was an experienced horseman whereas Ms. Acheson was a novice. On the day of the accident, Mr. Dory was riding a stallion nicknamed “Bear” and Ms. Acheson was riding a gelding named “Slim”. Mr. Dory owned both horses. Before their trail ride, Mr. Dory warned Ms. Acheson to keep her distance because Bear may kick, but he did not warn her that Bear might bite. Although Ms. Acheson rode Slim at a safe distance from Mr. Dory and Bear, at one point during the ride, she and Slim came close enough to Bear that Bear suddenly wheeled around, lunged toward Slim and then closed his mouth on Ms. Acheson’s right leg near her knee. She saw her leg moving back and forth before she pulled it from Bear’s mouth and saw that a piece of her flesh was gone. She dismounted and then collapsed. As a result of this injury, Ms. Acheson was hospitalized for 12 days and underwent two surgeries. Because of the considerable pain, she had to have two further surgeries. She was left with an ugly scar and a partially disabled knee.
Expert witnesses testified that stallions are aggressive and unpredictable and that their primary means of attack is to bite, but they may also kick. (Mr. Dory acknowledged at trial that Bear had previously nipped a gelding.) The experts agreed that when a stallion is kept apart from geldings, as was Bear in this case, the stallion will dislike geldings. They further agreed that a rider of a stallion should warn other riders of the risk of being bitten or kicked and to maintain a safe distance so that should a problem arise, the rider of the stallion has enough space to bring the stallion under control. The experts also advised that a stallion’s instinctive reactions will override good training.
The court considered whether Mr. Dory was negligent. In order to prove negligence, Ms. Acheson had to prove that Mr. Dory owed her a “duty of care”, that he breached the “standard of care” of a reasonable person in the same circumstances, that the result of the breach was that she suffered an injury, and that her injury was reasonably foreseeable to Mr. Dory. The court held that Mr. Dory owed a “duty of care” to Ms. Acheson because they rode together, he owned and knew both horses, he was an expert and he knew she was a novice. As for the “standard of care”, the court stated that a reasonable person in the same circumstances would have ensured that the stallion was far enough away from the gelding so that there was enough space to bring the stallion under control. In considering whether Mr. Dory breached the standard of care, the court noted that: Mr. Dory knew the importance of keeping Bear at least 20 feet away from Slim; he knew stallions were unpredictable and aggressive and that they had a propensity to bite; and he knew Bear hated geldings and had previously bitten one. The court further stated that Mr. Dory failed to warn Ms. Acheson that Bear may bite and that although he told Ms. Acheson to keep her distance, he did not give her a precise measure.
In further consideration of whether Mr. Dory was negligent, the court added that other cases involving animals required a special propensity or special circumstances to be present. In this case, the court held that a special propensity or special circumstances were present by reasoning that there was a marked difference in knowledge and ability between Mr. Dory and Ms. Acheson, and further adding that Mr. Dory was aware of the well-known propensity of stallions to bite and that Bear hated geldings. Given all of the circumstances, the court held that Mr. Dory breached the standard of care required of him. The court further held that Ms. Acheson suffered damages as a result of the horse biting her and the horse’s action was reasonably foreseeable based on the evidence.
The court then considered whether Ms. Acheson was contributorily negligent because she also had a “duty of care” to herself, which required her to meet the “standard of care” that was necessary in these circumstances. The court found that Ms. Acheson had been warned a number of times to keep her distance from Bear and that she knew the importance of this advice because during most of the ride, she maintained her distance. The court held, however, that she allowed Slim to come too close to Bear and that a reasonable person would have stopped Slim further back. As a result, the court set negligence at 66 2/3% for Mr. Dory and 33 1/3% for Ms. Acheson. After reducing her award for her portion of negligence, Ms. Acheson was awarded approximately $336,715, which included an award for general damages, past and future wage loss, and housekeeping assistance.
Northern Light Arabians v. Sapergia, 2011 SKPC 151 – Saskatchewan decision
Case highlight: If you don’t have a fence around your property, your horse may cause a “nuisance”.
The first two sentences of this judgment describe this case. The court wrote: “Good fences make good neighbours. In some cases, such as this one, the absence of a good fence makes for the opposite.”
The plaintiffs, the owners of Northern Light Arabians and the defendant, Robert Sapergia were neighbours who shared a road allowance. The plaintiffs’ land bordering the road allowance was fully enclosed by a perimeter fence, which the plaintiffs erected and maintained. Mr. Sapergia, however, did not have a fence on that portion of his land that bordered the road allowance. On occasion, Mr. Sapergia’s horses would leave his property, make their way down the road, and either entered the plaintiffs’ property or came close enough to it to cause problems for the plaintiffs and their horses or people trying to use the road. The plaintiffs attempted to convince Mr. Sapergia to erect a fence, but he refused to do so.
The plaintiffs brought this action in “nuisance” against Mr. Sapergia. Nuisance consists of a substantial and unreasonable interference with the use and enjoyment of another person’s property. In this case, the plaintiffs had to provide proof of tangible damage, or a significant degree of discomfort or inconvenience resulting from Mr. Sapergia’s failure to erect a fence. The discomfort or inconvenience cannot be trivial, but must be substantial, serious, and clearly unacceptable. Once the plaintiffs proved the existence of nuisance, Mr. Sapergia had to establish for the court that his use of the land was reasonable.
Some of the evidence that the plaintiffs advanced to prove their case in nuisance included: the plaintiffs had to take extra precautions with their riding students to guard against unexpectedly encountering one of Mr. Sapergia’s horses; Mr. Sapergia’s horses entered the plaintiffs’ yard, causing significant distress to the plaintiffs’ horses and on one occasion, their mare suffered a broken fetlock; on many occasions, Mr. Sapergia’s horses entered the plaintiffs’ property and ate at the hay stack; and the plaintiffs had to erect a gate on their premises to keep the horses out and had to restrict the freedom about the property of their assisted living residents. Although Mr. Sapergia stated that he did not allow his horses to run at large and that they were under his supervision when they grazed on the road allowance, the court was not convinced and found that Mr. Sapergia did not exercise a level of supervision and control that was sufficient to prevent them from causing problems for the plaintiffs. The court held that Mr. Sapergia’s use of his land amounted to a substantial and unreasonable interference with the plaintiffs’ use and enjoyment of their property.
The court awarded the plaintiffs damages of $2500. The plaintiffs were also seeking an injunction, which would have required Mr. Sapergia to erect a fence. The problem, however, was this action was brought in Provincial Court and this court does not have the authority to grant injunctions. The plaintiffs should have sought injunctive relief in the Court of Queen’s Bench as it is called in Saskatchewan.