Has Your Pet Been Injured or Killed?: Compensation for Emotional Distress on the Rise

 

Traditionally, pets have been treated as property under the eyes of the law. That being the case, a pet owner attempting to obtain compensation for the death or injury of his/her pet was limited to the fair market value of the pet at the time of loss, plus any related costs incurred (such as veterinarian bills etc.). Thoughts of even awarding a pet owner general damages for “pain and suffering”, “mental and emotional anguish”, or “loss of companionship” for their pet’s loss, death or injury was unheard of in Canada. A pet’s loss was seen as no different  than losing a  Laptop computer or other prized personal property.

However, the case of Ferguson v. Birchmount Boarding Kennels Ltd (upheld on appeal) was the first Canadian case to allow damages for pain and suffering associated with the loss of a pet and to really move pets into a category beyond mere “chattels”.

In Ferguson, the plaintiffs boarded their dog at a kennel before going on vacation to Hawaii. While on vacation, their dog managed to escape from the kennel by squeezing through pieces of the enclosure. The dog disappeared and was never seen again. At trial, the court took into account the owners’ emotionally distraught and hysterical state; the search efforts to locate the dog; the relationship with the dog for 7½ years; the owner’s inability to work; and the insomnia and nightmares experienced due to the loss. These factors persuaded the court to award the dog owners damages for pain and suffering. On appeal, the appellate court upheld the trial decision and made clear that matters involving pets can warrant general damages for mental distress/pain and suffering:

“Mental distress is a proper head of damages when the appropriate underlying circumstances                  are proven to exist. The court made no palpable or overriding error in that regard; that is, the                  findings of the trial judge were well supported by the evidence.”

In the case of Brown v. Edwards, the court dealt with a situation where the plaintiff left their dog in the care of a veterinary clinic. When the veterinarian walked the plaintiff’s dog, it slipped out of its leash before running into traffic where the dog was killed. The plaintiff was awarded $3500 for general damages for loss of companionship. However, the decision was reversed on appeal when it was determined the veterinarian was not negligent. As such, nothing was awarded to the plaintiff. The important point is that the appellate court had no objection to the awarding of general damages at trial in the first place, and had not suggested that it was inappropriate at the time leaving the door open for more of these awards going forward.

In the 2006 case of Nevelson v. Murgaski, the plaintiff, an elderly woman was walking her dog when the defendant’s dog approached and attacked both the plaintiff and her dog. The plaintiff suffered a hand abrasion and developed anxiety and her dog suffered a puncture wound. Relying on Ferguson, and given the significant disruption to the life of the plaintiff, she was awarded $1750 for pain and suffering and inconvenience along with the other damages awarded for veterinary bills and parking expenses.

The outcomes of these cases likely means more damage awards in future situations where pets are injured, lost, or killed at the hands of another party. In Canada, the pendulum is swinging in favour of treating animals not as items of personally property, but recognizing the emotional impact and sense of companionship pets have with their owners so as to warrant compensation for the loss of these benefits. It may only be a matter of time before these damage awards grow in size.

  • Mike Balson

    This is well-written and also a very intriguing subject. One of those so-called “gray areas” (excuse my American spelling of gray) that challenges the court system on an emotional level. I wonder if dogs would be the only pets that this would apply for or if petowners could make the same claims if they were to suffer emotional distress over the loss of, say, a cat or even a bird.

  • Lawson Hennick

    That’s a good question. I guess time will tell. My understanding is that in the U.S. the law is much more rigid on this and pet owners don’t usually have this recourse. So, if you’re look for justice for your pet bird in America, best of luck. 

 
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