Dear Mrs Macaulay,
I bought a house in a gated community three years ago. I have three children and a dog. I put up fencing as soon as we moved in, so my dog could have free access to the yard, and wouldn't be a nuisance to the neighbours. When I moved in my neighbour informed me that stray dogs were a nuisance in the area, and he had poisoned several of them. He warned me to keep my dog on my property at all times as he didn't like dogs or cats. The dog is well trained, house-bound for the most part, and only goes outside to play. A week or so ago my dog and my five and two year olds were outside playing. My older child later reported that the neighbour threw some 'cookies' over the fence, and the dog immediately gobbled it up. My two year old also ate some. That evening both my dog and child got sick with vomiting and diarrhoea. At this time my older child hadn't yet shared what happened, and so I treated both of them at home. While my baby was OK after a few hours, my dog got so ill that I took her to the vet, and she was treated. This cost me over $20,000. It was afterwards that my older child told me the story. I confronted my neighbour, but he said my child was lying. Can I sue?
I have noted the contents of your letter and I will try to assist you to decide your way forward as best as I can.
The short answer to your question of “can I sue”?, is that yes, of course you can. Any adult can sue (without me going into the circumstances of when a child can sue) as long as what is the subject of the claim is not immoral or illegal or for such purposes. However, the better question is, if you sue, what are your chances of success? This latter question's answer would depend on the weight of the evidence which is adduced in proof of your claim.
This is what I consider relevant when dealing with the question of whether you ought to file suit or not against your neighbour.
You should first retain the services of a very good lawyer, experienced in cases for the award of damages. He/she must consider and weigh the weight and value of yours and your witness's evidence as against the civil standard of proof. The lawyer must consider and answer the question not only of should your five-year-old give evidence, but before that, the question, 'can the child give evidence?' must be answered first before the question of “should he/she?”. So your attorney must test your child to evaluate the answers to questions which must be put to a child witness. If the answers are correct, then it is time to consider the question, should the child give evidence? This latter question is important because you do not wish to traumatise your child during or after the trial; nor do you wish the child to bear the burden of the success or failure of the case. But now when trials are and can be done virtually, that would be more comfortable for your child, I should think.
I would then ask, and so would your lawyer, did your child hear what your neighbour had said to you when you moved in. But that was three years ago, when your five-year-old child would only have been two. So what would he/she have understood then and would the child have been able to retain a clear memory of it after three years and relate it to cookies thrown into your yard?
I would conclude that the child, especially bearing in mind when the report of the cookies was made to you, was merely relating the fact of the cookies having been thrown over the fence. Maybe you were commenting on what your two-year-old and your dog could both have eaten which disagreed with them, and your five-year-old remembered, and you then related it to the poison talk of your neighbour three years before. All in all, in my view it can clearly be proved that your child truly related the fact of the cookies being thrown over the fence by your neighbour.
The failure to provide specimens from the illnesses which could have been tested and the contaminant found is a pity, because this would have made your case easier if you sue. But this does not necessarily mean your claim would be defeated. The neighbour's response to your confrontation could be used to demonstrate that firstly, your child did not lie, and to pursue why his answer was that your child was lying. If he had not done the deed, all he needed to have said was that he did not or have never thrown any cookies into your yard. He did not need to denigrate your child's veracity and character. His answer to me was too excessive and therefore brings into play his own veracity. In this case, counsel can cross examine him on his conversation with you after you moved in three years before, his disliking of dogs and cats, his poisoning of stray dogs in the neighbourhood, and then proceed to questions about his attitude to little children. A question which stands very loud and clear is, why would the five-year-old child make up such a story to tell about him?
I say get yourself a good, ethical and experienced attorney-at-law and after you provide a more detailed account to them, you will receive advice about whether you should proceed or not with filing a claim for damages of the various torts committed by your neighbour and what the likely conclusion would be. You must ask all such questions as the answers would help you decide whether suing would be worth the effort, or that you'd file your claim for the principle of the action to put you neighbour through the ordeal of such a trial. Please at least consult a lawyer for professional advice before you retain him/her to file a claim for you, because you do not want to have to pay such an obnoxious person costs, but rather teach him a stern and costly lesson.
I hope I have assisted you to have a clearer picture, and I wish you all the very best.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.