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This post was originally published on the blog maintained by the Faculty of Law at the University of Alberta, which can be found here. It is reproduced at TheCourt.ca with permission.
A little over a week ago, the Supreme Court of Canada pronounced in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
The facts of the case are notorious. Waddah Mustapha saw a dead fly in an unopened bottle of water supplied by the defendant, Culligan. Neither he nor anyone else consumed any of that water, although all members of his family had consumed the defenadnt's water for the previous 15 years. Mr. Mustapha became obsessed about what he had seen and about the potential implications for his family's health from having possibly consumed impure water in the past. He was diagnosed as suffering from a major depressive disorder, with associated phobia and anxiety, all triggered by seeing the dead fly.
Specifically, the trial judge summarized the effects on the plaintiff in these terms:
He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water. The worst thought was that his wife would carefully sterilize a bottle for the health and safety of his baby daughter but then would put into that bottle formula made from Culligan water. ...
He could not get the fly in the bottle out of his mind, he had nightmares, he was only sleeping four hours or so a night, he has been unable to drink water since the incident, he has lost his sense of humour and instead became argumentative and edgy, he has been constipated, his bothered by revolting mental images of flies on feces ....
He can't get up and get off to work in the mornings as he always used to. He has lost clients because of the changes in his personality and modd and also because of the reduction in his previous skills as a hairstylist. He has lost interest in, and ability to perform sexually. He had initial complaints of nausea and present complaints of constant, unexplained abdominal pain or discomfort.
In 2005, Brockenshire J., while finding Mr. Mustapha's claim to be "objectively bizarre", awarded him $80,000 in general damages, approximately $25,000 in special damages and $237,600 for past and future economic loss. It was, he held, "clearly foreseeable" that the supply of water with dead flies would cause him and others like him to suffer some degree of nervous shock.
Culligan appealed, successfully, to the Court of Appeal, which defined the issue as "whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident - the sight of a dead fly in a bottle of consumer water." The Court of Appeal answered this question in the negative. Mr. Mustapha sought and obtained leave to appeal to the Supreme Court.
It was to general surprise that the Supreme Court granted leave. There were, however, two possible reasons: (1) to take the opportunity to set out - for the first time at the SCC - the proper approach to be taken to claims arising from nervous shock; and (2) to address a practical, doctrinal problem which arose from the Court of Appeal's treatment of reasonable foreseeability - and specifically, of its requirement that foreseeability's threshold be one of probability as opposed to possibility. (I canvass the problems with that on my contribution to the Alberta Law Review's Online Symposium regarding Mustapha).
The Supreme Court's reasons are, surprisingly, pithy. This is usually a good thing to see from a court which has made a hash of things (oops, better watch out - Marnie Tunay may not like my using the term "hash") in other areas of law by careless obiter (for example, in the law of cause-in-fact and in the law of constructive or regulatory takings). And the Court's reasoning, standing on its own, suits a pithy judgment. Mr. Mustapha's injury was not reasonably foreseeable. It fails on the question of remoteness.
That makes sense, but it leaves one to wonder why the Court granted leave. There is no comprehensive statement of the law of nervous shock (other than to note that the distinction between physical and mental injury is "elusive and arguably artificial in the context of tort" - the Australian case of Page v. Smith was leaned on heavily here). The Court managed to finesse the question of the applicability of English law which divides "primary victims" from "secondary victims" (the duty of care not being an issue here, since it was a products liability case a-la Donoghue v. Stevenson). And the Court expressly avoided dealing with the probable v. possible issue that arose at the Court of Appeal.
Moreover, the decision itself raises a couple of new questions. How are we to determine between unrecoverable "psychological upset" from recoverable (absent remoteness) "psychological disturbance that rises to the level of personal injury"? The only guidance the court gave was that "[compensable injury] must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if reluctantly, accept." Between a "serious and prolonged" injury and an "ordinary annoyance" is a large gulf. An extra sentence or two might have helped. Secondly, the court noted, but really didn't address, the confusion between remoteness considerations and thin skull ("eggshell skull") considerations. "Eggshell skull" cases, said the court, arises "where [the] result of a breach of duty [is] more serious than expected", whereas remoteness is "a threshold test for establishing compensability of damages at law." I don't see this as being a particularly helpful way of distinguishing between the two. Given how the thin skull rule is applied in cases of physical injury, trial judges are going to enjoy trying to reconcile the statement (cited earlier) about tort law treating mental and physical injuries in the same way with the statement that the plaintiff must show that his or her mental injury would have occurred in a person of ordinary fortitude.
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this is what diana has to say, well done, congratulation diana from waddah mustapha
June 2nd, 2008
By Diana Younes
If there was any opportunity for the Supreme Court to revise some of the basic tort rules, it was remised in Mustapha v. Culligan of Canada Ltd, 2008 SCC 27. Perhaps the case turned out as it did because psychological harm is not truly synonymous with physical harm despite the judges’ proclamations (in para 8). Regardless, the Supreme Court took this opportunity to advise the courts that the test for ‘remoteness in damages’ remains governed by the ‘foresight of the reasonable man’ and all the convoluted analysis that this begets in negligence claims. This complicated imaginary standard was the divisive issue that cost Mr. Mustapha 341,774.58 in theoretical dollars.
Mr. Mustapha developed serious psychological harm as a result of seeing dead flies in a water bottle supplied by Culligan; the defendant. Having had consumed water by Culligan for the past 15 years, he developed a major depressive disorder as he feared for himself and his family’S health. Mr. Mustapha sued Culligan, was successful at trial and was awarded damages. On appeal though, the decision was overturned. The Ontario Court of Appeal found the injury not reasonably foreseeable and thus did not give rise to a cause of action. The Supreme Court agreed with the result but for “different reasons” [para 2].
The Supreme Court found that the Plaintiff established three requirements for a successful negligence claim but failed at the fourth. The first step is finding a duty of care between the parties. Since it is established already that manufacturers of consumer goods owe a duty of care to consumers, Culligan indeed was found to owe Mr. Mustapha such a duty. The second step is to find the Defendant’S behavior in breach of a standard of care. The trial court found such a breach and that element was not appealed to the Supreme Court. The latter agreed, in any event, and characterized it as an unsurprising finding because Culligan did not take reasonable care to provide water that was not contaminated. The third element requires establishing that the Plaintiff sustained damages. Here, the Supreme Court accepts the trial judge’s finding, supported by expert evidence, that Mr. Mustapha did develop an injury that was “debilitating and had a significant impact on his life”[9]. It is noteworthy that the Supreme Court made an effort to draw no distinction between psychological and physical injuries, both are equally compensable. The Court quoted Lord Lloyd in Page v. Smith, [1996] 1 A.C. 155 (H.L.), at p. 188:
In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law. [Emphasis by the Supreme Court].
The fourth requirement that Mr. Mustapha’S claim failed to establish was that in law the damages were caused by the Defendant’S breach. It was not disputed that Mr. Mustapha’S injuries were in fact the result of the breach. However, and as shall be discussed herein, the damages were found too remote to warrant recovery, in law. The test for remoteness has been since The Wagon Mound (No.1) to be “the foresight of a reasonable man”. Whether the Supreme Court considered that this defendant is a large corporation - and not a man- with a nation-wide distribution network, is not evident. Rather, the Supreme Court’S analysis went on to explain the concept of “reasonable foreseeablity”, without teasing out any distinction between the reasonable person and the reasonable corporation. The Supreme Court stated that the level of occurrence for a reasonably foreseeable event was if it is probable and that means having a “real risk” (as opposed to an imagined risk).
Adding to this complexity (or maneuvering depending on your perspective), of the remoteness analysis the Court further considered the constitution of the “reasonable person”. Within the duty of care analysis, that is the first step in establishing a negligence claim, the “reasonable person” is assumed to be of “ordinary fortitude” [para 14]. The Supreme Court extended this standard to the concept of foreseeability. The injury for which compensation is sought must have been objectively foreseeable in the circumstances. How this might apply to psychological reactions to a tortious event is not discussed. The idea, however, is that “there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm’ [quoted from Tame v. New South Wales (2002), 211 C.L.R. 317.
So if Mr. Mustapha proved that an ordinary person could have developed the same injury as a result of this incident, then this could have met the “reasonably foreseeable’” standard and by that a finding that the injury, in law, was a result of the breach of the duty of care. For Mr. Mustapha who has the burden of paying the costs at trial, covering his medical expenses and losing his business, this analysis led to an unfair result. The corporation who has breached a duty of care and in fact caused those injuries is relieved from any responsibility. The question of what did this complex legal analysis provide to mediate this conflict, leads to some troubling nightmares. Unfortunately, even if I had the medical proof of psychological harm, insomnia and fears for my security, I cannot establish, in law, that the Supreme Court has been negligent in breaching its duty to establish a just result.
it is not ,that i didn't have the ability to perform sexually, you all miss quoting and not grting the facts right.
the sexuallity issue was the side effects of the medication. go it ,thank you and correct yourself please.
from waddah mustapha
I don't really want to get into an exchange with Mr. Mustapha about the details of the medical conditions canvassed in his trial judgment, but since he has accused me of misquoting, I'll simply point out that the only reference to diminished sexual performance in my post was contained in an excerpt from the trial judgment. While this particular ailment may well have been an indirect effect (prompted by medication necessitated by seeing the fly in the bottle) as opposed to a direct effect (of seeing the fly in the bottle) - the trial judge did, in this regard, include a reference, among the litany of ailments, to Mr. Mustapha having to take "a variety of medications which he says leave him feeling that he is not in full control and draggy" - I don't think that from a legal standpoint that would affect the trial judge's characterization as I replicated it in the post. (It might, however, make that aspect of the claim less specifically foreseeable (more "remote") and therefore less likely to be recoverable.)
I'm currently doing a first year law summative on this case and am wondering what any of your opinions are on the ratio of the case and the main legal concepts within it.