In flies, psychological injury and remoteness of damages: how Mustapha v. Culligan settles the score.
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”. 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,  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.
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