International Law

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

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? [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 was not being appealed to the Supreme Court. The later agreed anyway and found it an unsurprising finding because Culligan did not take reasonable care to provide water that is not contaminated. Third is to prove that the Plaintiff sustained damages. In here the Supreme Court accepts the findings of the trial judge that with the support of medical evidence, Mr. Mustapha did develop an injury that was ?debilitating and had a significant impact on his life? [9]. It is note worthy to mark the Supreme Court?s effort in legitimizing psychological pains as physical ones and by that are compensable. The Supreme 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 see 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 test to which Mr. Mustapha?s argument failed is establishing 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 at this point, the Supreme Court considered that it is a corporation -and not a man- with a nation-wide distribution network that is under investigation is not evident. Instead, the Supreme Court?s analysis went on to explain the concept of ?reasonable foreseeablity?, without paying heed to the issue of whose foreseeability. 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 imagined in your head).

Adding to this complexity (or maneuvering depending on your perspective), the remoteness analysis extended to engage whether the plaintiff is to be considered objectively or subjectively. Within the duty of care analysis, that is the first step in establishing a negligence claim, the consideration of the Plaintiff is objective, that is, someone of ?ordinary fortitude? [14]. The Supreme Court extended this standard to the concept of foreseeability. The plaintiff shall be considered objectively to see whether the injury was probable and reasonably foreseeable. How this applies to psychological reactions to an 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 of those trials, his medical expenses and for his loss of 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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Full post as published by The Court on June 02, 2008 (boomark / email).