In a unanimous ruling the Supreme Court of Canada has refused to restore a large trial award made to a bottled water customer who suffered severe depression and phobia after observing a dead fly in water purchased from the defendant. The Court ruled that it was not foreseeable that a person of "ordinary fortitude" would suffer psychiatric injury from such an event, and found that the trial judge erred in applying a subjective standard of vulnerability when considering whether the plaintiff's injuries were compensable.
In its decision in Mustapha v. Culligan of Canada Ltd.,1 the Supreme Court of Canada has made a major ruling on the law of negligence in Canada. The Court has ruled that an objective, rather than a subjective, standard of vulnerability is to be applied when determining whether the risk of injury was reasonably foreseeable to the party whose negligence caused the plaintiff harm.
Waddah Mustapha was a long-time customer of Culligan of Canada Ltd., a supplier of bottled drinking water. While replacing an empty bottle with a full one, Mr. Mustapha observed a dead fly and part of another dead fly in the unopened bottle. He became progressively obsessed with the event and the potential health implications for his family, suffering what was diagnosed as a major depressive disorder with associated phobia and anxiety. He sued Culligan for damages.
At trial, Mr. Mustapha was awarded a total of $340,000 in damages. The award was set aside by the Ontario Court of Appeal, on the basis that the injury was not reasonably foreseeable. Leave was then obtained by Mr. Mustapha to appeal to the Supreme Court of Canada.
The Supreme Court of Canada found that three of four of the elements needed to prove recoverable negligence had been established by Mr. Mustapha. Those elements were: (i) the existence of a duty of care owed to him by the defendant; (ii) a breach of that duty in the circumstances of the case; and (iii) injury or damages suffered by the plaintiff. However, while accepting that Mr. Mustapha had indeed suffered the psychiatric disorders diagnosed by his physicians following the incident, the Court was not satisfied that "causation" of the injuries by Culligan's breach had been established in the legal sense. That enquiry turns on an analysis of whether an injury was reasonably foreseeable to a party in the position of the defendant.
The key aspect of the foreseeability issue addressed in the Mustapha case concerned whether the determination to be made should be based on the plaintiff's particular vulnerability to injury, or whether a more objective standard should be applied. The trial judge had used the former test in making his award. However, the Supreme Court disagreed with the use of that approach, and cited a judgment of the English House of Lords which held that "[t]he law expects reasonable fortitude and robustness on the part of its citizens and will not impose liability for the exceptional frailty of certain individuals."2 Chief Justice Beverly McLachlin, who wrote the Mustapha judgment, ruled that this approach also represents the law in Canada:
The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for the purpose of damages.3
The Supreme Court was alternatively asked by Mr. Mustapha to allow him recovery on the basis of breach of contract. However, the Court ruled that the need for foreseeability of injury similarly applies to a claim in contract, and ruled that Mr. Mustapha equally failed there. The Court did observe that foreseeability of injury could be established if the defendant is shown to have previously known of the plaintiff's particular vulnerability, but in the case before the Court there was no evidence that Culligan had possessed such knowledge about Mr. Mustapha.
Perhaps the greatest significance of the Supreme Court's ruling in Mustapha is its clarification of the interplay between foreseeability for the purposes of assessing damages, and foreseeability for the purposes of determining whether any recovery is available for the plaintiff at all. It is under the former of these two issues that the so-called "thin skull rule" has emerged in the jurisprudence. By virtue of that rule a defendant cannot obtain a reduction of the plaintiff's award by showing that the injury he or she actually suffered was greater than the injury which would have been experienced by a person of average health. However, the Court's ruling in Mustapha clarified that it must first be reasonably foreseeable that an injury of some type would likely be suffered at all as a result of the breach of duty at issue, before an award of any damages can be made. In the case of Mr. Mustapha, the experts agreed that his psychiatric reactions were "highly unusual" and "very individual", and thus recovery was denied. The judgment has clarified that in personal injury claims in Canada, when the evidence before the court is that a person of ordinary fortitude would not have suffered injury, the plaintiff's action will fail.
1. 2008 SCC 27
2. White v. Chief Constable of South Yorkshire Police,  3 W.L.R. 1509
3. Supra, note 1, at paragraph 16
About Ogilvy Renault
Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.
Ogilvy Renault is the International Legal Alliance's Canadian Gold Award winner for 2008 in M&A and Corporate Finance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.