Yesterday I explained the background to the Mustapha v. Culligan of Canada cases. As expected, the Supreme Court issued its decision today. The full text of the lovely (read: short) decision can be be found here: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.
In a unanimous decision written by McLachlin CJC, the court threw out the appeal against Culligan. The reasons for judgment differed from those of the Ontario Court of Appeal (2006 CanLII 41807), with the Supreme Court finding that the negligence action failed at the remoteness of damages stage.
Here’s a summary:
Duty of care (para 6): As a manufacturer, Culligan owed a duty of care to the consumers of its products as per Donoghue v. Stevenson, [1932] A.C. 562 (HL).
Standard of care (para 7): The court was a little light on its reasons here, because the issue was not seriously argued after the trial level. The trial judge heard evidence that apparently flies were present in the bottling room and (obviously) could get into the bottles in spite of safeguards implemented by the company. Gross.
The Supreme Court concluded simply that Culligan breached the standard of care expected of it by not ensuring that water intended for consumption would be free of contaminants.
Damages (paras 8-10): The SCC reiterated that minor upset, anxiety, disgust, etc. are not recoverable in tort. However, Mr. Mustapha suffered recognizable and serious psychiatric trauma (namely a major depressive disorder coupled with anxiety and phobia). As such, Mr. Mustapha’s psychological injuries were very serious and sufficiently interfered with his quality of life to be recoverable.
Causation (paras 11-18): This was the crux of the SCC’s judgment:
“in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do.” (para 18, my emphasis)
The trial judge was mistaken in applying a subjective standard which took into account Mr. Mustapha’s past history, circumstances, and cultural factors.
The chief justice did make one important qualification to the objective standard. At para 17, she writes:
“In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant.”
Conclusion (para 20): Mr. Mustapha’s appeal was dismissed with costs.
So there we have it.
I still think this analysis suffers GREATLY from a lack of discussion of the thin-skull rule, and here’s why: if the complainant was regular dude who reacted this way, then okay, unreasonable. But from what I can glean from the decision, he showed more than a few signs of OCD. His obsession with cleanliness was not only potentially pathological, but it was the vary trait to which Culligan marketed! Hence pre-existing condition, hence thin-skull application. I’m not saying it would have been successful, mind you, just that I’m disappointed it wasn’t argued.
Of course, the SCC seems to have been constrained by the lack of discussion in the lower courts, which implies to me that the issue wasn’t plead. Que sera, sera.
Sarah: I noticed that too.
Here’s the thing though, if I recall correctly, Mr. Mustapha’s fairly obvious OCD was never argued/claimed in any of the cases. The courts just say he has “objectively bizarre” beliefs and whatnot.
The depression he suffered subsequent to seeing the fly was separate from any underlying OCD he might have had. I think it would be necessary for the plaintiff’s psychiatric expert witness to claim that (1) Mr. Mustapha suffers from diagnosed OCD; and (2) his subsequent diagnosed depression/anxiety/phobia grew directly out of that OCD.
Unfortunately, it does not seem that that was pleaded, so the thin skull principle was left with little application. There is some discussion of it at the trial level, if you’re interested.
p.s. I can’t believe I’m arguing law on a lovely Summer afternoon :) What have I become?!
I was speaking with Anthony Giannotti, counsel for the Plaintiff, 5 min. after the verdict came out today in Toronto. He has an interesting story aside from the court report.
He’s agreed to do an interview – we should have a podcast up shortly.
Also, see the Alberta Law Review’s forum on this topic.