Date: Tue, 27 May 2008 10:43

From: Benjamin Zipursky

Subject: New SCC case on Nervous Shock

As an outside observer (to SCC decisions, not to emotional harm cases), I am initially inclined to think the brevity of the decision is admirable, especially as to this particular case. Indeed, I think the decision might have been shorter; it is confusing and unnecessary to say that the defendant "breached the standard of care". The important point is that even if one assumes that the defendant failed to live up to the standard of care, the unforeseeability of serious and prolonged psychological injury from seeing contaminated water defeats the claim as a matter of law.

I have followed this case since it was decided at the trial court level. The reason I think brevity was in order is three-fold:

(a) this claim should never have made it this far; it was palpably very weak from its inception, and the SCC signals that from the brevity of its opinion;

(b) there was some fairly strange commentary on ethnic differences in the trial court opinion, and it is probably the case that there is no way for the Court to win by getting more deeply into the facts of the case;

(c) in my opinion, it is probably best not to engage the perilous business of saying what reasonable foreseeability means when (i) one does not need to do so; (ii) it is not obvious whether it is a breach, a proximate cause, or a duty question as to which reasonable forseeability is being employed.

With all of that said, I would add that, on the merits, I myself regard it as a case about the relationship between breach and duty. Given that there is no liability in negligence unless the negligence was a breach of a duty owed to plaintiff, and there was no predicate physical injury in this case, this was a pure emotional harm case in which liability depended on the existence of a duty to take care, in one's activities, not to cause serious and prolonged emotional harm to others (in this case, bottled water customers in particular). Even assuming there was some such duty, it is not remotely plausible that the plaintiff alleged facts sufficient to support a claim that there was a breach of that duty. The patently idiosyncratic reaction to the fly in the bottle made the injury such that no reasonable fact finder could regard it as reasonably foreseeable (to a defendant situated as Culligan was), and therefore no reasonable factfinder could conclude that the defendant failed to take care not to cause severe and prolonged emotional harm to the plaintiff - i.e., no reasonable fact finder could determine that there was the right sort of breach to support the negligence claim here.

Being a bizarre case about the relativity of breach to duty, and about reasonable foreseeability, it obviously shares something with Palsgraf, in my view. Another reason for thinking that it is hard to say much in this case, without getting oneself in trouble.

Finally, this e-mail is probably longer than the opinion. Perhaps I am simply envious of the Court's capacity for brevity.

Cheers,
Ben Zipursky

>>> Jason Neyers 05/22/08 11:05 AM >>>

 

Mustapha is released. From the headnote:

  

Waddah Mustapha v Culligan of Canada Ltd.

In the course of replacing an empty bottle of drinking water with a full one, M saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its “revolting implications” for the health of his family, he developed a major depressive disorder, phobia and anxiety. He sued C, the supplier of the bottle of water, for psychiatric injury. The trial judge awarded him general and special damages, as well as damages for loss of business, but the Court of Appeal overturned the judgment on the basis that the injury was not reasonably foreseeable and hence did not give rise to a cause of action.

Held: The appeal and the cross-appeal should be dismissed.

M’s damages are too remote to allow recovery. As the manufacturer of a consumable good, C owed M, the ultimate consumer of that good, a duty of care in supplying bottled water to him, and it breached the standard of care by providing M with contaminated water. The requirement of personal injury, which includes serious and prolonged psychological injury, is also met: M suffered a debilitating psychological injury which had a significant impact on his life. C’s breach caused that injury in fact, but not in law: M failed to 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. Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. In this case, the trial judge erred in applying a subjective standard. [3] [6-11] [15] [18]

The claim for damages for breach of contract also fails. M's damages could not be reasonably supposed to have been within the contemplation of the parties when they entered into their agreement. [19]

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