Date: Tue, 27 May 2008 16:00

From: Jason Neyers

Subject: The refreshing SCC

It's probably just me but I just don't understand the English breach of duty way of formulating a claim in negligence. Culligan did breach the standard of care, they created a real risk of injury by allowing contaminants in the bottle marketed as fit for human consumption. It seems to me that they did owe Mustapha a duty at least for personal injury since if he had gotten sick after drinking the water (having not noticed the fly) they would have been liable to him. But the damage he actually suffered was too remote, it was not the type of damage that was reasonably foreseeable. Or one could say that they did not owe him a duty for that type of damage. 6 of one ½ dozen of another. Isn't that the bog standard analysis given in the Wagon Mound 1?

I remember Allan Beever being critical of using "breach of duty" language in his book and I think I agree: one doesn't breach duties of care but standards of care.

Can someone enlighten me?

Jason Neyers
Associate Professor of Law
Faculty of Law 
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

Robert Stevens wrote:

The SCC rightly saw that they could not define the standard of reasonable foreseeability but wrongly thought they were dealing with an issue of remoteness, when in fact they were faced, as Ben Zipursky rightly points out, with the question of whether the duty owed had been breached.

The degree of likelihood with which the resultant injury to the claimant must be foreseeable before we can say that the defendant's negligence constitutes a wrong with respect to the claimant is dependent upon a number of factors. Most obviously, if the foreseeable possible injury is serious (e.g. death) the degree of likelihood may be much lower than for one which is trivial. Other factors, for example ease of precautions, are also relevant so that we cannot define 'reasonable' foreseeability as, say, 10% probable. If the potential injury is very serious, there are easy precautions and, say, the action is itself unlawful for other reasons the degree of probability may be very low indeed, not far fetched as in Wagon Mound (No 2). In other circumstances what will constitute reasonable foresight may be different. All this is true in the context of psychiatric injury just as much as for physical injury.

'Remoteness' properly speaking is an issue where we know that the defendant has committed a wrong (i.e. a breach of duty) with respect to the claimant and we wish to know the scope of liability for consequential losses. At that stage, the same range of factors do not apply. If reasonable foreseeability is to be our test at this stage, I don't think the degree of likelihood should vary. We never got to this stage in Mustapha because the defendant did not commit a wrong with respect to the claimant.

The SCC seem to assume [7] that negligence in 'thin air' suffices. This is simply wrong, see the unanimous decision of the HL in Bourhill v Young [1943] AC 92, which is the Commonwealth equivalent of Cardozo CJ in Palsgraf.

If, following Michael's lead, we are grading I'd give them 7/10. The result is clearly right, the mistake made is a common one but didn't matter, they kept it short, and I am well known for my generosity towards others.

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