SUPREME
COURT OF CANADA
Between:
Waddah Mustapha
(a.k.a. Martin Mustapha)
Appellant /
Respondent on cross‑appeal
and
Culligan of Canada
Ltd.
Respondent /
Appellant on cross‑appeal
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 20)
|
McLachlin C.J. (Bastarache, Binnie, LeBel, Deschamps,
Fish, Abella, Charron and Rothstein JJ. concurring)
|
______________________________
Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114,
2008 SCC 27
Waddah
Mustapha
(a.k.a. Martin Mustapha) Appellant/Respondent on cross‑appeal
v.
Culligan of Canada Ltd. Respondent/Appellant
on cross‑appeal
Indexed as: Mustapha v.
Culligan of Canada Ltd.
Neutral citation: 2008 SCC 27.
File No.: 31902.
2008: March 18; 2008: May 22.
Present: McLachlin C.J. and Bastarache, Binnie,
LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Torts — Negligence — Duty of care — Foreseeability —
Personal injury — Mental injury — Customer suing his bottled water supplier in
negligence after finding remains of flies in unopened bottle — Customer
claiming mental injury — Whether damage too remote to allow recovery.
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 damage is 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 damage could not be reasonably supposed to have been within the
contemplation of the parties when they entered into their agreement. [19]
Cases Cited
Referred to: Donoghue
v. Stevenson, [1932] A.C. 562; Anns v. Merton London Borough Council,
[1978] A.C. 728; Cooper v. Hobart, [2001] 3 S.C.R. 537, 2001 SCC 79; Page
v. Smith, [1996] 1 A.C. 155; Hinz v. Berry, [1970] 2 Q.B. 40; Vanek
v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228; Overseas
Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388; Overseas
Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617; White
v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509; Devji
v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Tame
v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35; Hadley v.
Baxendale (1854), 9 Ex. 341, 156 E.R. 145; Fidler v. Sun Life Assurance
Co. of Canada, [2006] 2 S.C.R. 3, 2006 SCC 30.
Authors Cited
Linden, Allen M., and Bruce
Feldthusen. Canadian Tort Law, 8th ed. Markham, Ont.: LexisNexis
Butterworths, 2006.
APPEAL and CROSS‑APPEAL from a judgment of the
Ontario Court of Appeal (Cronk and Blair JJ.A. and Then J. (ad hoc))
(2006), 84 O.R. (3d) 457, 275 D.L.R. (4th) 473, 218 O.A.C. 271, 43 C.C.L.T.
(3d) 27, [2006] O.J. No. 4964 (QL), 2006 CarswellOnt 7937, setting aside a
judgment of Brockenshire J. (2005), 32 C.C.L.T. (3d) 123, [2005] O.J. No. 1469
(QL), 2005 CarswellOnt 1456, allowing an action in negligence. Appeal and
cross‑appeal dismissed.
Paul J. Pape, Susan
M. Chapman and John J. Adair, for the appellant/respondent on cross‑appeal.
Hillel David and Lisa
La Horey, for the respondent/appellant on cross‑appeal.
The judgment of the Court was delivered by
[1]
The Chief Justice —
The plaintiff, Mr. Mustapha, sues for psychiatric injury sustained as a result
of seeing the dead flies in a bottle of water supplied by the defendant,
Culligan. In the course of replacing an empty bottle of drinking water with a
full one, Mr. Mustapha saw a dead fly and part of another dead fly in the
unopened replacement bottle. He became obsessed with the event and its
“revolting implications” for the health of his family, which had been consuming
water supplied by Culligan for the previous 15 years. The plaintiff developed
a major depressive disorder with associated phobia and anxiety. He sued Culligan
for damages.
[2]
The trial judge found that seeing the flies in the water resulted
in psychiatric injuries to Mr. Mustapha, and awarded him $80,000 in general
damages, $24,174.58 in special damages, and $237,600 in damages for loss of business
((2005), 32 C.C.L.T. (3d) 123). The Ontario 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 ((2006), 84 O.R. (3d) 457). The issue
before this Court is whether the cause of action has been established. For
different reasons than the Court of Appeal, I conclude that it has not.
[3]
A successful action in negligence requires that the plaintiff
demonstrate (1) that the defendant owed him a duty of care; (2) that the
defendant’s behaviour breached the standard of care; (3) that the plaintiff
sustained damage; and (4) that the damage was caused, in fact and in law, by
the defendant’s breach. I shall examine each of these elements of negligence in
turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to
establish that his damage was caused in law by the defendant’s negligence. In
other words, his damage is too remote to allow recovery.
1. Did the
Defendant Owe the Plaintiff a Duty of Care?
[4]
The first question to consider in an action for negligence is
whether the defendant owed the plaintiff a duty of care. The question focuses
on the relationship between the parties. It asks whether this relationship is
so close that the one may reasonably be said to owe the other a duty to take
care not to injure the other: Donoghue v. Stevenson, [1932] A.C. 562
(H.L.). Whether such a relationship exists depends on foreseeability,
moderated by policy concerns: Anns v. Merton London Borough Council,
[1978] A.C. 728 (H.L.).
[5]
In many cases, the relationship between the plaintiff and the
defendant is of a type which has already been judicially recognized as giving
rise to a duty of care. In such cases, precedent determines the question of
duty of care and it is unnecessary to undertake a full-fledged duty of care
analysis. As stated by A. M. Linden and B. Feldthusen, categories of
relationships that have been recognized and relationships analogous to such
pre-established categories need not be tested by the Anns formula: Canadian
Tort Law (8th ed. 2006), at p. 302; Cooper v. Hobart, [2001] 3
S.C.R. 537, 2001 SCC 79, at paras. 35-36.
[6]
The relationship between the parties in this case does not belong
to a novel category. It has long been established that the manufacturer of a
consumable good owes a duty of care to the ultimate consumer of that good: Donoghue
v. Stevenson. It follows that Culligan owed Mr. Mustapha a duty of care in
the supplying of bottled water to him.
2. Did the
Defendant’s Behaviour Breach the Standard of Care?
[7]
The second question in a negligence action is whether the
defendant’s behaviour breached the standard of care. A defendant’s conduct is
negligent if it creates an unreasonable risk of harm (Linden and Feldthusen, at
p. 130). The trial judge found that the defendant Culligan breached the
standard of care by providing the plaintiff with contaminated water, and the
parties did not appeal that finding before this Court. This is hardly
surprising; it is clear that a supplier of bottled water intended for personal
consumption is under a duty to take reasonable care to ensure that the water is
not contaminated by foreign elements. The second element of liability in tort
for negligence is therefore met.
3. Did the
Plaintiff Sustain Damage?
[8]
Generally, a plaintiff who suffers personal injury will be found
to have suffered damage. Damage for purposes of this inquiry includes
psychological injury. The distinction between physical and mental injury is
elusive and arguably artificial in the context of tort. As Lord Lloyd said 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 seem 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 added.]
[9]
This said, psychological disturbance that rises to the level of
personal injury must be distinguished from psychological upset. Personal
injury at law connotes serious trauma or illness: see Hinz v. Berry,
[1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and
Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety,
agitation or other mental states that fall short of injury. I would not
purport to define compensable injury exhaustively, except to say that it must
be serious and prolonged and rise above the ordinary annoyances, anxieties and
fears that people living in society routinely, if sometimes reluctantly,
accept. The need to accept such upsets rather than seek redress in tort is
what I take the Court of Appeal to be expressing in its quote from Vanek v.
Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.):
“Life goes on” (para. 60). Quite simply, minor and transient upsets do not
constitute personal injury, and hence do not amount to damage.
[10]
On the findings of the trial judge, supported by medical evidence,
Mr. Mustapha developed a major depressive disorder with associated phobia and
anxiety. This psychiatric illness was debilitating and had a significant
impact on his life; it qualifies as a personal injury at law. It follows that
Mr. Mustapha has established that he sustained damage.
4. Was the
Plaintiff’s Damage Caused by the Defendant’s Breach?
[11]
The fourth and final question to address in a negligence
claim is whether the defendant’s breach caused the plaintiff’s harm in fact and
in law. The evidence before the trial judge establishes that the defendant’s
breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury.
We are not asked to revisit this conclusion. The remaining question is whether
that breach also caused the plaintiff’s damage in law or whether it is too
remote to warrant recovery.
[12]
The remoteness inquiry asks whether “the harm [is] too
unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden
and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the
principle has been that “it is the foresight of the reasonable man which alone
can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock
& Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).
[13]
Much has been written on how probable or likely a harm needs to
be in order to be considered reasonably foreseeable. The parties raise the
question of whether a reasonably foreseeable harm is one whose occurrence is probable
or merely possible. In my view, these terms are misleading. Any harm
which has actually occurred is “possible”; it is therefore clear that
possibility alone does not provide a meaningful standard for the application of
reasonable foreseeability. The degree of probability that would satisfy the
reasonable foreseeability requirement was described in The Wagon Mound (No.
2) as a “real risk”, i.e. “one which would occur to the mind of a
reasonable man in the position of the defendan[t] . . . and which he would not
brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller
Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).
[14]
The remoteness inquiry depends not only upon the degree of
probability required to meet the reasonable foreseeability requirement, but
also upon whether or not the plaintiff is considered objectively or
subjectively. One of the questions that arose in this case was whether, in
judging whether the personal injury was foreseeable, one looks at a person of
“ordinary fortitude” or at a particular plaintiff with his or her particular
vulnerabilities. This question may be acute in claims for mental injury, since
there is a wide variation in how particular people respond to particular
stressors. The law has consistently held — albeit within the duty of care
analysis — that the question is what a person of ordinary fortitude would
suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3
W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th)
205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The
law expects reasonable fortitude and robustness of its citizens and will not
impose liability for the exceptional frailty of certain individuals.”
[15]
As the Court of Appeal found, at para. 49, the requirement that
a mental injury would occur in a person of ordinary fortitude, set out in Vanek,
at paras. 59-61, is inherent in the notion of foreseeability. This is true
whether one considers foreseeability at the remoteness or at the duty of care
stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317,
[2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea
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” (para. 16). To put it another way, unusual or extreme
reactions to events caused by negligence are imaginable but not reasonably foreseeable.
[16]
To say this is not to marginalize or penalize those particularly
vulnerable to mental injury. It is merely to confirm that the law of tort
imposes an obligation to compensate for any harm done on the basis of reasonable
foresight, not as insurance. 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 damage, 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 purposes of damages. As stated in White, at p. 1512, focusing on
the person of ordinary fortitude for the purposes of determining foreseeability
“is not to be confused with the ‘eggshell skull’ situation, where as a result
of a breach of duty the damage inflicted proves to be more serious than
expected”. Rather, it is a threshold test for establishing compensability of
damage at law.
[17]
I add this. 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. In this case, however, there was no evidence to support a
finding that Culligan knew of Mr. Mustapha’s particular sensibilities.
[18]
It follows that 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. The only evidence was about his own
reactions, which were described by the medical experts as “highly unusual” and
“very individual” (C.A. judgment, at para. 52). There is no evidence that a
person of ordinary fortitude would have suffered injury from seeing the flies
in the bottle; indeed the expert witnesses were not asked this question. Instead
of asking whether it was foreseeable that the defendant’s conduct would have
injured a person of ordinary fortitude, the trial judge applied a subjective
standard, taking into account Mr. Mustapha’s “previous history” and “particular
circumstances” (para. 227), including a number of “cultural factors” such as
his unusual concern over cleanliness, and the health and well-being of his
family. This was an error. Mr. Mustapha having failed to establish that it
was reasonably foreseeable that a person of ordinary fortitude would have
suffered personal injury, it follows that his claim must fail.
5. The Claim
in Contract
[19]
The plaintiff also brought a claim for damages arising out of
breach of contract, although he appears not to have pursued it with vigour.
This claim fails. With regards to Mr. Mustapha’s psychiatric injury, there is
no inconsistency in principle or in outcome between negligence law and contract
law. Damages arising out of breach of contract are governed by the expectation
of the parties at the time the contract was made (Hadley v. Baxendale (1854), 9 Ex. 341, 156
E.R. 145, at p. 151, applied with respect to mental distress in Fidler v.
Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3, 2006 SCC 30),
as distinguished from the time of the tort, in the case of tort. I have concluded that personal injury
to Mr. Mustapha was not reasonably foreseeable by the defendant at the time
of the alleged tort. The same evidence suggests that Mr. Mustapha’s damage could
not be reasonably supposed to have been within the contemplation of the parties
when they entered into their agreement.
6. Conclusion
[20]
For the reasons discussed, I conclude that the loss suffered by
the plaintiff, Mr. Mustapha, was too remote to be reasonably foreseen and that
consequently, he cannot recover damages from the defendant. I would dismiss
the appeal with costs. In light of these findings, I find it unnecessary to
deal with the cross-appeal, and dismiss it without costs.
Appeal dismissed with costs. Cross‑appeal
dismissed.
Solicitors for the appellant/respondent on cross‑appeal: Pape
Barristers, Toronto.
Solicitors for the respondent/appellant on cross‑appeal: McCague
Peacock Borlack McInnis & Lloyd, Toronto.