Mustapha v. Culligan of Can. Ltd. (2008), 375 N.R. 81 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2008] N.R. TBEd. MY.018
Waddah Mustapha (a.k.a. Martin Mustapha) (appellant/respondent on cross-appeal) v. Culligan of Canada Ltd. (respondent/appellant on cross-appeal)
(31902; 2008 SCC 27; 2008 CSC 27)
Indexed As: Mustapha v. Culligan of Canada Ltd.
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
May 22, 2008.
Summary:
The plaintiff saw dead flies in the unopened, replacement bottle of water provided by the defendant. The plaintiff, obsessed with the potential health implications for his family had they consumed the water, developed a major depressive order with associate phobia and anxiety. The plaintiff sued for damages in negligence and contract.
The Ontario Superior Court, in a judgment reported [2005] O.T.C. 276, found the defendant liable in negligence and awarded the plaintiff $341,775 damages for psychological injury. The defendant appealed against liability and damages.
The Ontario Court of Appeal, in a judgment reported (2006), 218 O.A.C. 271, allowed the appeal against liability on the ground that the psychological injury was not reasonably foreseeable. Accordingly, it was unnecessary to deal with the appeal respecting damages. The plaintiff appealed.
The Supreme Court of Canada dismissed the appeal on the ground that the plaintiff failed to prove that his damage was caused in law by the defendant’s negligence. His damage was too remote to allow recovery. The contract action also failed, as the plaintiff’s damage could not reasonably have been within the contemplation of the parties at the time of the agreement.
Damages – Topic 528
Limits of compensatory damages – Remoteness – Torts – Foreseeability – The plaintiff, because of his unique sensibilities, suffered psychological harm (personal injury) when the defendant delivered bottled water containing dead flies – The trial judge, although finding that the reaction was “objectively bizarre”, found the defendant liable in negligence – The Ontario Court of Appeal held that a defendant was not liable for psychological injury that was, objectively, an exaggerated reaction by an obsessive person of particular sensibilities to what was, in reality, a relatively minor or trivial incident – The Supreme Court of Canada dismissed the plaintiff’s appeal – The court held that: (1) the defendant, as the manufacturer of a consumable good, owed a duty of care to the defendant as the ultimate consumer of that good; (2) the defendant, as a supplier of bottled water for personal consumption, breached its duty to take reasonable care to ensure that the water was not contaminated by foreign elements; and (3) the plaintiff suffered damage, because the psychological injury suffered qualified as a personal injury at law – However, the damage (psychological injury) suffered by the plaintiff, although caused in fact by the defendant’s breach, was not caused in law by that breach because the damage was too remote to warrant recovery – A plaintiff’s “unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable” – It was not foreseeable that a person of ordinary fortitude would suffer serious injury from seeing flies in a bottle of water about to be installed – Further, a claim for damages for breach of contract was unsustainable where the plaintiff’s damage could not be reasonably supposed to have been within the contemplation of the parties when they entered into their agreement.
Damages – Topic 591
Limits of compensatory damages – Predisposition to damage (thin skull or crumbling skull rule) – ”Thin skull” or ”crumbling skull” – The Supreme Court of Canada held that a defendant was liable in negligence for a plaintiff’s psychological injury only if a person of ordinary fortitude would have suffered the damage – However, “once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude … the defendant must take the plaintiff as it finds him for purposes of damages. … focussing 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 damages at law.” – See paragraph 16.
Damages – Topic 595
Limits of compensatory damages – Predisposition to damage (thin skull or crumbling skull rule) – Personal injury – Victim’s mental condition – [See
Damages – Topic 591
].
Damages – Topic 2542
Torts affecting the person – Particular damage claims – Nervous shock – The Supreme Court of Canada stated that “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. … 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. … Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.” – See paragraph 9.
Damages – Topic 5706
Contracts – Breach of contract – Injured feelings or emotional upset – [See
Damages – Topic 528
].
Torts – Topic 60
Negligence – Causation – Foreseeability – [See
Damages – Topic 528
].
Torts – Topic 4338
Suppliers of goods – Negligence – Manufacturers – Unfit food or drink – [See
Damages – Topic 528
].
Cases Noticed:
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 4].
Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 4].
Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 5].
Cooper v. Hobart – see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.
Page v. Smith, [1996] A.C. 155; 182 N.R. 321 (H.L.), refd to. [para. 8].
Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), refd to. [para. 9].
Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1999), 127 O.A.C. 286; 48 O.R.(3d) 228 (C.A.), refd to. [para. 9].
Overseas Tankships (U.K.) Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound) (No. 1), [1961] A.C. 388 (P.C.), refd to. [para. 12].
Overseas Tankships (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon Mound) (No. 2), [1967] 1 A.C. 617 (P.C.), refd to. [para. 13].
White et al. v. Chief Constable of South Yorkshire et al., [1999] 2 A.C. 455; [1998] 3 W.L.R. 1509; 234 N.R. 121 (H.L.), refd to. [para. 14].
Devji v. Burnaby (District) et al. (1999), 129 B.C.A.C. 161; 210 W.A.C. 161; 180 D.L.R.(4th) 205; 1999 BCCA 599 (C.A.), refd to. [para. 14].
Tame v. New South Wales (2002), 211 C.L.R. 317; 2002 HCA 35, refd to. [para. 15].
Hadley v. Baxendale (1854), 156 E.R. 145; 9 Exch. 341 (Ex. Ct.), refd to. [para. 19].
Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3; 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 19].
Authors and Works Noticed:
Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), pp. 130 [para. 7]; 302 [para. 5]; 360 [para. 12]; 425 to 427 [para. 9].
Counsel:
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.
Solicitors of Record:
Pape Barristers, Toronto, Ontario, for the appellant/respondent on cross-appeal;
McCague Peacock Borlack McInnis & Lloyd, Toronto, Ontario, for the respondent/appellant on cross-appeal.
This appeal was heard on March 18, 2008, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.
On May 22, 2008, McLachlin, C.J.C., delivered the following judgment in both official languages for the Court.
