After a long hiatus, Legally Brown’s resident torts junkie is back at it again. The topic of discussion for this post is Mustapha v Culligan (2008). While this case is on the older side, it’s one hell of a precedent. What are the facts? Mr. Mustapha purchased a bottle of drinking water (the kind that you can use for at-home water dispensers but will probably take your back out lifting it) from Culligan. Unbeknownst to Mr. Mustapha, this bottle had dead mosquitos floating around in it (or more accurately, one mosquito and half of another). Unlike the average person who may have gone back to the store demanding a refund, Mr. Mustapha went to court asking for $341,775. While it may seem ridiculous that something as simple as this, which could be taken care of through a customer complaint line or a nasty Google Review, to be taken to court, this was not a “frivolous” matter to Mr. Mustapha. While Mr. Mustapha did not consume the water, the sight of the mosquitos triggered a whole host of psychiatric issues including major depression, anxiety, specific phobias and obsessional thoughts. Oh, and the most quoted side effect - the negative impact on his sex life. The media has sensationalized this case however, as unusual as this case is, it is important to remember that the incident had a very real impact on Mr. Mustapha. While Mr. Mustapha was successful in achieving damages at the court of first instance, he was unable to achieve the same results on appeal. Culligan appealed to the Ontario Court of Appeal where the court found in their favour. The court noted two flaws in the judgment of the trial judge - his failure to incorporate an objective component to the duty of care and opting for the standard of possibility rather than reasonable foreseeability. This case eventually travelled to the Supreme Court where in a 9-0 decision, Mr. Mustapha lost the appeal. To briefly put on my constitutional scholar hat, the unanimous decision speaks volumes. The court is unified on the stance that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.” The debate about the prevalence of tort law’s distinction between psychiatric injury and mental injury is invoked in Mustapha. Some argue that despite the Supreme Court’s statement that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort,” they adhered to the distinction by failing to apply the but-for test. Whereas the but-for test is generally respected vis-a-vis physical injury where the plaintiff can claim damages if they are able to demonstrate that their pre-existing disposition (thin skull) to a certain injury would not have materialized had it not been for the defendant’s negligence, cases like Mustapha show that the rule is not readily transferred in the realm of psychiatric injury. From my understanding, Mr. Mustapha failed to establish a duty of care, not causation. The Supreme Court held that there was no reasonable foreseeability that an ordinary person would suffer the psychiatric damage that Mr. Mustapha did. There was no question about causation - the Supreme Court acknowledged that Culligan’s negligence did in fact cause the damage to Mr. Mustapha. Perhaps it’s an overly artificial distinction but from my amateur understanding of tort law, there is a structure to a negligence claim that must be satisfied to achieve damages. The structure is as follows: an act by the defendant, duty of care, carelessness, causation, remoteness and harm. The issue examined in detail in Mustapha concerns duty of care, not causation. Duty of care and remoteness pertain to legal causation rather than the strict factual causation that is informed by the but-for test. In no way do I intend to detract from arguments that claim that the tort law regime differentiates between psychiatric and physical injury through this post. I do believe there is a real double standard when it comes to litigating psychiatric injury. I just don’t think Mustapha is the right case to hang these arguments on. By: Veena Ganesarasa
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