S.C.C. Upholds Dismissal of “Fly in Bottle” Case, Saying Law of Negligence Is Not Insurance

In a unanimous decision, the Supreme Court of Canada today dismissed the plaintiff’s appeal in Mustapha v. Culligan of Canada Limited and upheld the Ontario Court of Appeal’s dismissal of the action.

The plaintiff Mustapha had experienced a severe and very unusual psychological reaction to the sight of the remains of two flies in a bottle of water sold to him by Culligan of Canada. He was so revolted that he developed severe depression, phobia and anixiety. He sued Culligan for damages in negligence and in breach of contract. The trial and Court of Appeal decisions in this case were the subjects of previous posts on our website.

At trial, Mr. Justice John Brockenshire found for the plaintiff and awarded damages of $341,774. The Court of Appeal reversed that decision and dismissed the plaintiff’s claim, on the basis that the profound effect that the sight of the flies in the water bottle had had on this plaintiff was not reasonably foreseeable by Culligan. The Supreme Court came to the same conclusion.

The Court’s relatively brief reasons were written by Chief Justice Beverley McLachlin. She said that, to recover damages for negligence, a plaintiff must prove four elements:

  1. a duty of care;
  2. breach of that duty;
  3. damage; and
  4. that the damage was caused, in fact and in law, by the breach of duty.

The plaintiff in this case satisfied all parts of the test, except the requirement that the damage be caused in law by the defendant’s breach. Here, while the plaintiff’s psychological symptoms were found to have been caused in fact by Culligan’s breach of its duty, they had not been caused in law by that breach because it was not reasonably foreseeable by Culligan that anyone would have such an extreme reaction to the sight of dead flies in one of its bottles of water. The Court said that while it was obviously possible for someone to suffer such serious psychological damage in these circumstances (since it had actually occurred here), more is required before legal liability can be imposed.

McLachlin CJC said that the trial judge had erred in applying a subjective test instead of an objective one. She remarked that “unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable”.

Chief Justice McLachlin went on to emphasize that the law of negligence is not the same as insurance, that compensates for every injury:

[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 damages, 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 damages at law.

The Court noted that if Culligan had been aware of Mr. Mustapha’s special vulnerability, the outcome of the case might have been different. But there was no evidence of that here.

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