Damage not Reasonably Foreseeable: Supreme Court Dismisses Fly-in-the-Water Case

We wrote yesterday that the Supreme Court of Canada was to rule on tort of pure psychiatric injury in the "fly-in-the-water" case, which they have done today.

Waddah Mustapha’s appeal has today been dismissed by Canada's highest court.

The court found that Culligan owed Mr. Mustapha a duty of care; that Culligan breached the standard of care; and that Mr. Mustapha sustained damage.

However, the court found that Mr. Mustapha failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury that he did, from seeing the flies in the bottle of water.

Regarding whether Mr. Mustapha’s damages were caused by Culligan’s breach the court wrote:

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 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.…… the law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.

…. to put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

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.

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.

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.

Read the full text of the Court's decision in Mustapha v. Culligan of Canada Ltd. here.

Also see CBC News coverage of this decision: Top court dismisses fly-in-water case

- Shashi K. Raina, Toronto

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