Nov 22, 2014

Mustapha v Culligan of Canada - Case Summary

Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 SCR 114


Plaintiff (P) was replacing an empty water cooler bottle with a full one, and saw a dead fly and part of another dead fly in the unopened replacement bottle

He developed major depressive disorder, phobia and anxiety as a result

Sued Defendant (D), the supplier for psychiatric injury

Prior Proceedings

At trial: general and special damages (for $300,000)

Appeal: overturned on the basis of no foreseeability and therefore no cause of action


Had cause of action been established?


An action in negligence requires the P demonstrate:

  • (a) D owed P a duty of care

  • (b) D’s behaviour breached the standard of care

  • (c) P sustained damages

  • (d) the damages were caused in fact and in law by the breach

Reasons for Judgment:

Deny, but not for the same reasons as the court of appeal (though they are more similar than McLaughlin says) – she sits this distinction within the remoteness analysis

The damage was made out as cause in fact

Damage is too remote (cause in law was not made out; even though cause in fact was)

D owed P a duty of care in supplying products, and breached that standard with a contaminated product

The requirement of personal injury is also met

D’s breach caused injury in fact, but not in law; P didn’t show it was foreseeable that a ‘person of ordinary fortitude’ would suffer serious injury from seeing flies in a bottle of water he was about to install

Too remote; is the harm too unrelated to the wrongful conduct to hold the D liable; is the test to apply

Extreme reactions are imaginable but not reasonably foreseeable, and the judge must apply an objective standard

Note that if D knew that P was a person of less than ordinary fortitude, then the P’s injury may be reasonably foreseeable to a D…but not in this case


Appeal dismissed; no liability for nervous shock

Further Significance:

(note if he ingested it and there was physical harm, there would be no problem on damages)

The foresight of the reasonable person alone determines the foreseeability requirement

Since Wagon Mound, we have talked about the reasonable person – now we move from talking about ‘possibility of probability of harm’ (in the old cases) – to whether it is a “real risk or a farfetched one” today

Any harm which has actually occurred is possible – so its clear that possibility alone provides no standard for reasonable foreseeability

The risk is one that a person of reasonable mind would have contemplated

P must show it was foreseeable to a person of ordinary fortitude that they would suffer serious injury from this type of negligence

For this type of injury, you DO NOT take the victim as you find them. You expect them to be of reasonable fortitude and ordinary robustness