Date: Fri, 23 May 2008 02:38

From: Harold Luntz

Subject: New SCC case on Nervous Shock

Isn't the SCC refreshing? Mustapha = 20 paras; Tame = 367 paras (all right, the HCA was dealing with two cases!). But as Neil well knows, the legislature has intervened in NSW and elsewhere. Now we have the Civil Liability Act 2002, which inter alia provides:

32 Mental harm-duty of care

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. ...

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

Regards,
Harold Luntz.

Jason Neyers wrote:

Mustapha is released. From the headnote:

  

Waddah Mustapha v Culligan of Canada Ltd.

In the course of replacing an empty bottle of drinking water with a full one, M saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its “revolting implications” for the health of his family, he developed a major depressive disorder, phobia and anxiety. He sued C, the supplier of the bottle of water, for psychiatric injury. The trial judge awarded him general and special damages, as well as damages for loss of business, but the Court of Appeal overturned the judgment on the basis that the injury was not reasonably foreseeable and hence did not give rise to a cause of action.

Held: The appeal and the cross-appeal should be dismissed.

M’s damages are too remote to allow recovery. As the manufacturer of a consumable good, C owed M, the ultimate consumer of that good, a duty of care in supplying bottled water to him, and it breached the standard of care by providing M with contaminated water. The requirement of personal injury, which includes serious and prolonged psychological injury, is also met: M suffered a debilitating psychological injury which had a significant impact on his life. C’s breach caused that injury in fact, but not in law: M failed to 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. Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. In this case, the trial judge erred in applying a subjective standard. [3] [6-11] [15] [18]

The claim for damages for breach of contract also fails. M's damages could not be reasonably supposed to have been within the contemplation of the parties when they entered into their agreement. [19]

<<<< Previous Message  ~  Index  ~  Next Message >>>>>