Date: Tue, 27 May 2008 14:00

From: Barbara Legate

Subject: The refreshing SCC

On a much more pragmatic level, (and unlikely to be popular given what I have read so far) the case is exceedingly difficult, naive and will cause a great deal of expense in litigation. Consider:

1. Most psychiatric diagnoses are now seen in a physical context. For e.g., anxiety, a condition cited by the court. Anti-anxiolytics work on the chemistry of the brain. This judgment, in its old fashioned view of psychological harm, just added a week to every trial involving such injury. Plaintiffs’ counsel will lead evidence of differences in MRI findings, regions of the brain affected and etc in an effort to demonstrate that the plaintiff’s injury is physical. Defence counsel will find ancient psychiatrists to counter. The whole thing will be a wasteful week of expensive evidence. The winner: medical expert witnesses.

2. I had stopped using medical art to demonstrate concepts of pain and etc because, at the trial level, judges simply don’t need that much help. It will now be necessary to return this evidence to the courtroom with a vengeance, not for them but for those higher up. FYI each board produced will cost $1500.

3. What is normal fortitude? What evidence can be called on that issue or are we left with the assessment of a rarefied group sitting on the bench to figure that out? Are the OCD sufferers toiling away in Silicon Valley making a very good wage, raising families and etc but working literally day and night, of normal fortitude? Unfortunately, OCD sufferers can react a little strangely to things others might not. Name a condition, and it can be very adaptive in its own little niche in the world. Writers are often depressed but have insights giving their writing depth that we are left to enjoy. Are they of normal fortitude if, on the GAF (global assessment of function used by shrinks to compare one’s function) they are functioning most days at 100? For that matter, what is normal on the GAF? How low can you go and still be of normal fortitude? Mr. M was working and raising a family. His GAF would have been 100 on that criterion, before the bottle incident. Normal fortitude in a culturally diverse world does not exist.

4. The uncertainty of the foreseeability of harm. When does one litigate? How does counsel decide in the face of the evidence we know about, whether to litigate or not?

There should be no difference between psychological and physical harm. In the modern world it is a useless concept. Mr M was likely a crumbling skull and should have been treated as such. Although themselves ancient concepts from another era of medicine, crumbling and thin skulls work because the concepts are easily understood. Injecting normal fortitude into the mix should have a very, very short shelf life.

Barbara Legate

Please visit us at: www.legate.ca

150 Dufferin Ave Suite 302
London, ON N6A 5N6
Tel: 519-672-1953
Fax: 519-672-6689

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From: Jones, Michael
Sent: Tuesday, May 27, 2008 6:08 AM
To: Lewis KLAR; Vaughan Black
Subject: RE: the refreshing SCC

Concise judgments are to be welcomed, but not at the expense of accuracy. The statement at para. [6] of the judgment is an example:

[6] The relationship between the parties in this case does not belong to a novel category. It has long been established that the manufacturer of a consumable good owes a duty of care to the ultimate consumer of that good: Donoghue v. Stevenson. It follows that Culligan owed Mr. Mustapha a duty of care in the supplying of bottled water to him.

It does not in the least “follow” from Donoghue v Stevenson that Culligan owed Mr. Mustapha a duty of care. One of the central features of Donoghue, stressed to generations of students, was that the bottle was opaque, and that Mrs. D had been unable to see that the ginger beer was contaminated until after she had consumed some of the drink. It was (and remains) self-evident that if the bottle had not been opaque, Mrs. D had seen the decomposing snail, but had nonetheless proceeded to drink the ginger beer, there would have been no liability. Now you can analyse this in different ways – you could say that her conduct broke the causal link, but the better view, I think, is that Stevenson did not owe her a duty of care in respect of risks that were obvious to her, i.e. the scope of the duty was restricted to the (assumed) facts, which included the opacity of the bottle. Now if Mrs. D is not owed a duty in respect of seeing obviously contaminated drink and then drinking it (developing a physical reaction), how on earth could she be owed a duty of care in respect of seeing contaminated drink and not drinking it, developing harm (a deliberately neutral word to encompass physical and psychiatric damage) as a result of obsessing about what might have happened had she chosen to drink it? Lord Atkin would be shocked at such an outcome (though whether he would have suffered a recognised psychiatric condition, the record does not show). It is simply not sufficient for the Supreme Court to say that D owed P a “catch-all” duty of care. A student who made the statement in para. [6] in an exam would get 3/10 from me (I was marking Tort scripts last week …).

A second feature of Mustapha, which is not really remarked upon, is the question of factual causation (not remoteness). The problem stems from the way courts approach expert evidence combined with a potentially facile application of the “material contribution” to damage causation test, as applied to psychiatric conditions. It is notoriously difficult to attribute causal relationships between events and psychiatric reactions, not least because individuals differ enormously in their reactions depending upon their psychological make-up and their emotional and social history. Of all the psychiatric conditions to be found in DSM-IV (and there are hundreds) the only one to which any cause is attributed is PTSD (the term “post-traumatic” necessarily involves a conclusion that the disorder was “caused” by a “traumatic” event or events). All other psychiatric conditions are considered to have multi-factorial or unknown causes. So (apart from PTSD) if you ask a psychiatrist whether event A “caused” psychiatric condition B, the cautious response is “it’s impossible to say”, but it “could have” or “might have” or “possibly”. But if you ask a psychiatrist whether event A “contributed to” psychiatric condition B it is easy (at least from the perspective of psychiatry) to say that there was “probably some material contribution”, because the causes are multifactorial, and it is not stretching credibility to add one more cause to the many other factors at work. When you are piling straw on the camel’s back, one more piece of straw does not seem such a big deal. If the psychiatrist is asked “could this event have ‘triggered’ the psychiatric reaction?”, then again it is easy to say yes, because the “last straw image” is pretty compelling. The “reality” (if it is possible to speak in such terms in this context) is that it was all the other straw on the camel’s back that really caused the problem, not the last one put there by the defendant. But the claimant has overcome factual causation, so we are on the road to considering whatever legal devices apply to limit the range of liability.

I agree with Lewis. Foreseeability is hugely problematic. It is a term that conceals as much as it reveals. The average man or woman in the street, on the Clapham omnibus or on the London underground, would probably find Mustapha’s reaction bizarre and highly unforeseeable. A psychiatrist, working with patients in a clinical setting, would probably find the reaction entirely foreseeable, albeit at an extreme end of the range of possible reactions. Who gives evidence as to what is foreseeable psychiatrically? Well, psychiatrists of course. Unless lawyers use the word “foreseeable” as a term of art, as a legal test, to limit the scope of liability, we will be forced to accept the expert view as to what is “foreseeable”. Ward LJ attempted to do just this in Corr v IBC Vehicles Ltd [2006] EWCA Civ 331, [2007] QB 46 when he said the claimant’s suicide (some six years after an accident in which he sustained significant physical injuries and subsequently developed depression) was unforeseeable, since the legal issue was not whether the kind of damage was “logically foreseeable” but whether it was “reasonably foreseeable”. Ward LJ was using the phrase “reasonably foreseeable” to encompass a policy judgment about whether the defendant ought to have been held responsible for the employee’s death, rather than an assessment of the probabilities of a particular chain of causation. He considered that the self-induced nature of the damage ought to be relevant to that judgment, though acknowledging that his response “may be more visceral than cerebral” (at [61]). [The majority in Corr disagreed, a view upheld by the House of Lords].

Mr. Mustapha clearly had a highly obsessive personality. He was very susceptible to developing the reaction he did, and it could have been almost any event (negligent or otherwise) that tipped him over the edge. In other words, any old bit of straw blowing in the wind could have landed on the camel’s back and broken it. He was what I would call a “psychiatric accident waiting to happen”. Now he may be deserving of our sympathy, and deserving of the best available psychiatric input to help him deal with his problems, but should he be entitled to charge the rest of the community (through the prices we pay for bottled water if the defendants are held responsible) for the fact that he is carrying so much “psychiatric baggage”? The intuitive answer is “no”, and intuitively it is because he was not a person of ordinary fortitude (or in Lord Wright’s more graphic phrase in Bourhill v Young he did not demonstrate the “customary phlegm”). But this is a policy judgment or possibly, in Ward LJ’s phrase, a “visceral” reaction; it is not purely about what we consider to be foreseeable (whether as a possibility, a probability, or any point in between).

Worryingly, perhaps, for the development of Canadian law on this point, is the comment at the end of para. [18]: “There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question”. I would entirely understand why the expert witnesses were not asked how a person of ordinary fortitude would have reacted. This is a legal, not a medical, construct and the expert witnesses would probably wonder what on earth they were supposed to be commenting on. But if it comes to be the practice to ask the expert witnesses (i.e. the psychiatrists) how a person of ordinary fortitude would have reacted to the events that “caused” the plaintiff’s condition, then we will be handing that test over to the psychiatric profession too. If the psychiatrists respond, yes a person of ordinary fortitude (whatever that means) could have reacted in such a way, then there will be no scope for a court to conclude that the reaction was unforeseeable. Psychiatrists (in my limited experience) seem to think that almost any reaction was foreseeable, certainly as a “possibility”. There is an old Yorkshire saying: “There’s now’t so strange as folk”, and the psychiatric profession tends to see those at the stranger end of the spectrum. Their "take" on the world is probably just as skewed as that of lawyers.

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