Date: Tue, 27 May 2008 17:30

From: Lewis Klar

Subject: The refreshing SCC

These comments all point out the obvious: the issue is of course much more complicated and nuanced than the SCC judgment implies. Ultimately therefore the SCC judgment although of importance to the litigants adds very little to our understanding of the issues. I am sympathetic with the comment that the case should never have gone as far as it did, and the SCC was really just trying to dispense with it, although they could have done that by simply refusing leave.

In terms of duty, breach, factual cause and proximate cause, I think the facts are interesting.

One could argue that since Mr M was a possible victim only with respect to only one type of injury that the concepts of duty and proximate cause merge. In other words, Mr M, if a foreseeable victim (duty) at all, was only a foreseeable victim because of one type of injury - injury stemming from seeing a dead fly. If one cannot foresee someone being injured (however you characterize the injury) by merely seeing a dead fly, than the plaintiff is an unforeseeable victim (no duty) or the injury is an unforeseeable injury (too remote). Take your pick.

In terms of breach, if one accepts the Wagon Mound No 2 reasoning, that in determining reasonable foreseeability for remoteness purposes, one considers probability of injury, costs of avoidance and severity (i.e. Learned Hand), then one eliminates the issue of remoteness and deals with everything under breach. Once one determines that the defendant was negligent, one also resolves the issue of remoteness, if this approach is followed.

In terms of factual cause, the comment concerning linking psychiatric injury to any specific event (I think Michael Jones' point) was especially useful for me. It of course was not a feature of Mustapha - but maybe should have been. The same goes for crumbling skull analysis.

In terms of proximate cause, I do not think that "reasonable" adequately qualifies "foreseeable", since we still do not know what reasonable means. It was the major point of the C of A judgment and it was something I hoped would have been clarified by the SCC.

So ... at the end of the day, my section on nervous shock in my text does not get much of a boost from Mustapha. Good thing, as the manuscript is presently with the publisher.

Lewis

>>> Jason Neyers 5/27/2008 9:00 AM >>>

It's probably just me but I just don't understand the English breach of duty way of formulating a claim in negligence. Culligan did breach the standard of care, they created a real risk of injury by allowing contaminants in the bottle marketed as fit for human consumption. It seems to me that they did owe Mustapha a duty at least for personal injury since if he had gotten sick after drinking the water (having not noticed the fly) they would have been liable to him. But the damage he actually suffered was too remote, it was not the type of damage that was reasonably foreseeable. Or one could say that they did not owe him a duty for that type of damage. 6 of one ½ dozen of another. Isn't that the bog standard analysis given in the Wagon Mound 1?

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