I would add that in my view, the ordinary fortitude requirement is built into the standard of care element in physical injury cases (that’s why walking down a hallway carefully is not negligent even
though a person with certain disabilities might be injured by my brushing up against them). It is necessary to examine it again for mental injury otherwise this insight (ie. that there must be a wrong to a person of ordinary fortitude before we get to issues
of thin skull) could be missed in the analysis. This is especially true in bystander cases where the breach of the standard of care would be focussed on the accident that led to the third party being injured rather than on the perceptions of the plaintiff
bystander.
From: Bruce Pardy <pardyb@queensu.ca>
Sent: Wednesday, February 17, 2021 2:53 PM
To: Martin Olszynski <molszyns@ucalgary.ca>; Obligations list <obligations@uwo.ca>
Subject: RE: Did Mustapha v. Culligan fundamentally change the "thin skull" principle?
In my view, the judgment in
Mustapha simply articulates (correctly) how the remoteness principle applies in cases of mental injury. The remoteness inquiry asks if the type of damage was foreseeable, which is usually straightforward in cases of physical injury, since even minor
physical injuries are compensable. But since there is a threshold for compensable mental injuries, asking whether any mental distress is foreseeable would not make sense, since “ordinary annoyances, anxieties and fears” do not constitute damage. Therefore,
for mental injuries, the inquiry must be whether mental distress above the threshold was foreseeable, and thus it makes sense to ask whether a person of ordinary fortitude would suffer such injuries (if not, they are not foreseeable). (Greenway-Brown
seems correct to me in rejecting Mustapha’s relevance to physical injury.) I agree that
Mustapha does not affect the thin-skull rule, which is really about the extent of damages (remedy) rather than whether something qualifies as damage (as an element of the cause of action).
Cheers,
Bruce
________________
Bruce Pardy
Professor
Faculty of Law
Queen’s University
Kingston ON
Canada K7L 3N6
Twitter @PardyBruce
law.queensu.ca/directory/bruce-pardy
View research on my SSRN Author page: http://ssrn.com/author=81936
From: Martin Olszynski <molszyns@ucalgary.ca>
Sent: February 17, 2021 1:30 PM
To: Obligations list <obligations@uwo.ca>
Subject: Did Mustapha v. Culligan fundamentally change the "thin skull" principle?
Dear Colleagues,
When teaching the Supreme Court of Canada's decision in
Mustapha v. Culligan, it was previously my view that the decision did not purport to broadly change the "thin skull" rule, but that it added an additional threshold question of foreseeability in the case of mental injury (would a "person of ordinary
fortitude" suffer such injury). However, some push back from a student and some additional reading of cases (e.g. Greenway-Brown v. MacKenzie, 2019 BCCA 137 (CanLII), <https://canlii.ca/t/hzxbk>)
has undermined this view, while at the same time somewhat reinforcing it. For example, in
Greenway-Brown, the BCCA put it this way:
[93]
It is my view that the judge erred in applying this principle from
Mustapha in the circumstances of this case. While I agree with the respondents that the same duty of care and foreseeability analysis applies to claims in negligence for both mental and physical injury,
Mustapha is concerned with mental injury; more particularly, what mental injury is sufficient to constitute damage (as discussed above), and what mental injury is foreseeable to establish legal causation.
While re-reading
Mustapha does suggest to me that the SCC was indeed speaking broadly (capturing both physical and mental injury), it strikes me that this was a very understated way for modifying a fairly strong and clear precedent, and that the "ordinary fortitude"
standard is potentially a quite significant constraint and bolsters remoteness as a "controlling device" for limiting liability.
Any insights from members of this group who write in this area (e.g. remoteness) would be greatly appreciated.
Best,
Martin Z. Olszynski
Associate Professor, Faculty of Law
University of Calgary, 2500 University Drive NW
Calgary AB, T2N 1N4
Office: MFH 3346
Phone: (403) 220-3816
Email:
molszyns@ucalgary.ca
SSRN:
http://ssrn.com/author=1687308
Twitter: @molszyns