From: Hilary Young <hilaryanyoung@yahoo.ca>
To: Obligations list <obligations@uwo.ca>
Thrasher Colleen <colleen.thrasher@cas-satj.gc.ca>
Date: 18/02/2021 12:59:49
Subject: Re: Did Mustapha v. Culligan fundamentally change the "thin skull" principle?
Dear Obligations list members,

I post this on behalf of my brilliant former student Colleen Thrasher, who writes:

Background to my comment: in my third year of law school I attempted to read every negligence case citing Mustapha to determine whether the injuries claimed were psychological, physical or both. The questions I approached in my research were 1) whether ordinary fortitude was ever applied in the context of physical injury; 2) does ordinary fortitude bring something specific to the negligence analysis in cases involving psychological injury (and if so, what); and 3) if ordinary fortitude is particularly relevant to psychological injury, does it a) undermine the SCC’s narrative that the divide between physical and psychological injury is artificial and/or b) marginalize plaintiffs with psychological injury who are subjected to a unique test.  My conclusions (briefly) were that the majority of cases applying ordinary fortitude involved psychological injury. And, when applying the concept of ordinary fortitude, there was a tendency on the part of counsel and judges at trial level to ask/argue the question, “Is this plaintiff a person of ordinary fortitude?”. My view is that this question is altogether different from the actual test for remoteness. Further, in the context of psychological injury, it sets the plaintiff up for an unfortunate probing inquiry into their history of mental illness and/or trauma rather than focusing on the actual question of legal causation stemming from the standard of care breach.

 

I’m in agreement that Mustapha does not change the “thin-skull” doctrine. The principle that a tortfeasor has to take their victim as they are only applies once remoteness is made out – that is, where the injury was already foreseeable in a general way. Then, the extent of the injury is covered by damages. However, my understanding of Mustapha is that the SCC intended to articulate and apply the test for remoteness for both psychological and physical injuries, in a fact pattern involving psychological injury. The test for remoteness is whether the injury that occurred was a “real risk” of the defendant’s breach, where a “real risk” is one which could occur to the mind of a reasonable man in the position of the defendant and which he would not brush aside as far fetched.  According to former Chief Justice McLachlin, the question of what a person of ordinary fortitude would suffer “is inherent in the notion of foreseeability”.  That is to say that a defendant can only foresee those injuries that people of ordinary fortitude would reasonably suffer. Since it is inherent in the concept of foreseeability, I suppose it could be applied to physical injury as well. Indeed, at para 94 of Greenway-Brown, the BCCA rephrases the conclusion in terms of ordinary fortitude: a person of ordinary fortitude may reasonably incur soft-tissue injuries and associated chronic pain / psychological distress after minor car accidents. However, my particular view is that there is no need to rephrase it because there is no advantage (and there is disadvantage) to using the language of ordinary fortitude.

 

Happy to chat about this more with anyone who is interested and wants my contact info.

 

Colleen Thrasher

Auxiliaire juridique auprès de l’honorable juge en chef adjointe Jocelyne Gagné /

Law Clerk to the Honourable Associate Chief Justice Jocelyne Gagné

Cour fédérale / Federal Court

1182-16 90 rue Sparks / 1182-16 90 Sparks Street

Ottawa, Ontario K1A 0H9

Téléphone / telephone: (343) 551-2535

Courriel / e-mail: colleen.thrasher@cas-satj.gc.ca

OTTLC897



On Wednesday, February 17, 2021, 07:13:26 p.m. AST, Martin Olszynski <molszyns@ucalgary.ca> wrote:


Thank you very much for your thoughtful responses (both to the group but also some directly to me).

I dived back into Mustapha (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/4637/index.do). I think the best interpretation is indeed that the "ordinary fortitude" test applies to personal injuries generally (physical and mental), but that this inevitably plays out differently in mental injury cases, for reasons that Bruce and others have noted. Indeed, the Court acknowledged as much in Mustapha (underlining mine):

[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities.  This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors.

Jason's and Ben's points are also useful reminders that there is an inherent artificiality to the way we break down the negligence action into its constituent parts, with foreseeability playing its underlying and overlapping role at several stages (for us in Canada, duty, standard, and remoteness).

Thank you all again -- I am looking forward to taking this discussion back to my students!

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


From: Benjamin Zipursky <bzipursky@law.fordham.edu>
Sent: February 17, 2021 3:42 PM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: Bruce Pardy <pardyb@queensu.ca>; Martin Olszynski <molszyns@ucalgary.ca>; Obligations list <obligations@uwo.ca>
Subject: Re: Did Mustapha v. Culligan fundamentally change the "thin skull" principle?
 
[△EXTERNAL]


I am inclined to think that, in Mustapha, the term "remoteness" -- which I gather plays a larger role in Canadian and UK cases than in American cases in denoting a proximate-cause-like requirement -- is not especially illuminating and is a bit distracting, and makes one worry that the sense of "foreseeability" in question is perhaps quite closely related to the sense of "unforeseeability" that tort law is content to accommodate in eggshell skull cases.  In this sense, it (implicitly) magnifies rather than minimizing the difficulties of squaring a foreseeability conception of proximate cause from Wagon Mound with the eggshell skull rule.

Mustapha can be read as a case applying a risk rule conception of proximate cause and utilizing a conception of foreseeability that implicitly engages with the risk rule.   Moreover, if we understand the risk rule conception of proximate cause as requiring a certain kind of connection between breach and injury (the breach must be the careless generation of a risk of injuries of roughly the type that occurred), then foreseeability of injury ends up putting a constraint on the kind of breach that would be suitable for a well-formed negligence claim.   Because defendant conduct might in one sense qualify as the breach of a duty of care owed to the plaintiff, but nonetheless fails to satisfy the constraint just mentioned, it is useful to have another term to use to refer to the requirement that this constraint be satisfied.   "Proximate cause" often functions as that term, in my view, and I think it does so in Mustapha.  It is an advantage of this view that it is entirely consonant with the practice (and law) of utilizing the question of whether the harm that forms the predicate injury of the plaintiff's claim was "foreseeable," while at the same time denying the equivalence of the question: "was there a breach?" with the question "is proximate cause satisfied?"

Sorry for the turgidity.  Glad if you made it through.
Best,
Ben Zipursky







On Wed, Feb 17, 2021 at 3:05 PM Jason W Neyers <jneyers@uwo.ca> wrote:

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

 

pardyb@queensu.ca

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