The Test for Negligence. Mustapha v. Culligan of Canada Ltd.
In Mustapha v. Culligan of Canada Ltd. (SCC, 2008) the Supreme Court of Canada sets out a simple, almost pedagogical, negligence case. I repeat it in it's entirety as it is so refreshing:
 The Chief Justice — The plaintiff, Mr. Mustapha, sues for psychiatric injury sustained as a result of seeing the dead flies in a bottle of water supplied by the defendant, Culligan. In the course of replacing an empty bottle of drinking water with a full one, Mr. Mustapha saw a dead fly and part of another dead fly in the unopened replacement bottle. He became obsessed with the event and its “revolting implications” for the health of his family, which had been consuming water supplied by Culligan for the previous 15 years. The plaintiff developed a major depressive disorder with associated phobia and anxiety. He sued Culligan for damages. . Shantry v Warbeck
 The trial judge found that seeing the flies in the water resulted in psychiatric injuries to Mr. Mustapha, and awarded him $80,000 in general damages, $24,174.58 in special damages, and $237,600 in damages for loss of business ((2005), 32 C.C.L.T. (3d) 123). The Ontario 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 ((2006), 2006 CanLII 41807 (ON CA), 84 O.R. (3d) 457). The issue before this Court is whether the cause of action has been established. For different reasons than the Court of Appeal, I conclude that it has not.
 A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. I shall examine each of these elements of negligence in turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to establish that his damage was caused in law by the defendant’s negligence. In other words, his damage is too remote to allow recovery.
1. Did the Defendant Owe the Plaintiff a Duty of Care?
 The first question to consider in an action for negligence is whether the defendant owed the plaintiff a duty of care. The question focuses on the relationship between the parties. It asks whether this relationship is so close that the one may reasonably be said to owe the other a duty to take care not to injure the other: Donoghue v. Stevenson,  A.C. 562 (H.L.). Whether such a relationship exists depends on foreseeability, moderated by policy concerns: Anns v. Merton London Borough Council,  A.C. 728 (H.L.).
 In many cases, the relationship between the plaintiff and the defendant is of a type which has already been judicially recognized as giving rise to a duty of care. In such cases, precedent determines the question of duty of care and it is unnecessary to undertake a full-fledged duty of care analysis. As stated by A. M. Linden and B. Feldthusen, categories of relationships that have been recognized and relationships analogous to such pre-established categories need not be tested by the Anns formula: Canadian Tort Law (8th ed. 2006), at p. 302; Cooper v. Hobart,  3 S.C.R. 537, 2001 SCC 79 (CanLII), at paras. 35-36.
 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.
2. Did the Defendant’s Behaviour Breach the Standard of Care?
 The second question in a negligence action is whether the defendant’s behaviour breached the standard of care. A defendant’s conduct is negligent if it creates an unreasonable risk of harm (Linden and Feldthusen, at p. 130). The trial judge found that the defendant Culligan breached the standard of care by providing the plaintiff with contaminated water, and the parties did not appeal that finding before this Court. This is hardly surprising; it is clear that a supplier of bottled water intended for personal consumption is under a duty to take reasonable care to ensure that the water is not contaminated by foreign elements. The second element of liability in tort for negligence is therefore met.
3. Did the Plaintiff Sustain Damage?
 Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. The distinction between physical and mental injury is elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page v. Smith,  1 A.C. 155 (H.L.), at p. 188:
In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law. [Emphasis added.] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry,  2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.
 On the findings of the trial judge, supported by medical evidence, Mr. Mustapha developed a major depressive disorder with associated phobia and anxiety. This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law. It follows that Mr. Mustapha has established that he sustained damage.
4. Was the Plaintiff’s Damage Caused by the Defendant’s Breach?
 The fourth and final question to address in a negligence claim is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. The evidence before the trial judge establishes that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury. We are not asked to revisit this conclusion. The remaining question is whether that breach also caused the plaintiff’s damage in law or whether it is too remote to warrant recovery.
 The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co.,  A.C. 388 (P.C.), at p. 424).
 Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty.,  A.C. 617 (P.C.), at p. 643).
 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. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police,  3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599 (CanLII); Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”
 As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317,  HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.
 To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damage, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damage at law.
 I add this. In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant. In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha’s particular sensibilities.
 It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must 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. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” (C.A. judgment, at para. 52). 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. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr. Mustapha’s “previous history” and “particular circumstances” (para. 227), including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.
5. The Claim in Contract
 The plaintiff also brought a claim for damages arising out of breach of contract, although he appears not to have pursued it with vigour. This claim fails. With regards to Mr. Mustapha’s psychiatric injury, there is no inconsistency in principle or in outcome between negligence law and contract law. Damages arising out of breach of contract are governed by the expectation of the parties at the time the contract was made (Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145, at p. 151, applied with respect to mental distress in Fidler v. Sun Life Assurance Co. of Canada,  2 S.C.R. 3, 2006 SCC 30 (CanLII)), as distinguished from the time of the tort, in the case of tort. I have concluded that personal injury to Mr. Mustapha was not reasonably foreseeable by the defendant at the time of the alleged tort. The same evidence suggests that Mr. Mustapha’s damage could not be reasonably supposed to have been within the contemplation of the parties when they entered into their agreement.
 For the reasons discussed, I conclude that the loss suffered by the plaintiff, Mr. Mustapha, was too remote to be reasonably foreseen and that consequently, he cannot recover damages from the defendant. I would dismiss the appeal with costs. In light of these findings, I find it unnecessary to deal with the cross-appeal, and dismiss it without costs.
In Shantry v Warbeck (Ont CA, 2015) the Court of Appeal states as follows re the sequence of the elements in the test for negligence:
 That the trial judge addressed causation after the standard of care is not an error. The Supreme Court has established that there are requirements that must be met to establish negligence. The requirements are sequential and separate. The plaintiff must demonstrate that:. Castrillo v. Workplace Safety and Insurance Board
1. the defendant owed a duty of care;
2. the defendant’s behaviour breached the standard of care;
3. the plaintiff sustained damage; and
4. the damage was caused, in fact and in law, by the defendant’s breach.
(See: Cleveland v. Whelan, 2011 ONCA 244 (CanLII), 277 O.A.C. 178, at paras. 32-33, citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII),  2 S.C.R. 114, at para. 3).
In Castrillo v. Workplace Safety and Insurance Board (Ont CA, 2017) the Court of Appeal succinctly states the elements of negligence:
 In order to establish a duty of care in negligence, three elements are necessary: (1) The harm complained of must have been reasonably foreseeable; (2) There must have been sufficient proximity between the plaintiff and the defendant that it would be fair and just to impose a duty of care; and (3) There must be no residual policy reasons for declining to impose such a duty: Williams v. Toronto (City), 2016 ONCA 666 (CanLII), 402 D.L.R. (4th) 678; Cooper v. Hobart, 2001 SCC 79 (CanLII),  3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII),  3 S.C.R. 562; Childs v. Desormeaux, 2006 SCC 18 (CanLII),  1 S.C.R. 643; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII),  3 S.C.R. 83; see also Anns v. Merton London Borough Council,  A.C. 728 (H.L.); and Kamloops (City of) v. Nielsen, 1984 CanLII 21 (SCC),  2 S.C.R. 2. . Walters v Ontario
In Walters v Ontario (Ont CA, 2017), an interesting jail liability case, where the province was sued for injuries resulting when members of two opposing gangs were placed in the same unit, the court commented usefully on the appellate standards of review applicable to the separate elements of negligence:
 At the outset I can advise that I would dismiss Ontario’s appeal. The issues on appeal are three basic elements of a negligence action: duty of care; breach of the standard of care; and causation of damage. The first issue, the determination of a duty of care, is a question of law. Appellate courts review such determinations for their correctness: Ryan v. Victoria (City), 1999 CanLII 706 (SCC),  1 S.C.R. 201, at para. 21; Housen v. Nikolaisen, 2002 SCC 33 (CanLII),  2 S.C.R. 235, at para. 8. The second issue, application of the relevant standard of care, and the third issue, causation of damage, are questions of mixed law and fact. On those matters, this court must not interfere with the trial judge’s findings absent any “palpable and overriding error” or error concerning an “extricable question of law”: Housen, at paras. 29-37, 70, 159.