After a long hiatus, Legally Brown’s resident torts junkie is back at it again. The topic of discussion for this post is Mustapha v Culligan (2008). While this case is on the older side, it’s one hell of a precedent. What are the facts? Mr. Mustapha purchased a bottle of drinking water (the kind that you can use for at-home water dispensers but will probably take your back out lifting it) from Culligan. Unbeknownst to Mr. Mustapha, this bottle had dead mosquitos floating around in it (or more accurately, one mosquito and half of another). Unlike the average person who may have gone back to the store demanding a refund, Mr. Mustapha went to court asking for $341,775. While it may seem ridiculous that something as simple as this, which could be taken care of through a customer complaint line or a nasty Google Review, to be taken to court, this was not a “frivolous” matter to Mr. Mustapha. While Mr. Mustapha did not consume the water, the sight of the mosquitos triggered a whole host of psychiatric issues including major depression, anxiety, specific phobias and obsessional thoughts. Oh, and the most quoted side effect - the negative impact on his sex life. The media has sensationalized this case however, as unusual as this case is, it is important to remember that the incident had a very real impact on Mr. Mustapha. While Mr. Mustapha was successful in achieving damages at the court of first instance, he was unable to achieve the same results on appeal. Culligan appealed to the Ontario Court of Appeal where the court found in their favour. The court noted two flaws in the judgment of the trial judge - his failure to incorporate an objective component to the duty of care and opting for the standard of possibility rather than reasonable foreseeability. This case eventually travelled to the Supreme Court where in a 9-0 decision, Mr. Mustapha lost the appeal. To briefly put on my constitutional scholar hat, the unanimous decision speaks volumes. The court is unified on the stance that “the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.” The debate about the prevalence of tort law’s distinction between psychiatric injury and mental injury is invoked in Mustapha. Some argue that despite the Supreme Court’s statement that “the distinction between physical and mental injury is elusive and arguably artificial in the context of tort,” they adhered to the distinction by failing to apply the but-for test. Whereas the but-for test is generally respected vis-a-vis physical injury where the plaintiff can claim damages if they are able to demonstrate that their pre-existing disposition (thin skull) to a certain injury would not have materialized had it not been for the defendant’s negligence, cases like Mustapha show that the rule is not readily transferred in the realm of psychiatric injury. From my understanding, Mr. Mustapha failed to establish a duty of care, not causation. The Supreme Court held that there was no reasonable foreseeability that an ordinary person would suffer the psychiatric damage that Mr. Mustapha did. There was no question about causation - the Supreme Court acknowledged that Culligan’s negligence did in fact cause the damage to Mr. Mustapha. Perhaps it’s an overly artificial distinction but from my amateur understanding of tort law, there is a structure to a negligence claim that must be satisfied to achieve damages. The structure is as follows: an act by the defendant, duty of care, carelessness, causation, remoteness and harm. The issue examined in detail in Mustapha concerns duty of care, not causation. Duty of care and remoteness pertain to legal causation rather than the strict factual causation that is informed by the but-for test. In no way do I intend to detract from arguments that claim that the tort law regime differentiates between psychiatric and physical injury through this post. I do believe there is a real double standard when it comes to litigating psychiatric injury. I just don’t think Mustapha is the right case to hang these arguments on. By: Veena Ganesarasa
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We would like to thank our healthcare workers who have worked tirelessly to test, diagnose, and care for patients during this pandemic. This pandemic shaped the way our society looks, interacts and operates. While many are staying home, healthcare workers are risking their own safety for our wellbeing. But what about those individuals who choose not to abide by the rules of social distancing, wearing masks or isolating when returning from travel? The issue that arises is whether doctors have the right to refuse treatment to COVID patients that have been contributorily negligent. That is, patients who have voluntarily failed to follow public health guidelines. There are individuals who don’t believe that the pandemic is even real, whether it be because of the conspiracy theories, the lack of physical symptoms unlike the bubonic plague or the privilege of not knowing anyone who is battling with the disease. Some of these individuals engage in self-destructive habits. It can be seen through protests on the TTC where individuals have proclaimed they do not want their body to be regulated by the state and that masks hinders their freedom of expression. I ask these same individuals who went to school here, dress codes were also enforced – where was this energy when children weren’t allowed to wear spaghetti straps to class? Another example is Bill 21 in Quebec, banning religious symbols such as the hijab, niqab and turbans. The freedom of expression argument is an interesting take, is it more important than the right to life, liberty and security of the person? Wearing a mask has a utilitarian purpose, protecting individuals from spreading the virus to one another. If healthcare workers can wear it for hours a day, we can wear them for limited time periods, when leaving our homes to run errands or going to work. The way COVID-19 impacts individuals differ greatly based on their immunity levels. While some can overcome it without knowing they even had it, others require ventilators to breathe and have reduced lung capacity once treated. Since there is no one cure fits all approach, the spectrum of treatment varies in costs, treatment time and resources. Labour boards across Canada have outlined a four step test to justify refusal to work because of unsafe or dangerous conditions:
However, the situation is different for healthcare professionals given the nature of their work. Doctors have a mandate to help the ill. Healthcare professionals cannot dictate how patients live their lives, nor can they withhold treatment based on the disparity in standards of morality. Physicians are not in the position to determine when self-destructive behaviours warrant treatment. If this were the case, healthcare professionals could refuse cases related to smoking, eating disorders or sports injuries since it could be argued that is “self-destructive” behaviour. Doctors are expected to provide equal treatment for all, without their biased judgment and projected complications. The difference between those cases, and COVID-19 is the risk of contracting the virus. Healthcare professionals are putting themselves, their families and others in close proximity at a heightened risk of infection because it is unknown how this disease is spread. Regardless, the code of ethics highlights that the patients’ welfare be placed above their own self-interest. How can it be monitored if a patient was negligent? Would specific measures need to be in place to assess if they broke by-laws such as congregating with more than 10 individuals? Went shopping without a mask? Should it be that people need to surrender their health card if they break a law to say that they are willing to risk everything, their health included to live a lifestyle that cannot be supported at this moment in time? As a member country for the World Health Organization (“WHO”), Canada is committed to providing healthcare for every human being without distinction of race, religion, political belief, economic or social condition. Therefore, physicians in Canada owe a legal duty of care to patients and there is a limited right to refuse the work based on the four step test identified by the labour board. By: Karen Randhawa
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