The Ordinary Crowd

Saturday, Mar 14, 2009 2:08 pm
William Barnes

As I’m sure you’re aware, in Mustapha v. Culligan of Canada the plaintiff had a mental breakdown after seeing a fly in bottle of water he had purchased from the defendant. The Supreme Court of Canada overturned a $341,000 judgement in favour of the plaintiff because the damage suffered by Mr. Mustapha was too remote. [Law students, particularly 1Ls, may want to just skip to the next paragraph] Liability for negligence requires that three things be proved: (1) the defendant breached the standard of care, (2) the defendant owed a duty to the particular plaintiff, (3) the injuries of the plaintiff were caused by the defendant’s negligent act. The SCC dealt with the first two issues quickly and moved onto causation. Remoteness provides a limit on causation in law; the defendant is only liable if the type of damage suffered was reasonably foreseeable. Even though the fly in the bottle did cause Mr. Mustapha’s breakdown, it was not “reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury” and the defendant was not held liable for it in law.

The issue I have in mind is the use of the “ordinary person” in this case. The use of the ordinary person makes sense in one-on-one interaction. If I interact with a single person out of 800,000 in this city, the odds of that person being ordinary are quite high. If, however, you are in business and dealing with thousands of the 800,000 people in the city, the odds of running into more eccentric people go up—and if you’re in the bottled water business, the odds are probably even higher (cf. Mr. Monk Goes to Mexico). It would be almost an absolute certainty that one of Culligan’s customers would be a germaphobe likely to suffer extreme mental distress if they got a bottle of water with a fly (or other foreign object).

The ordinary crowd contains a certain percentage of germaphobes, people with nut allergies, vegetarians, and people keeping Kosher or Halal. Yet, the ordinary person is likely none of these. The bigger the group you interact with, the less valid the assumption of the ordinary person becomes. The ordinary person does not have a peanut allergy, but a company that negligently let peanuts get into a normally peanut-free chocolate bar would likely be held liable if it were eaten by someone who did. Perhaps the court might have determined that the extreme germaphobe is so rare that he simply is not foreseeable, but if the extreme germaphobe is merely uncommon then they ought to have foreseen the possibility of harm to someone.