Does the primary/secondary victim distinction apply to mental injury?

This Court has not, however, adopted either the primary/secondary victim distinction, or McLoughlin v. O’Brian’s disaggregated proximity analysis. Rather, in Mustapha, recoverability of mental injury was viewed (at para. 3) as depending upon the claimant satisfying the criteria applicable to any successful action in negligence — that is, upon the claimant proving a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Each of these elements can pose a significant hurdle: not all claimants alleging mental injury will be in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct resulting in mental harm will breach the standard of care; not all mental disturbances will amount to true “damage” qualifiying as mental injury, which is “serious and prolonged” and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury (Mustapha, at para. 9); and not all mental injury is caused, in fact or in law, by the defendant’s negligent conduct.