“Dead fly in water bottle” case to be decided by Supreme Court tomorrow

One of the more interesting cases from first year Contracts/Torts class concerned a man, Mustapha, who sued Culligan Water after discovering a dead fly in one of its 5-gallon bottles. The facts of the case are sort of like Canada’s version of Donaghue v. Stevenson, [1932] A.C. 562 (HL).

Dead fly in water

According to the trial decision, (Mustapha v. Culligan of Canada Ltd., 2005 CanLII 11990 (ON S.C.)), Mr. Mustapha kept what can only be described as a meticulously sanitized house. Both he and his wife were obsessive about cleanliness. He purchased water from Culligan relying on the promise that it was cleaner and healthier than regular water.

When Mr. Mustapha’s wife was opening a new bottle and placing it in the dispenser, she noticed something dark floating in it. Upon closer inspection, she discovered to her horror that it was a dead fly. She immediately vomited. Mr. Mustapha also vomited. This went on for some time.

Mustapha developed a psychiatric illness in response to seeing the fly, and he suffered for months. He would have nightmares involving dead flies. He could not sleep for more than four hours per night. He could not drink water, and he needed therapy before he could take a proper shower. He even lost interest in sex.

Finally, Mr. Mustapha sued.

Despite the trial court’s characterization of Mr. Mustapha’s reaction as “objectively bizarre” (at para 180), he was awarded $342,000 in damages.

Culligan appealed (2006 CanLII 41807), and the Court of Appeal for Ontario reversed the trial decision.

As Blair J.A. explained, the extent of Mr. Mustapha’s psychological trauma was completely out of proportion and therefore could not have been reasonably foreseen by the defendant company (at para. 20):

“The issue of tort law raised on this appeal is whether a defendant may be liable for damages for psychiatric harm where the harm, by any objective measurement, consists of an exaggerated reaction by an obsessive person of particular sensibilities to what, in reality, is a relatively minor or trivial incident – the sight of a dead fly in a bottle of consumer water. In my view, the answer to this question is no.”

The test for tort liability set out in Mustapha was summarized at para. 49:

“Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care – and, therefore, for liability – in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant�s careless conduct. That is what reasonable foreseeability means.”

The Court of Appeal overturned Mr. Mustapha’s damage award and ordered him to pay $30,000 in costs to Culligan.

Mustapha then appealed up the chain.

The Supreme Court granted leave in June of last year. It is expected to deliver its judgment tomorrow. This should be interesting.

About the Author

Lawrence Gridin
Lawrence Gridin is currently a law student at the University of Western Ontario, graduating in the class of 2010. He completed his Bachelor of Science at the University of Toronto, majoring in Psychology and History. Lawrence volunteers at Western's Community Legal Services and has participated in the clinic's outreach program. His diverse interests include social justice, 20th century history, photography, boxing, and politics.

5 Comments on "“Dead fly in water bottle” case to be decided by Supreme Court tomorrow"

  1. Wait a tick, doesn’t fly in the face of the thin-skull rule? Either Mr. Mustapha was reasonable in his reaction, and the basic nervous shock doctrine applies, or he was unreasonable due to a pre-existing “obsessive” personality. The tortfeasor must take the victim as he finds him.

    I’m looking at Vorvis v. Insurance Corporation of British Columbia ([1989] 1 S.C.R. 1085) for this. Once some harm was foreseeable, the company should be liable for the whole thing.

    I thing some harm is foreseeable from dead bugs in your water. Given that Culligan recruited Mr. Mustapha on the basis of the cleanliness of their water (“a representative of Culligan called on him and represented to him at length how pure and healthy Culligan water was, including how it would benefit pregnant women and children, and how much better it was for someone than city water.”) and that he had a contract with them for fifteen years … it just seems pretty reasonably foreseeable to me. But it’s not mentioned anywhere in any of the cases.

    I hope the SCC will deal with it, since it’s implicated enough that it should be included in their discussion, and since it’d be nice to have some juicy POST-1980s case law on the subject. (crossposted)

  2. a representative of Culligan called on him and represented to him at length how pure and healthy Culligan water was, including how it would benefit pregnant women and children, and how much better it was for someone than city water.

    Mr. Mustapha might have had better luck had he alleged misrepresentation. Those are some pretty tall claims! :)

    Sarah: Let’s see what the SCC says this morning.

  3. A few months back, I went to purchase my usual 18.5 L water bottle, however I always inspect the bottle and contents before purchase. This time I noticed a big gob of gum on the inside of the water bottle. I showed my mum and she was repulsed. I went on to show a store employee and she was going to tell the manager. I no longer purchase that brand. I am still sickened by even the thought of consuming that water. I continue to be even more cautious and carefully inspect all my purchases, making sure the packaging has not been compromised, the date has not expired, the top has not been popped or the inside seal has not been breached. I do all this before I make my purchase. I also go on line about once a week to check food recalls.

  4. Hi Angela,
    Here are some pertinent points from Donahue v. Stevenson:

    ” I draw particular attention to the fact that Lord Esher emphasizes the necessity of goods having to be “used immediately” and “used at once before a reasonable opportunity of inspection.” This is obviously to exclude the possibility of goods having their condition altered by lapse of time, and to call attention to the proximate relationship, which may be too remote where inspection even of the person using, certainly of an intermediate person, may reasonably be interposed….

    A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently, in the course of preparation, he allows the contents to be mixed with poison.

    However, Lord Buckmaster stated:

    The principle contended for must be this: that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle; such contractual rights as may exist in successive steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrine applicable to sale and purchase.

    It is virtually impossible to inspect every single item of purchase thoroughly, and as the case states this should not be the defining characteristic.

    The best thing I like about this is the potential conspiracy theory – lawyers were behind it all, just to make money – and there never was a Mrs. Donahue.

  5. Sarah:
    Please see http://lawiscool.com/2008/05/22/follow-up-scc-tosses-dead-fly-appeal/

    As for the thin skull rule generally, I think that there has to be a pre-existing condition for it to apply. I think that’s what I was able to glean from suicide cases in which the widow(er) sues.

    So, for example, if Mr. Mustapha suffered from major depression before the fly incident, and the fly pushed him over the edge, he might have been able to recover. But in this case, the evidence we have is that Mr. Mustapha developed his psychiatric illness after seeing the fly.

    Anyway that’s my understanding of thin skull. I could very likely be wrong. :)

    The Court didn’t really deal with the thin skull issue. They did, however, say that if Culligan knew about Mr. Mustapha’s peculiar vulnerability to freaking out over contaminated water, he might have been able to recover.

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