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.

” 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.

Lawrence:
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.

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.

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)