Comments on: Follow-up: SCC tosses “dead fly” appeal

By: Thinking Out Loud: In which I try to argue tort law

Thinking Out Loud: In which I try to argue tort law — Sun, 22 Jun 2008 18:14:28 +0000

[...] Law Is Cool: Follow-up: SCC tosses “dead fly” appeal [...]

By: Omar Ha-Redeye

Omar Ha-Redeye — Fri, 23 May 2008 00:58:09 +0000

I was speaking with Anthony Giannotti, counsel for the Plaintiff, 5 min. after the verdict came out today in Toronto. He has an interesting story aside from the court report. He's agreed to do an interview - we should have a podcast up shortly. Also, see the Alberta Law Review's forum on this topic.

By: Lawrence Gridin

Lawrence Gridin — Thu, 22 May 2008 20:04:44 +0000

Sarah: I noticed that too.

Here’s the thing though, if I recall correctly, Mr. Mustapha’s fairly obvious OCD was never argued/claimed in any of the cases. The courts just say he has “objectively bizarre” beliefs and whatnot.

The depression he suffered subsequent to seeing the fly was separate from any underlying OCD he might have had. I think it would be necessary for the plaintiff’s psychiatric expert witness to claim that (1) Mr. Mustapha suffers from diagnosed OCD; and (2) his subsequent diagnosed depression/anxiety/phobia grew directly out of that OCD.

Unfortunately, it does not seem that that was pleaded, so the thin skull principle was left with little application. There is some discussion of it at the trial level, if you’re interested.

p.s. I can’t believe I’m arguing law on a lovely Summer afternoon :) What have I become?!

By: Sarah Boyd

Sarah Boyd — Thu, 22 May 2008 18:49:37 +0000

I still think this analysis suffers GREATLY from a lack of discussion of the thin-skull rule, and here’s why: if the complainant was regular dude who reacted this way, then okay, unreasonable. But from what I can glean from the decision, he showed more than a few signs of OCD. His obsession with cleanliness was not only potentially pathological, but it was the vary trait to which Culligan marketed! Hence pre-existing condition, hence thin-skull application. I’m not saying it would have been successful, mind you, just that I’m disappointed it wasn’t argued.

Of course, the SCC seems to have been constrained by the lack of discussion in the lower courts, which implies to me that the issue wasn’t plead. Que sera, sera.