RSS Feed“Dead fly in water bottle” case to be decided by Supreme Court tomorrow
One of the more amusing 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).
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 ridiculously 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 apparently 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.
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