Mustapha: The SCC Gets the Final Swat

On June 21, 2007, the SCC granted an application for leave to appeal in the case of Mustapha v. Culligan of Canada Ltd., 84 OR (3d) 457. This tort law case examines foreseeability of psychiatric harm in a peculiar factual context.

Mr. Mustapha, the plaintiff, immigrated to Canada from Lebanon in 1976 and operated two successful hair styling businesses. At the time of the incident in question, he lived with his pregnant wife and young child and maintained a spotless home. After being visited by a Culligan water distribution representative and learning of the benefits of bottled water, including purity, especially with respect to pregnant women and children, Mustapha installed Culligan dispensers in his salon and home and began using Culligan bottled water exclusively.

In November of 2001, Mustapha routinely replaced the bottle in the home dispenser and noticed a dead fly and half of another dead fly in the unopened bottle. Immediately afterwards, Mrs. Mustapha began to vomit and later complained of cramps and pain. Shortly after, Mr. Mustapha vomited and also complained of nausea and abdominal pain. Both Mr. and Mrs. Mustapha sought recovery for psychological damages from Culligan stemming from their discovery of the dead flies in the unopened bottle, although neither actually drank from the bottle.

At trial, Mrs. Mustapha’s claim was dismissed as the judge found that her reaction did not amount to nervous shock or psychiatric illness sufficient to succeed in a negligence claim. Mr. Mustapha, however, was found to suffer from a “recognizable psychological injury” resulting from the incident. Following the discovery, Mr. Mustapha was unable to get the image of the fly in the bottle out of his mind and became obsessed with the belief that his and his family’s health had been compromised by the impure water. He imagined flies contaminated with rotten food and animal feces being in his “pure” water and suffered from nightmares and sleep deprivation. He lost his sense of humour, becoming argumentative and moody, and suffered from constipation and an inability to perform sexually. As a result of the change in his personality as well as deteriorating hairstyling skills, Mr. Mustapha lost business clients. No longer able to enjoy long showers, Mr. Mustapha was only able to take short showers where the water did not come in contact with his face. Finally, he complained of constant unexplained abdominal pains, as well as feelings of grogginess stemming from a variety of medications.

According to expert medical testimony at trial, Mr. Mustapha developed “nervous shock,” which is associated with phobia and anxiety. The trial judge concluded that the psychiatric effect of the incident involving the fly-in-the-bottle was a result of Mr. Mustapha’s specific predisposed sensitivities, namely his Middle Eastern culture, where the concern for family is higher than the level found in North America, and the high level of cleanliness maintained by the family in their home. At trial, the judge found that the possibility of psychological damage occurring as a result of such contamination was foreseeable in the circumstances and awarded Mustapha psychiatric damages in the amount of $341,775.

At the Court of Appeal, the judge allowed Culligan’s appeal and set aside the judgment in favour of Mustapha, finding Culligan not liable for Mustapha’s harm. The judge discussed the “primary” vs. “secondary” victim categories, as adopted in British common law. The premise is that in cases where a primary victim seeks to recover, they must only establish reasonable foreseeability of physical injury, not psychiatric injury. This primary victim is one who is either “mediately or immediately” involved as a participant. In cases where the victim is a secondary victim, a bystander or “passive and unwilling witness of injury caused to others”, the victim must show that some form of psychiatric illness in a person of normal fortitude was reasonably foreseeable in order to recover. The plaintiff here argues that because he is a “primary” participant directly involved in the incident, he should not have to prove reasonable foreseeability of psychiatric harm; rather, only that it is only necessary to display that it is reasonably foreseeable that a consumer of Culligan water will be injured in some fashion if supplied water is contaminated.

The judge applied the test for the existence of a duty of care in cases of psychiatric harm discussed in Vanek v. Great Atlantic & Pacific Co. of Canada, 1999 CanLII 2863 (ON CA), to this scenario, that being if 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”. This test does not distinguish between a “primary” or “secondary” victim and imposes a standard that the person of comparison must be of “normal fortitude or sensibility”. Mr. Mustapha’s reaction to the dead fly was clearly “abnormal” and stemmed from his previous history and cultural sensitivities. The Court of Appeal found that the trial judge erred in completely focusing on Mustapha’s individual characteristics, rather than considering the objective component of the test for reasonable foreseeability. The appellate court also found that the trial judge erred by considering if there was a foreseeable “possibility” of damage, rather than a foreseeable “probability” of damage.

The Court of Appeal also dismissed Mustapha’s breach of contract claim as the case was not presented to the trial judge as a contract case and the contract was absent from the record. Further, in order for a contract claim to be successful, the harm suffered must be the probable result of the breach and the type of injury that would arise “generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.” Here, Mustapha’s extreme reaction and psychiatric harm flowing from the incident was not the “probable result” of Culligan’s breach and there is no evidence that Culligan was ever made aware of Mustapha’s special circumstances.

The unusual circumstances in this case and the potential for the evolution of the law dealing with the foreseeability of psychiatric harm promise that this appeal will make for interesting and enlightening reading. Will Mustapha be able to swat the ever-so-troublesome fly that has been a constant source of distress in his life? Stay tuned!

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