Mustapha v. Culligan of Canada Ltd

This post was originally published on the blog maintained by the Faculty of Law at the University of Alberta, which can be found here. It is reproduced at with permission.

A little over a week ago, the Supreme Court of Canada pronounced in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27.

The facts of the case are notorious. Waddah Mustapha saw a dead fly in an unopened bottle of water supplied by the defendant, Culligan. Neither he nor anyone else consumed any of that water, although all members of his family had consumed the defenadnt’s water for the previous 15 years. Mr. Mustapha became obsessed about what he had seen and about the potential implications for his family’s health from having possibly consumed impure water in the past. He was diagnosed as suffering from a major depressive disorder, with associated phobia and anxiety, all triggered by seeing the dead fly.

Specifically, the trial judge summarized the effects on the plaintiff in these terms:

He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water. The worst thought was that his wife would carefully sterilize a bottle for the health and safety of his baby daughter but then would put into that bottle formula made from Culligan water. …

He could not get the fly in the bottle out of his mind, he had nightmares, he was only sleeping four hours or so a night, he has been unable to drink water since the incident, he has lost his sense of humour and instead became argumentative and edgy, he has been constipated, his bothered by revolting mental images of flies on feces ….

He can’t get up and get off to work in the mornings as he always used to. He has lost clients because of the changes in his personality and modd and also because of the reduction in his previous skills as a hairstylist. He has lost interest in, and ability to perform sexually. He had initial complaints of nausea and present complaints of constant, unexplained abdominal pain or discomfort.

In 2005, Brockenshire J., while finding Mr. Mustapha’s claim to be “objectively bizarre”, awarded him $80,000 in general damages, approximately $25,000 in special damages and $237,600 for past and future economic loss. It was, he held, “clearly foreseeable” that the supply of water with dead flies would cause him and others like him to suffer some degree of nervous shock.

Culligan appealed, successfully, to the Court of Appeal, which defined the issue as “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.” The Court of Appeal answered this question in the negative. Mr. Mustapha sought and obtained leave to appeal to the Supreme Court.

It was to general surprise that the Supreme Court granted leave. There were, however, two possible reasons: (1) to take the opportunity to set out – for the first time at the SCC – the proper approach to be taken to claims arising from nervous shock; and (2) to address a practical, doctrinal problem which arose from the Court of Appeal’s treatment of reasonable foreseeability – and specifically, of its requirement that foreseeability’s threshold be one of probability as opposed to possibility. (I canvass the problems with that on my contribution to the Alberta Law Review’s Online Symposium regarding Mustapha).

The Supreme Court’s reasons are, surprisingly, pithy. This is usually a good thing to see from a court which has made a hash of things (oops, better watch out – Marnie Tunay may not like my using the term “hash”) in other areas of law by careless obiter (for example, in the law of cause-in-fact and in the law of constructive or regulatory takings). And the Court’s reasoning, standing on its own, suits a pithy judgment. Mr. Mustapha’s injury was not reasonably foreseeable. It fails on the question of remoteness.

That makes sense, but it leaves one to wonder why the Court granted leave. There is no comprehensive statement of the law of nervous shock (other than to note that the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort” – the Australian case of Page v. Smith was leaned on heavily here). The Court managed to finesse the question of the applicability of English law which divides “primary victims” from “secondary victims” (the duty of care not being an issue here, since it was a products liability case a-la Donoghue v. Stevenson). And the Court expressly avoided dealing with the probable v. possible issue that arose at the Court of Appeal.

Moreover, the decision itself raises a couple of new questions. How are we to determine between unrecoverable “psychological upset” from recoverable (absent remoteness) “psychological disturbance that rises to the level of personal injury”? The only guidance the court gave was that “[compensable injury] must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if reluctantly, accept.” Between a “serious and prolonged” injury and an “ordinary annoyance” is a large gulf. An extra sentence or two might have helped. Secondly, the court noted, but really didn’t address, the confusion between remoteness considerations and thin skull (“eggshell skull”) considerations. “Eggshell skull” cases, said the court, arises “where [the] result of a breach of duty [is] more serious than expected”, whereas remoteness is “a threshold test for establishing compensability of damages at law.” I don’t see this as being a particularly helpful way of distinguishing between the two. Given how the thin skull rule is applied in cases of physical injury, trial judges are going to enjoy trying to reconcile the statement (cited earlier) about tort law treating mental and physical injuries in the same way with the statement that the plaintiff must show that his or her mental injury would have occurred in a person of ordinary fortitude.

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