Date: Fri, 14 Jul 2006 14:58:49 -0400

From: John Swan

Subject: A Fly in the Bottle This Time

In Mustapha v. Culligan of Canada Ltd., 2005 CanLII 11990 (Ont. S.C.J.), the plaintiffs, husband and wife, claimed damages for psychological distress caused the discovery of a dead fly (and parts of another) in a bottle of water purchased from the defendant. (Mrs. Mustapha’s claim was dismissed.)

The trial judge described some of the effects of this discovery on Mr. Mustapha:

[5] Following [the discovery of the fly], his evidence was that he could not get the fly in the bottle out of his mind. He would have nightmares about flies and about falling into a ditch, face down in water. He was not sleeping more than four hours a night. He has not been able to drink water since the incident. He lost his sense of humour, and became argumentative and edgy.

…

[8] He told us that he has not been able to get the thought of the fly in the water bottle from his mind since the incident, and he keeps going over the revolting implications of it. 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 with Culligan water.

…

[10] He told us that before this incident he took a shower every morning, and would sing in the shower. After the incident, he would go into the bathroom in the morning and stand there contemplating whether he would get in the shower at all. Many times he would just walk away, get dressed and leave, or at most take a cloth, wipe under his arms, put on deodorant and leave. Finally, following therapy, he got so he could get in the shower, hold his breath, keep his head down so the water would not strike his face, and wash himself off in a couple of minutes.

[11] After months of seeing Dr. Chung regularly, and not recovering, at Dr. Chung’s recommendation he started seeing a psychologist, Dr. Clyne. In extensive therapy, she set out to relax and desensitize him, perhaps most notably by coming to his house and sitting on the toilet seat in the bathroom, while Mr. Mustapha, in a swim suit, tried first standing in the shower with it off, outside it while it was on, and finally getting in under the water.

[12] Dr. Clyne also eventually got him to drink coffee (he had been drinking heated milk with instant coffee added to it) and also juice. However he was never able to drink plain water.

In dealing with the argument that such severe psychological consequences could not reasonably have been foreseen, the trial judge referred to White v. Chief Constable of South Yorkshire Police [1998] H.L.J. No. 45, [1999] 1 All E.R. 1, in paragraph 4, where Lord Griffiths referred to "… reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury”. He held:

[226] Here, we are not dealing with South Yorkshire Police constables. We are dealing with an urban, and urbane, hair stylist. Moreover, we are dealing with a person with the sensitivities that, in my view, would make him what he was – a good and faithful customer of the Culligan company for some 15 years, buying and using their water both at his home and at his business. He was very concerned over the purity and healthfulness of the water that he and his family consumed, and was convinced, by the Culligan representatives, that their water was better, purer and safer than the water supplied by the city public utility system. Given that, it in my view was clearly foreseeable to Culligan that if it supplied a water bottle with dead flies floating around in it, Mr. Mustapha, and other customers like him, would suffer "some degree" of nervous shock. In my view, in the particular circumstances of this case, the foreseeability test has been met.

In the result, the trial judge awarded Mr. Mustapha general damages of $80,000, past and future special damages of $24,174.58, and past and future economic damages of $237,600. The claim for aggravated damages was denied.

The case has now been argued before the Ontario Court of Appeal.

What are the chances that that Court will allow the appeal? Should it?

John Swan

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