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Date: Fri, 15 Dec 2006 13:27:39 -0800 (PST) From: David Cheifetz Subject: Flies in water bottles
Dear Colleagues: The Ontario Court of Appeal unanimously allowed the appeal, today, and dismissed the case. [1] The Mustaphas maintain a spotless home. Cleanliness and hygiene are matters of utmost importance to them. On November 21, 2001, an incident occurred that offended their sense of sanctity in the purity of their home, and shattered Mr. Mustapha’s life. In the course of replacing an empty bottle of Culligan water on the dispenser provided by Culligan, he and his wife saw a dead fly, and part of another dead fly, in the fresh, unopened, replacement bottle. [2] Neither Mr. Mustapha nor any member of his family drank from the bottle. He became obsessed, however, with thoughts about the dead fly in the water and about the potential implications for his family’s health of their having possibly been drinking unpurified water supplied in the past. [3] The trial judge accepted the medical evidence that Mr. Mustapha suffers from a major depressive disorder, with associated phobia and anxiety – all triggered by the fly-in-the-bottle incident. In the result, Mr. Mustapha recovered judgment at trial in the total amount of $341,775, plus pre-judgment interest, for psychiatric injuries suffered because of the incident. [4] Culligan of Canada Ltd. appeals the finding of liability against it and, in the alternative, seeks to reduce the amount of damages awarded. [5] For the reasons that follow, I would allow the appeal and set aside the judgment below. The court dealt with both the tort and contract claims, finding the case had to fail regardless of the cause of action - on the evidence and the law.
David
Cheifetz
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