On
15/12/06 16:27, "DAVID CHEIFETZ" wrote:
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.
