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Waiter, There’s a Fly in My Water

Published in the December 2006 issue of Litigation Notes - View Article

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We have previously commented on decisions involving the concepts of mental distress or psychiatric damages.. Most recently we described (Litigation Notes, Volume 1, Issue 5) an important development in the law affecting mental distress claims in the law of contract. The Court of Appeal for Ontario has now brought much needed clarity to the way in which such claims should be dealt with in the law of tort.

The story in Mustapha v. Culligan is about a dead fly in a bottle of water and the extreme sensitivity of Mr. Mustapha, who had relied upon Culligan for drinking water. In the fall of 2001 he and his wife were placing a bottle in the home dispenser. Before the bottle was opened they both noted the presence of a foreign body which, on inspection, turned out to be a dead fly. Both had immediate reactions of revulsion and nausea, but only Mr. Mustapha went on to develop more significant problems.

Although no one actually drank any of the water, Mr. Mustapha became obsessed with the idea that he and his family were, or might be, threatened with serious harm. The trial judge accepted that Mustapha “pictures flies walking on animal feces . . . and then being in his supposedly pure water”. As a result he had nightmares, slept poorly, became unable to drink water, experienced great difficulty taking showers, became argumentative, edgy and constipated. His work suffered and he lost his sexual drive. The trial judge awarded damages for psychiatric injury of approximately $350,000.

The Ontario Court of Appeal set aside this judgment and required Mustapha to pay costs of the appeal. In doing so, the Court formulated a clear statement of the law. The central issues are with respect to foreseeability and policy considerations. What type of harm must be foreseeable? How are very extreme reactions which are peculiar to an individual to be viewed?

In the United Kingdom, a distinction has been made between “primary” and “secondary” victims with regard to nervous shock cases. The first are those who are involved in the actions which cause the harm while the second are passive witnesses. Significantly, the courts of the UK have found that foreseeability of physical (as opposed to psychiatric) injury is sufficient for the first category. In respect of the second category it is necessary to show that some form of psychiatric illness in a person of normal fortitude was reasonably foreseeable.

The Ontario Court of Appeal rejected the distinction between primary and secondary victims. This it found to be a “mechanism constructed and deployed by the courts to put limits, for policy reasons, on the scope of recovery in psychiatric harm cases”. However, having rejected the distinction, the Court explicitly stated that the approach to liability must involve a consideration of policy issues in additional to foreseeability. The Court concluded that, as a matter of policy, it is not appropriate to impose liability for psychiatric injury where the harm suffered is significantly disproportionate to the relatively inconsequential nature of the incident and where the victim is not “a person of normal fortitude and robustness”. Thus the claim failed.