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Of Snails and Flies
Published in the May 2008 issue of Litigation Notes - View Article
Synopsis: The Supreme Court of Canada has denied damages for emotional distress to a man who found a fly in his bottle of water. The Defendant’s liability would only be engaged if the damages were reasonably foreseeable and “unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable”.
The case of Mustapha v. Culligan has caused a considerable interest in the legal community by reason of the similarity that the facts of the case bear to the facts in one of the most famous and influential cases in the common law.
In August of 1928 Mary Donoghue and a friend travelled from Glasgow, Scotland to the nearby town of Paisley for an evening’s entertainment. They went to the Wellmeadow Café, where they ordered some refreshments. In Mary Donoghue’s case, it was a bottle of Stevenson’s Ginger Beer. Ms. Donoghue consumed part of her ginger beer and her friend then poured the remainder on top of a bowl of ice cream. Out plopped a partially decomposed snail. Ms. Donoghue later went to the doctor where she was diagnosed with gastroenteritis. She also complained of some emotional distress.
Ms. Donoghue sued Stevenson. However, it was her friend who had purchased the bottle of ginger beer, so that Donoghue had no contractual relationship with the owner of the café or with the manufacturer. The law at the time considered that a manufacturer did not owe any duty to anyone with whom it did not have a contractual relationship, unless the goods manufactured were dangerous in themselves or the manufacturer knew them to be dangerous, neither of which was the case. Consequently, Ms. Donoghue’s case was dismissed at a preliminary stage and that decision was upheld by the Scottish Court of Appeals. Ms. Donoghue appealed to the House of Lords, where Lord Atkin famously invoked the parable of the Good Samaritan in the Gospel of Luke and said:
“There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. … The rule that you are to love your neighbour becomes a law you must not injure your neighbour; and the lawyer’s question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as long as so affected when I am directing my mind to the acts or omissions that are called in question.”
The case opened the door to 80 years of products liability litigation and to efforts by the courts to define the parameters of the duty of care.
In the December 2006 edition of Litigation Notes we reported on the case of Mustapha v. Culligan. Mr. Mustapha had been purchasing drinking water from the Culligan company for many years and in the fall of 2001 was placing a new bottle on his home dispenser. He and his wife both noticed a foreign body in the water which turned out to be a dead fly. Both Mr. Mustapha and his wife experienced revulsion and nausea but Mr. Mustapha went on to suffer nightmares, slept poorly, became unable to drink water, experienced difficulty taking showers, became argumentative, edgy and constipated. His work suffered and he lost his sexual drive. He sued the Culligan corporation and was awarded $350,000.00. This decision was reversed by the Ontario Court of Appeal and he appealed the matter to the Supreme Court of Canada.
The Supreme Court of Canada released its decision on May 22 and upheld the Ontario Court of Appeal. The Court applied well-known principles in the law of negligence and held that Culligan could only be found liable if the harm to Mustapha was reasonably foreseeable. In judging whether the personal injury was foreseeable, the Court considered whether the likelihood of injury should be applied to a person of “ordinary fortitude” or to an individual “with his or her particular vulnerabilities.”In this regard the Court points out that the law has consistently held that the question is what a person of ordinary fortitude would suffer. The Court states that “unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable”, but does on to say that the intention is “not to marginalize or penalize those particularly vulnerable to mental injury”.Rather it is “to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance.The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful.In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability.”
The Court is also careful to point out that it is not tampering with the “thin-skull”. principle of negligence law. The law has long held that the tortfeasor takes his victim as he finds him. The famous dictum from the case of Smith v. Leech Brain Co. is :
“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart”.
The Court states that focusing on the person of ordinary fortitude for the purposes of determining foreseeability is not to be confused with the thin skull situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected.Rather, it is a “threshold test for establishing compensability of damages at law.”
Mustapha v. Culligan, 2008 SCC 27