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Case Comment: Mustapha v. Culligan
Published in the May 2008 issue of Transportation Notes - View Article
In a brief and unanimous decision which many will celebrate as a triumph of common sense, the Supreme Court of Canada has confirmed that Waddah Mustapha has no cause of action for the psychiatric injury he suffered upon seeing a dead fly in a bottle of drinking water which he was preparing to install in a dispenser at his home.
Mustapha and his family had maintained the same supplier of drinking water for some 15 years. The trial judge determined that Mustapha developed a “major depressive disorder and associated phobia and anxiety” as a result of seeing the fly and reflecting on the implications for his past consumption. The incident led to profound changes in Mustapha’s personal life and capacity to support himself economically. None of these findings of fact were disturbed on appeal. The trial judge awarded damages totalling approximately $350,000.
In the January 2007 edition of Transportation Notes we commented on the decision of the Ontario Court of Appeal overturning the trial decision. We leave it to the reader to determine whether we were overly optimistic or prescient to include our article on the “End of the Line” page. The Supreme Court of Canada has now confirmed that it is indeed the end of the line for Mustapha and his claim.
The Ontario Court of Appeal was of the view that case should be decided by recourse to policy considerations. The Supreme Court of Canada notes that it is rejecting Mustapha’s claim for reasons which differ from those of the Court of Appeal. Since the Supreme Court uses much of the language found in the Court of Appeal it appears that the difference in approach is the absence of overt reference to policy considerations. The Supreme Court found the answer in traditional doctrines of remoteness and foreseeability. Mustapha failed because his damages were too remote to allow recovery. Whether the difference between the courts will prove significant to the future development of the law must be left to further cases and commentary.
That question aside, it is clear that both courts have endorsed an important concept of potential importance in a wide range of claims for psychiatric injury. While none of the following propositions are new, it is encouraging to see them affirmed in the context of Mustapha’s claim.
Mustapha succeeded in establishing all the elements of a successful claim in tort, but one. There was a relationship of proximity between himself and the supplier of the water; the latter breached the standard of care; damages were suffered and the damages were caused in fact by the breach. All that remains is one question: Were they so caused in law? This requires an inquiry into foreseeability and remoteness. To answer the questions which arise, one must assume a person of “ordinary fortitude”, not Mustapha with his particular vulnerabilities. In the absence of actual knowledge of particular vulnerabilities, a stranger is not expected to have in contemplation the possibility of harm flowing from a lack of reasonable fortitude and robustness.
The same conclusion follows in contract and tort. Mustapha is without a legal remedy.
Mustapha v. Culligan,
2008 SCC 27