Waddah (Martin) Mustapha could not get over the horror of it. The hairdresser was drinking from his bottled water when Waddah found a flouting dead fly. For his suffering (including depression and phobias), he was awarded $341,775. The Supreme Court of Canada had other ideas, and threw out the award — ruling 9-0 that Culligan of Canada could not be liable for psychological damages.
In 2005, Mr. Justice John Brockenshire of the Ontario Superior Court described Waddah’s injuries from sleepless to nightmares to a refusal to drink even coffee because it containted water:
“He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water,” Judge Brockenshire said. “He has been constipated, is bothered by revolting mental images of flies on feces, etc., can no longer take long and enjoyable showers and instead, after lengthy treatment, can only take perfunctory showers with his head down so the water does not strike his face.”
The Supreme Court ruled that the company could not have reasonably foreseen such an extreme reaction to a dead fly: “Mustapha failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install,” Chief Justice Beverley McLachlin wrote for the court.
Waddah now will be faced with paying the legal costs for both sides — roughly $500,000. In my view, this is another example of the gross unfairness of the “English rule.” Here is a guy who won a judgment below in a case of obvious negligence by the company. Yet, under the “loser pays rule” he could face crippling damages. Such results work to insulate companies from lawsuits by discouraging contingency lawyers and deterring possible litigants. The damages here were clearly excessive and the reaction too extreme. However, the basis of the case was still well-founded.
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JT:
Here is another contest between consequence-based liability and foreseeability-based liability. The Court does not dispute Waddah (Martin) Mustapha’s claim of actual resulting injury.* Their emphasis is on the affect such a ruling would have on the tort-feasor’s pocketbook, basically falling into the protectionist mindset that Andrews so eloquently explained as the flaw in the Palsgraf decision.
I am not so sure the verdict was excessive either. The article says:
” [Mustapha] couldn’t sleep, had regular nightmares and refused to even drink coffee because it contained water. He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water. He has been constipated, is bothered by revolting mental images of flies on feces, etc., can no longer take long and enjoyable showers and instead, after lengthy treatment, can only take perfunctory showers with his head down so the water does not strike his face. Mr. Pape [his counsel] said Thursday that what really unsettled his client was not so much the sight of the dead fly on Nov. 21, 2001, but a feeling that he and his family may have unwittingly consumed any number of insect parts since 1986.”
Though a “major depressive disorder” and “phobia” are extreme reactions, they are no less real, and why, only in the case of psychological injuries free from any suggestion of fraud or exaggeration, does the defendant not take the plaintiff as he finds him?
The English rule is also troubling in his case, but generally speaking, I like the rule since my client’s routinely could never pay the costs anyway, and the defendant almost always has that ability. It makes for more settlements and fewer appeals. Typically, it is the defense bar here in Virginia that most staunchly oppose it when it hits the bill hopper in the Va. legislature.
*From the article: “Mr. Pape said it was gratifying that the court rejected any suggestion that his client had been a malingerer. Indeed, Chief Justice McLachlin noted in her ruling that Mr. Mustapha suffered from “a major depressive disorder with associated phobia and anxiety.”
Society wins one round.