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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