Last week, the Court of Appeal released an important decision, dealing with tort liability for “nervous shock”. In Mustapha v. Culligan of Canada Ltd., the Court allowed an appeal from the trial decision of Justice John H. Brockenshire, dated April 7, 2005, in which the defendant Culligan had been found liable for damages of $341,775 because one of the plaintiffs had seen a dead fly in an unopened bottle of Culligan water. A unanimous panel of the Court of Appeal (Justices Eleanor A. Cronk, Robert A. Blair and Justice Edward F. Then) reversed the trial judge’s decision and dismissed the plaintiff’s claim, on the basis that it was not reasonably foreseeable to the defendant Culligan, that the plaintiff would have such an extreme reaction (vomiting, nightmares, etc.) to the sight of a fly in the bottle of water.
Waddah Mustapha had come to Canada from Lebanon in 1976, at the age of 16. When the incident giving rise to the litigation occurred, he owned and operated two successful hairdressing salons in Windsor. His wife Lynn was described in the trial judge’s reasons as “a stay at home mother, with two little girls, Amanda age seven and Martina age three”. The Mustaphas were fastidious about cleanliness and hygiene. Back in the 1980’s, Mr. Mustapha had been visited by a representative of Culligan Canada Ltd., who had told him of the purity of Culligan water and its superiority to city water. As a result, Mr. Mustapha had been using Culligan water in both his business and in his home for a number of years. On November 21, 2001, while Mr. Mustapha was replacing a bottle of Culligan water in the couple’s home, he and his wife noticed something dark inside the bottle and, on closer inspection, recognized it as a dead fly. Lynn Mustapha vomited immediately; her husband did so later that night.
At trial, Brockenshire J. dismissed the wife’s claim, finding that her reaction did not rise to the level of nervous shock or psychiatric illness that was compensable in tort. However, the evidence at trial established, to the satisfaction of Justice Brockenshire, that Waddah Mustapha was entitled to damages of $341,775, made up of general damages of $80,000, $237,600 for loss of income, plus some miscellaneous expenses. He found that Mr. Mustapha had become obsessed with the image of the dead fly in the bottle. The plaintiff pictured flies walking on animal feces and then contaminating his family’s drinking water. He experienced nightmares and personality changes that affected his ability to work. As well, Mr. Mustapha experienced some physical symptoms, such as nausea and abdominal pain. The trial judge found that as a result of the fly in the bottle, Mr. Mustapha had suffered “a major depressive disorder, with associated phobia and anxiety”. This finding was not challenged on appeal. Rather, the issue was whether the plaintiffs were required to show that it had been reasonably foreseeable to Culligan, that Waddah Mustapha would sustain a psychiatric illness as a result of seeing the fly in the bottle and if so, whether that requirement had been met.
The decision of the Court was written by Justice Blair. He reviewed the jurisprudence in Canada and England, dealing with liability for “nervous shock” or “psychiatric injury”. He discussed at some length the distinction that has been drawn in the English caselaw, between “primary victims” (persons who are involved in some way as participants) and “secondary victims” (those whose involvement is limited to being a witness of injury to others). Ultimately, the Court concluded that the “primary victims” vs. “secondary victims” distinction should not be employed in Ontario. However, the panel did accept that claims based on psychiatric harm involve “a consideration of policy issues in addition to reasonable foreseeability alone”. Justice Blair did not consider it necessary to articulate fully a general approach for these policy factors. He concluded that the policy objectives could be achieved by factoring into the “reasonable foreseeability” equation an objective criterion: what harm would a person of “normal fortitude and robustness” suffer? This led the Court to formulate the applicable test in the following terms:
Reasonable foreseeability of harm is the hallmark of tort liability. In my opinion, the test for the existence of a duty of care—and, therefore, for liability–in cases of psychiatric harm is whether it is reasonably foreseeable that a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm as a consequence of the defendant’s careless conduct. That is what foreseeability means. This test, which is the foreseeability test enunciated in Vanek, applies regardless of the distinction between “primary victim” and “secondary victim” cases.
Applying the test to this case, the Court of Appeal ruled that the trial judge had erred by focusing excessively on the effect that the sight of a dead fly had had on this particular plaintiff. What should, instead, have been considered is the effect that the experience would have had on a person of normal fortitude and robustness. Mr. Mustapha’s extraordinary reaction was, the Court said, “abnormal” and thus, damages were not recoverable.