Today’s case isn’t particularly earth-shattering, but it’s of some interest to students of tort law. The case is Mustapha v. Culligan of Canada Ltd. (reasons for judgment attached, courtesy of Mr. Justice Thomas Granger of the Ontario Superior Court). The plaintiffs, Mr. and Mrs. Mustapha, sued because a Culligan man delivered to their home some bottled water. In one still-sealed bottle, the Mustaphas noticed a fly and part of a second fly. They claimed to have suffered “nervous shock, emotional distress, and resulting anxiety, depression and physical and psychological conditions arising from alleged negligence and/or breach of contract of Culligan”.
Now, what we found striking about this case is that the facts closely resemble those in Donoghue v. Stevenson, which is considered the grand-daddy of negligence law. In 1929, Mrs. Donoghue was enjoying an ice cream soda, made of ice cream and ginger beer. As she poured the last drops of the ginger beer on the ice cream, the rotting corpse of a snail emerged with it. Horrified at the notion that the dessert she had been consuming had contained the decomposed remnants of the snail, she sued. But because a friend had bought the ginger beer for her, she could not sue the publican who had supplied it, as she had no contractual relationship with him. Instead, she sued Stevenson, the manufacturer of the bottle of ginger beer. This has not been done before (at least, not successfully).
The case went all the way to the House of Lords and, by a three to two margin, the Law Lords laid down the “neighbour” principle that is the cornerstone of negligence law today. The principle was stated in the case in these words:
You must take reasonable care to avoid acts or omission 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 being so affected when I am directing my mind to the acts or omissions which are called in questionEvery common-law lawyer practising today has studied the Donoghue case, often referred to as “The Paisley Snail”.
Back to the Mustapha decision of 2005. The reasons of the trial judge, Mr. Justice John Brockenshire, extend over 47 pages. It appears that Mr. Mustapha’s reaction to the sight of the flies was extreme:
[H]e could not get the fly in the bottle out of his mind, he had nightmares, he was only sleeping four hours or so a night, he has been unable to drink water since the incident, he has lost his sense of humour and instead become argumentative and edgy, 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. It took lengthy treatment before he could drink coffee made with water. He has to take a variety of medications which he says leave him feeling that he is not in full control and draggy. He can’t get up and get off to work in the mornings as he always used to. He has lost clients because of the changes in his personality and mood and also because of the reduction in his previous skills as a hairstylist. He has lost interest in, and ability to perform sexually. He had initial complaints of nausea and present complaints of constant, unexplained abdominal pain or discomfort.Justice Brockenshire candidly observed that “the reaction of Mr. Mustapha to seeing a dead fly, and part of another, in a bottle of Culligan water was certainly, and objectively bizarre”. But in the end, he concluded that, for the most part, the Mr. Mustapha’s complaints were genuine. (He dismissed the claim of Mrs. Mustapha.) Brockenshire J. found that Culligan was liable to Mr. Mustapha for damages totalling $341,774.58.
Some might find this outcome shocking (especially since Mr. Mustapha didn’t actually drink the water; at least Mrs. Donoghue consumed some of the ginger beer containing the dead snail). Even though the plaintiffs and the defendant were in a contractual relationship, the case was decided on the basis of negligence law. And what bothers us most is that the reasons for judgment do not so much as mention their famous ancestor, the House of Lords’ decision in “The Paisley Snail”, which has provided livelihoods to many judges, lawyers and adjusters in the ensuing seventy-six years.