Be afraid. Be very afraid.

[Wezil]

OTTAWA - Canada's highest court is to rule Thursday on whether a man who found a fly in his bottle of water should be compensated for anxiety and depression.

Martin Mustapha of Windsor, Ont. said he was forever altered by finding the insect, despite the fact he didn't drink from the bottle. He said he developed a phobia about flies, cannot sleep, is irritable and his sex life has suffered.

He sued the water-bottling company and was awarded $341,000 in 2005.

But the Ontario Court of Appeal overturned that decision, and ordered Mustapha to pay the company's legal costs.

Mustapha hopes the Supreme Court will side with the original ruling.

http://cnews.canoe.ca/CNEWS/WeirdNews/2008/05/21/5631081-cp.html

I don't like his chances.

(Although I am curious to know why the SCOC agreed to hear the case in the first place...)

[Traianvs]

Only in (North-)America

[snoopy369]

Good one...

They probably agreed to hear based on the legal costs issue, i'd guess...

Making frivolous lawsuit bringers pay legal costs

[Wezil]

Originally posted by snoopy369
Good one...

I sincerely hope you are referring to the thread title.

They probably agreed to hear based on the legal costs issue, i'd guess...

Making frivolous lawsuit bringers pay legal costs

You may be right. I'll watch for the decision.

[UnOrthOdOx]

I found a grasshopper in a bag of spinach I bought once. Even got a bite into it before wondering what was so chewy. I wants some moneys!!! I'm now terribly afraid of spinach...er something...

[Imran Siddiqui]

I think they just wanted to laugh at him to his face.

[Theben]

He got an award before. That's what's really scary.

[Asher]

The guy gets ****ed

http://www.theglobeandmail.com/servlet/story/RTGAM.20080522.wscocwater0522/BNStory/National/home

Supreme Court tosses out fly-in-the-water case

A Windsor, Ont. hairdresser who became depressed and phobic after finding a dead fly in his bottled water has lost a damages award of $341,775 from the bottling company that supplied his water.

In a 9-0 judgment, the Supreme Court of Canada said that Culligan of Canada Ltd. could not be found liable for psychological damage suffered by Waddah Mustapha, because it could not have reasonably foreseen the consequences of his finding the 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.

”Unusual or extreme reactions to events caused by negligence are imaginable, but not reasonably foreseeable.”

The ruling confirms an Ontario Court of Appeal decision that had stripped the $341,775 award made in 2005 by Ontario Superior Court Judge John Brockenshire.

Judge Brockenshire's award comprised $80,000 in general damages, $24,174.58 in special damages and $237,600 in damages for loss of business.

A Lebanese immigrant, Mr. Mustapha came to Canada in 1976 at 16. He married and has two daughters. He and his wife owned a successful hairstyling business.

In 1986, Mr. Mustapha installed Culligan water dispensers at his business and at his home, and the family began to drink nothing but bottled Culligan water.

Judge Blair noted that the Mustapha family home was spotless and hygienic. In that context, he said, the fly incident on Nov. 21, 2001, ”offended their sense of sanctity in the purity of their home, and shattered Mr. Mustapha's life.”

The 47-year-old man alleged that he began to suffer serious psychiatric symptoms – a major depressive disorder with associated phobia and anxiety – soon after he discovered the fly in his bottle of water.

Evidence showed that he became edgy, argumentative and depressed, could not sleep and refused even to drink coffee because it contained water. Obsessed with his fears, Mr. Mustapha had nightmares and great difficulty engaging in any activity that involved water – from drinking to taking showers.

Judge Brockenshire conceded that Mr. Mustapha's symptoms were decidedly bizarre: ”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.”

Culligan argued unsuccessfully at trial that Judge Brockenshire should focus on the objective question of whether the effects on Mr. Mustapha could have been ”reasonably foreseeable.”

The Court of Appeal agreed in overturning the award – as the Supreme Court did on Thursday. Both courts said that, while Culligan did have a ”duty of care” to consumers of its products, the outcome of the fly incident was so bizarre that it could not have been reasonably foreseen.

They said Judge Brockenshire made the mistake of considering Mr. Mustapha's subjective response to his discovery, rather than considering objectively what a person with average sensibilities might have felt.

Chief Justice McLachlin provided a partial definition of psychological harm in Thursday's judgment: ”Psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset,” she said. ”Personal injury at law connotes serious trauma or illness.

”The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury,” the Chief Justice added. ”I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”

According to medical evidence at the Mustapha trial, she said, the plaintiff developed ”a major depressive disorder with associated phobia and anxiety. This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law. It follows that Mr. Mustapha has established that he sustained damage.”

Chief Justice McLachlin observed that the law attempts to reach a ”socially useful” compromise; one that cannot achieve perfection. In a case such as Mr. Mustapha's, she said that the key to success is to show that the defendant was aware that the plaintiff was particularly vulnerable.

”In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha's particular sensibilities.”

The appeal court also ordered Mustapha to pay Culligan's legal costs of roughly $30,000 to that point. He will also be hit with the bill for legal costs at the Supreme Court under the standard "loser pays" rule that applies to most such cases in Canada.

[Kontiki]

The guy is a Lebanese immigrant but can't handle the sight of a fly in some water?

[Garth Vader]

Originally posted by Kontiki
The guy is a Lebanese immigrant but can't handle the sight of a fly in some water?

QFT

[Wezil]

9 - 0 is pretty convincing.

The legal costs are now approaching $300K.


My understanding was they took the case as the area of tort law specific to mental injury without any accompanying physical harm (ie different from the grasshopper talked about by an earlier poster) is still quite thin.

With that in mind it is easy to see why the court was unanimous in the decision as allowing such a claim would open up a "can of worms" that would be disastrous (for example every person that drives by an accident scene could claim mental anguish...)

[snoopy369]

I'd have also argued that clearly he already suffered OCD, and this OCD was what caused the anxiety at seeing a fly - not the fly itself. The 'injury' was clearly a pre-existing condition, and his anxiety was a symptom of that condition, not the actual condition.

[Wezil]

Yes but there is the legal principle of people being "as you find them".

[snoopy369]

What does that mean in discussing a pre-existing condition?

I'm saying that it is equivalent to someone who tore his MCL going on a ski lift, and then suing the ski lift operator when his knee was further injured.

[Wezil]

If you assault someone with a "thin skull" and do them serious harm b/c of this condition (where the effect of the assault on someone "normal" would have been far less) it is your tough luck.

A similar argument was advanced with the fly guy. He was obviously of an extremely fragile temperment and was seriously harmed by what would be only a nuisance to others.