Supreme Court to Rule on Tort of Pure Psychological Injury

The Supreme Court of Canada is expected to rule this week on an important and increasingly common tort claim, the tort of pure mental distress/ nervous shock.

The facts giving rise to the case are that Waddah Mustapha, a Windsor, Ontario man, saw a dead fly in the fresh, unopened, replacement water bottle supplied by Culligan Canada, who regularly supplied bottled water at his home and salon.

Neither Mr. Mustapha nor any member of his family drank from the bottle. However, he became obsessed with thoughts about the dead fly in the water and about the potential implications for his family’s health of their having possibly been drinking unpurified water supplied in the past.

The trial judge accepted the medical evidence that Mr. Mustapha suffers from a major depressive disorder, with associated phobia and anxiety – all triggered by the fly-in-the-bottle incident.

The trial judge held:

“I find that Mr. Mustapha has suffered a recognizable psychological injury as a result of seeing the fly in the Culligan bottle, that the bottle was contaminated during the bottling process, and before sealing at the company’s premises, that it continued to be sealed until and after the viewing of the fly by Mr. and Mrs. Mustapha, that the contamination of Culligan water bottles by flies was known to be possible, that the occurrence of this type of contamination was a breach of a duty of care imposed by statute and the common law on the producers of products like drinking water, that the possibility of damage, including psychological damage occurring as a result of suchcontamination was foreseeable in all of the circumstances, and that accordingly Mr. Mustapha was entitled to damages, which damages are assessed as general damages of $80,000, past and future special damages of $24,174.58, and past and future economic damages of $237,600. The claim for aggravated damages is denied.”

Culligan of Canada Ltd. appealed the trial judge’s finding of liability, and in its judgement dated 15th December 2006 the Ontario Court of Appeal set aside the trial judge’s finding.

The Appeal Court held as under:

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.

I am satisfied that the trial judge erred in considering whether there was a foreseeable “possibility of damage, including psychological damage” arising as a result of seeing the dead fly in the bottle of water, rather than considering whether there was a foreseeable “probability” of such damage.

Mr. Mustapha took the matter to the nation’s top court, which is expected to hand down its judgment this week.

We will report on the Supreme Court’s decision, once it is released. We will also write about the distinction between “possibility of damage” and “probability of damage” used by the Court of Appeal to set aside the trial judge’s finding of liability.

- Shashi K. Raina, Toronto

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