Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Torts - Negligence - Duty of care - Psychiatric harm - Plaintiff saw dead flies in unopened bottle of drinking water - Plaintiff suffered severe psychiatric harm as a result of seeing flies in water - Whether company supplying water had a duty of care to plaintiff - Whether psychiatric harm was foreseeable - Whether the test for foreseeability of psychiatric harm in tort is distinct from the test for foreseeability of physical harm - Whether a duty exists only to the psychologically robust - Whether the type and extent of harm must be reasonably foreseeable - Whether the Court of Appeal erred by focussing on the nature of the injury rather than the nature of the malfeasance when assessing the duty of care.

Mr. Mustapha and his wife saw a dead fly, and later another half of another dead fly, in an unopened bottle of drinking water bottled and supplied to their home by Culligan. Mr. Mustapha was diagnosed as having a major depression, anxiety, specific phobias, and obsessional thoughts flowing from seeing the dead flies in the water bottle. He sought recovery for his psychological damages from Culligan. The trial judge found that the psychiatric effect of the incident was due to Mr. Mustapha’s particular sensibilities. Although his reaction was “objectively bizarre”, his particular circumstances, along with Culligan’s knowledge that the nature of its product indicated a concern for purity and cleanliness, made psychiatric injury from the incident foreseeable for Mr. Mustapha. Culligan was found liable for the damages arising from and in relation to Mr. Mustapha’s psychiatric illness, as diagnosed, and damages were assessed.

Culligan appealed, and the Court of Appeal found that the trial judge had erred in failing to incorporate an objective component when determining whether Culligan owed a duty to Mr. Mustapha. He had also erred in asking whether psychological harm to Mr. Mustapha was possible rather than probable. It found that the test for the existence of a duty of care towards primary or secondary victims in cases of psychiatric harm was whether it was 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. It granted the appeal and rejected a cross-appeal based on contract law.