On November 21, 2001, the plaintiff, Waddah Mustapha ("Mustapha"), was replacing an empty bottle of Culligan water in his water cooler. Mustapha noticed a dead fly in the unopened bottle of replacement water. Neither Mustapha nor any member of his family drank from the bottle. However, Mustapha's wife vomited immediately and Mustapha vomited at a later time. Thereafter, Mustapha became obsessed with thoughts about the dead fly in the water and about the potential implications for his family's health of having possibly been drinking unpurified water supplied in the past.

Trial Decision - Damages for Psychiatric Injury Allowed

Mustapha sued Culligan, the supplier of the bottle of water, for psychiatric injury. The trial judge accepted medical evidence that Mustapha suffered a major depressive disorder with associated phobia and anxiety triggered by the incident. He held that while Mustapha's reaction was unexpectedly severe, he attributed this to Mustapha's Middle Eastern background "where the devotion to and concern for the family is at a higher level than is found in North America," combined with the "higher level of cleanliness and avoidance of insects practiced by his family than is usual". The trial judge awarded Mustapha $340,000 in damages.

Reversal of Decision on Appeal - Damages Not Reasonably Foreseeable

Culligan appealed the trial judge's decision. The issue of law raised in the Court of Appeal decision was whether the plaintiffs were required to show that it was reasonably foreseeable to Culligan that 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 Ontario Court of Appeal overturned the trial decision on the basis that the injury was not reasonably foreseeable and, therefore, did not give rise to a cause of action. Justice Blair, writing for a unanimous court, held that the trial judge erred by placing too much weight on the effect that the sight of a dead fly had on this particular plaintiff.

The court stated that a plaintiff must demonstrate reasonable foreseeability of psychiatric illness in order to recover in tort. The court enunciated the test for the existence of a duty of care and, therefore, for liability to attach in cases involving psychiatric harm as follows: 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.

Ultimately, the Ontario Court of Appeal found that it was not reasonably foreseeable by Culligan that Mustapha would react the way he did. There was no evidence to indicate that Culligan was made aware of or ought to have known anything about the particular sensibilities of Mustapha and his family. Mustapha's reaction was abnormal and not the response of an average sensitive person of reasonable fortitude and robustness. It stated that a duty of care will only be found where the harm was or ought to have been foreseeable, which requires an analysis of the proximity of the relationship between the parties and the probability of the harm occurring.

Mustapha also sued Culligan for breach of contract. On that issue, the court found that it was not in the reasonable contemplation of Culligan and Mustapha at the time that the contract was entered into that psychiatric harm flowing from such an incident would be the probable result of Culligan's breach of its contractual duty to provide Mustapha with clean, quality water. The court further found that there was no evidence that Culligan was made aware of Mustapha's particular hypersensitivities or that it ought to have been aware of them.

Supreme Court of Canada - Damages Too Remote to Allow Recovery

In a unanimous decision, the Supreme Court of Canada dismissed Mustapha's appeal on the basis that Mustapha's damages were too remote to allow recovery.

The court found that Mustapha had established three of the four elements needed to prove negligence, namely: (i) the existence of a duty of care owed to him by Culligan; (ii) a breach of that duty by Culligan by providing Mustapha with contaminated water; and (iii) injury or damages suffered by Mustapha.

While the court accepted that Mustapha had suffered the psychiatric disorders diagnosed by his physicians following the incident, Mustapha failed to show that it was reasonably foreseeable that a person of "ordinary" fortitude would suffer serious injury from seeing a dead fly in the bottle of water that he was about to install. The court stated that unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable. The court held that the trial judge erred by applying a subjective standard of vulnerability when considering whether the plaintiff's injuries were compensable.

The Supreme Court also considered the claim for breach of contract and held that the need for foreseeability of injury similarly applies to a claim in contract, and that as Mustapha's damages could not reasonably have been within the contemplation of the parties when they entered into their agreement, this claim also failed.