There was a High Court That Swatted a Fly... But Why? Mental Disability in the Negligent Infliction of Psychiatric Injury and the Decisions in Mustapha v. Culligan

AuthorMargo Louise Foster
PositionB.A. Hons. (UBC), M.A. (SFU), LL.B. (UVic, completion expected April 2009)
By Margo Louise Foster*
CITED: (2009) 14 Appeal 37-67
Since the release of the Supreme Court of Canada’s reasons in Mustapha v. Culligan of
Canada Ltd.1(“Mustapha”) on  May , the case has become fodder for many a guaw
and gibe at the expense of Waddah Mustapha, the man who experienced signicant psy-
chiatric injury aer seeing parts of two dead ies in a bottle of water. Mr. Mustapha had
been a faithful customer for een years, and used Culligan water at both his home and
workplace.2e Mustapha family was very concerned with cleanliness, and Mr. Mustapha
had been persuaded of the purity and health benets of Culligan water. Aer the y remains
were discovered, Mr. Mustapha suered a severe depression, as well as phobia and anxiety
in relation to water.3In a brief, unanimous decision, the Court denied his claim: although
Culligan owed him a duty of care,4his injuries were too remote to warrant compensation.5
In the Canadian media, there is near universal support for the Court’s decision; but rather
than appearing as reasoned argument, it appears as a series of puns—the Court having
1Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] S.C.J. No. 27 (QL) [Mustapha SCC, cited to SCC].
2Ibid. at para. 3.
3Ibid. at para. 1.
4Ibid. at para. 6.
5Ibid. at para. 18.
* B.A. Hons. (UBC), M.A. (SFU), LL.B. (UVic, completion expected April 2009). Following graduation from UVic, I
will clerk at the B.C. Supreme Court in Vancouver, and then article with the B.C. Ministry of Attorney General in
Victoria. I wrote this paper in the summer of 2008 under the supervision of Freya Kodar, for whose insights and
support I am very grateful.
“quashed”6and “swatted”7Mr. Mustaphas claim, and told him to “buzz o.8ere is praise
for the Court’s resistance to American-style litigiousness9and for its common sense10—for
upholding axioms like “Life goes on,” or my grandfather’s favourite, “What doesn’t fatten,
lls.” Flies are ubiquitous in everyday life, and we are encouraged to think of them as harm-
less.erefore, it seems nothing short of ridiculous to many observers that the sight of a
y in his water should have caused Mr. Mustapha such injury. Just as the nursery rhyme’s
sarcastic refrain “Perhaps she’ll die!” obscures the (ultimately fatal) escalation of conse-
quences that ow from the swallowing of a y,11 the mocking response to this case largely
masks the implications of the reasons for tort claimants who suer psychiatric injury.
In this paper, I examine the history and development of the tort of negligent iniction of
psychiatric injury—in particular, the way courts have grappled with understanding men-
tal disability in this context. I use the reasons in Mustapha at each level of court as a case
study to analyze how Canadian courts deal with mental disability in this area of law.e
court is confronted with a dicult task when it must grapple with the dierence (if any)
between physical and mental disabilities, necessarily subjective evidence (especially in the
case of depression and anxiety disorders, where diagnosis is inherently subjective), duel-
ing medical experts (there being variations within the medical community about how to
appropriately diagnose such conditions), and the contextual determination of what is “rea-
sonable.” My purpose is to critique the courts’ language and its implications. In pursuing
this analysis, I hope to identify weaknesses in the courts’ reasoning—such as the inuence
of inappropriate assumptions and misplaced “common-sense” reasoning—and propose a
way of understanding mental disability in the context of this tort that might better respect
the equality of mentally disabled plaintis.Such a framework would (ideally) maintain
justiable limits on the tort of negligent iniction of mental suering while respecting the
experience and the equality of mentally disabled persons as tort claimants.
I begin by outlining the broad critical framework through which I will read the tort and the
Mustapha decisions.I put forward a perspective that combines feminist, critical disability
and post-colonial analyses. I suggest that the lines between “disability” and “illness,” and
“physical” and “mental” are indistinct if not imaginary.In the second section, I review the
history, development, and criticisms of the tort of negligent iniction of psychiatric injury
through case law, commentary, and law reform eorts, concluding with some of my own
critical analysis.I then move to the Mustapha decisions, presenting my analysis through the
previously described critical framework and in light of the history and development of the
tort of negligent iniction of psychiatric harm.Finally, I conclude by suggesting some con-
siderations that might help ensure that the substantial equality and dignity of mentally ill
claimants are upheld.
6 “SCC quashes man’s suit over f‌ly in bottled water” May 2008) online: CTV Ottawa
7 Kirk Makin, “Supreme Court overturns damages for f‌ly in bottled water” The Globe and Mail (23 May 2008)
A5; Janice Tibbetts, “Court swats f‌ly-in-water lawsuit” National Post (23 May 2008) A7 [Tibbetts]; Jim Brown,
“Top court swats down f‌ly-in-water lawsuit” Toronto Star(23 May 2008) A3.
8 Tracey Tyler, “Court tells f‌ly phobic to buzz off” Toronto Star(16 December 2006) A4. This article followed the
Court of Appeal’s decision, but still indicates the media’s attitude to the Supreme Court’s decision.
9 Tibbetts, supra note 7; “Let’s see more of this justice” The Province(25 May 2008) A20.
10 “Common sense prevails” Toronto Star (23 May 2008) A4.
11 There was an Old Lady who Swallowed a Fly (Singapore: Child’s Play, 1973). In this poem, a woman f‌irst
swallows a f‌ly, and progresses to swallow increasingly larger animals (the refrain, “Perhaps she’ll die!” after
each), cumulating when she swallows a horse, after which the poem abruptly ends, “She’s dead, of course!”

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