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

• Author: Margo Louise Foster
• Position: B.A. Hons. (UBC), M.A. (SFU), LL.B. (UVic, completion expected April 2009)
• Pages: 37-67

ARTICLE

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

By Margo Louise Foster*

CITED: (2009) 14 Appeal 37-67

INTRODUCTION

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.

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* 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. Mustapha’s 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” CTV.ca(22 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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