“quashed”6and “swatted”7Mr. Mustapha’s claim, and told him to “buzz o.”8ere 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 suer psychiatric injury.
In this paper, I examine the history and development of the tort of negligent iniction 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 dicult task when it must grapple with the dierence (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 inuence
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 plaintis.Such a framework would (ideally) maintain
justiable limits on the tort of negligent iniction of mental suering 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 iniction of psychiatric injury
through case law, commentary, and law reform eorts, 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 iniction 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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