Mustapha v Culligan - Is the Case as Dead as the Fly?
Monday, May 26, 2008 at 04:15
Posted by Marcel Strigberger
The Supreme Court of Canada recently tossed out Martin Mustapha’s fly in the Culligan water tank case. Mr. M, an Ottawa hairdresser, used to order Culligan spring water for his home use. One day in 2001 he noticed a dead fly floating around aimlessly in his water cooler. He apparently freaked out and suffered major psychological trauma including depression. He developed an aversion to water, avoiding drinking and showering.
Mustapha sued Culligan and was successful. The trial judge awarded him over $300,000 in damages. Culligan appealed and the Ontario Court of Appeal said, “uh uh”, (not an uncommon legal maxim). They dismissed the plaintiff’s case.
Mustapha appealed to the Supreme Court, which agreed with the Court of Appeal and Culligan.
Of interest is that Mr. Mustapha came close to winning. And I have ideas how to ensure that others in Mustapha’s shoes can win in future.
The Court did find that Culligan owed Mr. M a duty of care. It also held that Culligan breached that duty in that a drinking water supplier is not supposed to sell pure spring water containing non requested extras, such as drifting flies. It furthermore even agreed that the plaintiff suffered big time and legitimate psychological damage. BUT, it held that such damage was not reasonably foreseeable. The law says that consumers are supposed to be of “ordinary fortitude”. There was no reason for Culligan to suspect that upon seeing that fly, Mr. Mustapha would meltdown like the Wicked Witch of the West in Oz.
However, there is hope for future consumer victims. The Court went on to say that liability would be different where there was evidence that the defendant knew of the plaintiff’s unusual sensitivities. Then such reaction would be reasonably foreseeable. The trick therefore for consumers is to make sure sellers of products are aware of their sensitivities.
All of us should consider this ruling seriously and get the news out there about our psychological quirks. Maybe we can do it on the Web, like on Facebook. We can put our profiles on and highlight crucial information, such as:
“I am a Capricorn ballroom dancer and I would crack up totally were I ever to see a dead fly in my Culligan water.”
Or more directly, we can tell the gentleman delivering the water tanks, “Good morning sir. Before you bring those 18 litre tanks into my house, please ensure there are no flies inside. If I was to look and see one, I would turn into Attila the Hun”
And this suggestion applies equally to other products. When you go to Wal-Mart, just say to the smiling greeter, “I am coming here to buy a pair of pants. I have certain sensitivities. I’ll sue Wal-Mart for all they have if I try on a pair and find a dead raccoon inside.”
The important thing is for the potential defendant to have notice of your sensitivities. Lack of notice, unfortunately for Mr. Mustapha, turned out in this case to be the fly in the ointment.
Mustapha sued Culligan and was successful. The trial judge awarded him over $300,000 in damages. Culligan appealed and the Ontario Court of Appeal said, “uh uh”, (not an uncommon legal maxim). They dismissed the plaintiff’s case.
Mustapha appealed to the Supreme Court, which agreed with the Court of Appeal and Culligan.
Of interest is that Mr. Mustapha came close to winning. And I have ideas how to ensure that others in Mustapha’s shoes can win in future.
The Court did find that Culligan owed Mr. M a duty of care. It also held that Culligan breached that duty in that a drinking water supplier is not supposed to sell pure spring water containing non requested extras, such as drifting flies. It furthermore even agreed that the plaintiff suffered big time and legitimate psychological damage. BUT, it held that such damage was not reasonably foreseeable. The law says that consumers are supposed to be of “ordinary fortitude”. There was no reason for Culligan to suspect that upon seeing that fly, Mr. Mustapha would meltdown like the Wicked Witch of the West in Oz.
However, there is hope for future consumer victims. The Court went on to say that liability would be different where there was evidence that the defendant knew of the plaintiff’s unusual sensitivities. Then such reaction would be reasonably foreseeable. The trick therefore for consumers is to make sure sellers of products are aware of their sensitivities.
All of us should consider this ruling seriously and get the news out there about our psychological quirks. Maybe we can do it on the Web, like on Facebook. We can put our profiles on and highlight crucial information, such as:
“I am a Capricorn ballroom dancer and I would crack up totally were I ever to see a dead fly in my Culligan water.”
Or more directly, we can tell the gentleman delivering the water tanks, “Good morning sir. Before you bring those 18 litre tanks into my house, please ensure there are no flies inside. If I was to look and see one, I would turn into Attila the Hun”
And this suggestion applies equally to other products. When you go to Wal-Mart, just say to the smiling greeter, “I am coming here to buy a pair of pants. I have certain sensitivities. I’ll sue Wal-Mart for all they have if I try on a pair and find a dead raccoon inside.”
The important thing is for the potential defendant to have notice of your sensitivities. Lack of notice, unfortunately for Mr. Mustapha, turned out in this case to be the fly in the ointment.
Mustapha is a Windsor hairdresser.
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