Top court dismisses fly-in-water case

Canada's top court has unanimously dismissed the case of a man suing a company for psychological damages he says he suffered after finding a dead fly in his water bottle.

Canada's top court has unanimously dismissed the case of a man suing a company for psychological damages he says he suffered after finding dead flies in his water bottle.

The Supreme Court of Canada ruled Thursday that Waddah Mustapha is not entitled to compensation after finding a fly in his water bottle, and ordered him to pay Culligan of Canada's court costs. ((CBC))

The Supreme Court of Canada was examining whether Culligan of Canada Ltd., a company that supplies big blue water bottles used in home dispensers, had a duty of care to Waddah (Martin) Mustapha and his family, and whether the psychiatric harm Mustapha suffered as a result of discovering the flies was foreseeable.

The Windsor, Ont., man has maintained that the discovery of one and a half flies in the large water bottle triggered depression, phobia and anxiety that affected his work and even his sex life. He was seeking more than $300,000 in compensation.

In a 9-0 ruling issued Thursday, the Supreme Court decided that the damages Mustapha claimed to have suffered, while imaginable, were not foreseeable. Because Mustapha's reaction could not have been predicted, the court decided Culligan could not be liable.

"[Mustapha] failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. Unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable," the decision read.

The court decided the psychological damages suffered by Mustapha were "too remote" to justify the $341,775 in compensation he was seeking, and ordered him to pay the company's court costs.

"To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance," the ruling read.

Mustapha has said he vomited when he and his wife spotted a whole fly and part of another fly in their unopened water bottle in November 2001. The couple were cleaning the water bottle's neck at their home when they saw the insects.

He has complained that after the incident, he had trouble drinking coffee because it contained water and became anxious about getting in the shower. He said he couldn't get rid of the revolting image of dirty flies in his supposedly pure water.

In 2005, the Ontario Superior Court awarded him $341,775 plus interest in the case. The ruling was overturned the following year in a unanimous decision from the Ontario Court of Appeal.

The appeal court said that Culligan could not have foreseen the events that transpired, and it noted that neither Mustapha nor his family drank water from the bottle.

'Uphill battle,' says lawyer

Mustapha told CBC News on Thursday that he respects the fact the Supreme Court gets the final word on any subject.

"Justice prevailed; this is the Supreme Court of Canada," he said at his Windsor hair salon. "In their view, this is how it is supposed to be. In my view, I don't think it should have been that way."

Mustapha's lawyer Paul Pape acknowledged the odds were against his client in this case.

"This is the sort of case that people giggle about, and when you're fighting that sort of fight, it's an uphill battle," he told CBC News on Thursday. "What's ironic is there are a number of issues that we fought that we were successful on."

CBC reporter Rosemary Barton said the case effectively closes the door to other cases of psychological harm without injury that may come before the court.

"Others may try, but the Supreme Court has now set a precedent saying that there are certain standards that must be met if people endure psychological damages without physical injury," she said.

The law in the area of psychological injuries still needs to evolve, said Bruce Feldthusen, a law professor at the University of Ottawa.

"There's no question this person suffered a serious injury," Feldthusen told CBC News. "This was not a faker, and sooner or later, I think the progress of the law will be to address real and serious injury."

With files from the Canadian Press