Thursday, May 22, 2008

$300,000 damage award for fly in water bottle

OTTAWA - The country's top court has swatted down a $300,000 damage award to a man who says he became depressed, anxious, obsessive and phobic about flies after finding a dead insect in his bottled water.

The Supreme Court of Canada, in a 9-0 judgment Thursday, agreed that Martin Mustapha, a hair stylist from Windsor, Ont., suffered real psychological harm as a result of the incident.

But Chief Justice Beverley McLachlin, writing for the court, said his reaction was so "unusual or extreme" that the bottling company, Culligan of Canada Ltd., shouldn't have to pay compensation.

The ruling means Mustapha, who won a judgment for $341,000 plus interest three years ago, won't get to collect that money. In fact, he'll have to shell out thousands in court costs assessed against him.

Mustapha, reached at his hair salon in Windsor, expressed disappointment and continued to insist that he's been treated unfairly.

He used to drink bottled water precisely because it was supposed to be better than the liquid that came out of the tap, he said. Finding that it wasn't as pure as advertised devastated him.

"I'm just the type of person that is very clean and cautious about the health and well-being of myself and my family. . . . It was a breach of trust (by Culligan), it was a betrayal of that trust."

Hillel David, the lawyer representing the bottling company, warned at a court hearing in March that upholding Mustapha's claim could open the door to a flood of spurious lawsuits for vaguely defined psychological damages.

But Paul Pape, the lawyer for Mustapha, said Thursday there is no question his client's case was sincere and serious.

"Because the circumstances of how this happened were so unusual, people giggled," Pape said from his Toronto law office.

"It put him in a difficult position, but he was strong enough to stand up and be heard and take his turn in court. Unfortunately, he came up short."

Eric Rosenthal, vice-president of marketing at Culligan's head office in Rosemount, Ill., wouldn't comment in detail on the case but welcomed the Supreme Court decision.

"One of our biggest priorities is to make sure we deliver a safe drinking product," said Rosenthal. "This was an unusual lawsuit. . . . We have not faced anything similar to this in our history."

Mustapha sued after he spotted a dead fly - and later half of another one - in a large, unopened bottle of water delivered for use in his home dispenser in 2001.

He never drank any of the water, but said he became obsessed with thoughts of dead flies, couldn't sleep and was constantly on edge - to the point where his business and even his sex life suffered.

He was diagnosed by several doctors as suffering from severe depression, anxiety and phobias and was awarded damages by Ontario Superior Court in 2005.

That decision was overturned a year later by Ontario Court of Appeal, which ruled the trial judge had applied the wrong legal test for compensation.

The appeal panel also ordered Mustapha to pay Culligan's court costs of roughly $30,000 to that point. He will be hit with the bill for costs at the Supreme Court as well, under the "loser pays" formula that applies to most such cases in Canada.

McLachlin, in her ruling, agreed that medical evidence presented at trial established that Mustapha suffered a "psychiatric illness (that) was debilitating and had a significant impact on his life."

She also noted that it's clear a supplier of bottled water "is under a duty to take reasonable care to ensure that the water is not contaminated by foreign elements."

But the legal test for damages, she said, is whether a person of "ordinary fortitude" would suffer psychological harm. In Mustapha's case, she concluded, the reaction was so unique that Culligan couldn't reasonably have foreseen the consequences and thus shouldn't be liable for compensation.

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