Thursday, May 22, 2008

In which I try to argue tort law

Law Is Cool: “Dead fly in water bottle” case to be decided by Supreme Court tomorrow

Wait a tick, doesn’t fly in the face of the thin-skull rule? Either Mr. Mustapha was reasonable in his reaction, and the basic nervous shock doctrine applies, or he was unreasonable due to a pre-existing “obsessive” personality. The tortfeasor must take the victim as he finds him.

I’m looking at Vorvis v. Insurance Corporation of British Columbia ([1989] 1 S.C.R. 1085) for this. Once some harm was foreseeable, the company should be liable for the whole thing.

I thing some harm is foreseeable from dead bugs in your water. Given that Culligan recruited Mr. Mustapha on the basis of the cleanliness of their water (”a representative of Culligan called on him and represented to him at length how pure and healthy Culligan water was, including how it would benefit pregnant women and children, and how much better it was for someone than city water.”) and that he had a contract with them for fifteen years … it just seems pretty reasonably foreseeable to me. But it’s not mentioned anywhere in any of the cases.

I hope the SCC will deal with it, since it’s implicated enough that it should be included in their discussion, and since it’d be nice to have some juicy POST-1980s case law on the subject. (crossposted)

Go read the rest of the comments too

Law Is Cool: Follow-up: SCC tosses “dead fly” appeal

I still think this analysis suffers GREATLY from a lack of discussion of the thin-skull rule, and here’s why: if the complainant was regular dude who reacted this way, then okay, unreasonable. But from what I can glean from the decision, he showed more than a few signs of OCD. His obsession with cleanliness was not only potentially pathological, but it was the vary trait to which Culligan marketed! Hence pre-existing condition, hence thin-skull application. I’m not saying it would have been successful, mind you, just that I’m disappointed it wasn’t argued.

Of course, the SCC seems to have been constrained by the lack of discussion in the lower courts, which implies to me that the issue wasn’t plead. Que sera, sera.

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