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| Marcel Strigberger |
OUZO J.: This is an action by the plaintiff arising out of the consumption by him of hemlock served by the defendant, the Republic of Greece (the Republic), and manufactured by the defendant, Olympus Bigpharm Ltd. (Bigpharm).
The facts are simple.
The plaintiff is a prominent philosopher. Two years ago he was convicted of corrupting the youth in contravention of Section 13 of the Corrupting the Youth Act, which reads:
Any person who knowingly corrupts the youth is guilty of a felonious offence punishable by a minimum sentence of death.
Just prior to his execution by drinking some hemlock, the plaintiff was asked by the jailer, one Zeno the Elder, whether he had any last requests. The plaintiff, rather perturbed at this stage, said, “I could sure use a good drink.” The jailer thereupon gave him a flask of Metaxa brandy, which the plaintiff hastily gulped down. Zeno the Younger, the jailer’s son, then poured the hemlock into a goblet. The plaintiff drank the hemlock, but he did not die instantly as expected. Instead, he developed a sudden severe skin rash all over his body.
The Zenos were astonished. The authorities were baffled and, fearing this to be an omen from the gods, immediately released the plaintiff. The skin rash persisted, and the plaintiff sent a letter to Bigpharm complaining about his reaction. The defendant promptly replied as follows (Exhibit 5):
Dear Sir,
Thank you for bringing this matter to our attention. As you know, all our products are subjected to stringent quality control. We have examined the sample sent to us by the Republic, and we have found nothing wrong with it. As a gesture of good faith, however, we are sending you with our compliments a case of Bigpharm hemlock.
Sincerely,
Xenoppedopolous (pronounced Xenoppedopolous)
Public Relations
The plaintiff subsequently commenced this action.
Liability
Bigpharm argues that the plaintiff’s damages are unforeseeable and remote. Evidence was given that Bigpharm has been the purveyor of hemlock to the Republic for over 100 years and that there have never been any complaints, other than some isolated suggestions about the product having an aftertaste.
Counsel suggests that Bigpharm was transparent throughout, enabling the plaintiff to make an informed consent about drinking the hemlock. I disagree. The defendant clearly owes a duty to its potential consumers to unequivocally warn them of all potential side effects if they consume the product. I find that in this case the defendant did not go far enough merely by affixing a label on the bottle bearing the inscription: “Shake well before using.” The court makes a finding of negligence against this defendant.
As for the Republic, the plaintiff argues that it was negligent in the way it executed its execution. He says that he relied upon the representations of the defendant’s agents, the Zenos, that the hemlock would knock him out with the speed of Hermes. Had he known otherwise, he would have asked for another form of execution, like being thrown into a wrestling ring with two Spartan women.
The Republic argues that the plaintiff undertook a voluntary assumption of risk. Counsel argues that the skin rash resulted from a chemical change in the plaintiff’s body as a consequence of the interaction of the hemlock with the Metaxa, which was requested by the plaintiff. The Republic attempted to file as proof of this proposition a report of its deputy soothsayer containing his findings and conclusions of his examination of a calf’s entrails. On the objections of counsel for the plaintiff, the court did not admit this evidence as the defendant neglected to serve a copy of this report at least seven days before the trial. The provisions of the Evidence Act are crystal clear concerning the opinions of experts including physicians, toxicologists and soothsayers.
I find that the Republic was also negligent.
This leads the court to adjudicate upon the claim over the Republic has instituted against Bigpharm. The Republic relies on the provisions of Section 15(2) of the Sale of Goods Act and claims that the hemlock sold to it by Bigpharm was not merchantable. Section 15(2) reads:
2) Where goods are bought by description from a seller who deals in goods of that description there is an implied condition that the goods will be of merchantable quality, but if the buyer has examined the goods, there is no implied condition as regards the effects that such examination ought to have revealed.
Bigpharm argues that the Republic in fact examined the hemlock prior to purchase, in that a representative of the Republic, one Pappanodekolis (pronounced Pappanodekolis), attended at the Bigpharm plant before ordering the hemlock in question. He followed the usual practice, bringing along with him three slaves to sample the product. He testified that two of the slaves overpowered him and fled. The third slave did indeed sample the hemlock. Mr. Pappanodekolis ought to have realized at the time that there was something wrong with the hemlock when the slave, instead of dropping down, delusionally asked, “Is this the Pepsi?”
The court finds that the exclusionary provision of Section 15 applies and the claim over is dismissed. I apportion liability to the plaintiff equally between the two defendants.
Damages
We now turn to damages. The plaintiff’s dermatitis (pronounced dermatitis) prevented him from resuming his duties as a philosopher in the marketplace for over 18 months. This resulted in a loss of income of about 9,000 drachma, which the court accepts.
As for general damages for pain and suffering, the dermatitis is all over his body. The assessment here is more difficult as all the physicians in Greece have been afraid to examine the plaintiff for fear of contracting his rash. The plaintiff testified that even when he confronted Dr. Hippocrates, the good doctor replied, “What oath?”
I have considered this matter carefully and in view of the gravity of the dermatitis, the profound effect it has had upon the plaintiff’s personal and social life and furthermore, in view of the fact that insurance companies will be paying for all of this, I assess general damages at 20,000 drachma.
Judgment accordingly.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X @MarcelsHumour.
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