Socrates v. Greece, et al.
Tuesday, November 27, 2007 at 00:00
By: Marcel Strigberger
Socrates v. The Republic of Greece and Hokos Pokos Pharmaceuticals Limited
OUZO J.: This is an action by the plaintiff for damages arising out of the consumption by him of a portion of hemlock served to him by the defendant, The Republic of Greece (The Republic) and manufactured by the defendant, Hokos Pokos Pharmaceuticals Limited (Hokos Pokos).
The facts are simple. The plaintiff is a prominent philosopher born in Athens seventy-three years ago, ten years after the Battle of Salamis. He has three children and is married to one Xanthippe (pronounced Xanthippe).
Two years ago he was charged with two counts of corrupting the young in contravention of Section 1321 of the Criminal Code, which reads:
Any person who knowingly corrupts the young is guilty of: (i) An indictable offence and shall be sentenced to death; (ii) An offence punishable on summary conviction.
The prosecution proceeded by way of indictment and the plaintiff was convicted on each count. He was sentenced to death on each conviction, sentences to run concurrently. He decided not to appeal after reviewing the matter carefully with duty counsel.
The execution was to have taken place three weeks later in the plaintiff’s cell, where he was to drink two tablespoons of hemlock. Just prior to his execution, 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 small flask of Metaxa brandy, which the plaintiff hastily gulped down. The plaintiff then said that he was all set and Zeno the Younger, the jailer's son, proceeded to pour two tablespoons of hemlock manufactured by Hokos Pokos into a goblet and handed the goblet to the plaintiff. The plaintiff drank the hemlock and he was expected to die almost instantly. But he did not die. Instead, he developed a sudden and severe skin rash all over his body.
The Zenos were astonished. The authorities were baffled, fearing this to be an omen from the gods, and they immediately released the plaintiff. The skin rash persisted and the plaintiff sent a letter to Hokos Pokos complaining about this side effect. The defendant promptly replied as follows (Exhibit 5):
Thank you for bringing this matter to our attention. As you know, all our products are subjected to stringent measures of quality control. We have examined the sample sent to us by the Republic and we must say that we have found nothing wrong with it. As a gesture of good faith, however, we are sending you under separate cover, with our compliments a case of Hokos Pokos hemlock and other fine Hokos Pokos products.
The plaintiff subsequently commenced this action. Let us first consider the possible liability of Hokos Pokos. This defendant argues that the plaintiff's damages are unforeseeable and remote. Evidence was led that Hokos Pokos has been the purveyor of hemlock to the Republic for over one hundred and twenty years and that there never have been any complaints. The president of Hokos Pokos did, however, admit in cross-examination, that there had been some brief and isolated complaints in the past about the hemlock having an after-taste. Counsel suggests that the plaintiff survived the hemlock only as a result of a physiological idiosyncrasy. This argument does not hold water. It is well established in law that a tortfeasor takes his victim as he finds him. It is just too bad for this defendant that the plaintiff has eggshell skin. The defendant clearly owes a duty to its potential consumers to unequivocally warn them of possible 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.
Focusing on the issue of liability of the Republic, the plaintiff argues that the Republic was negligent in the way it carried out its abortive execution. He says that he relied upon the representations of the defendant that the hemlock would knock him out with the speed of Hermes and had he known otherwise, he would have asked for another form of execution, perhaps to be thrown into a wrestling ring with two Spartan women.
The Republic argues that the plaintiff undertook a voluntary assumption of risk. Counsel has attempted to persuade the court that the skin rash resulted from a chemical change in the plaintiff’s body as to consequence of the contact of the hemlock with the Metaxa, and that it was the plaintiff who requested the Metaxa. 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 could 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 concerning the opinions of soothsayers and physicians are clear on this point.
I have no hesitation in holding that the Republic was negligent and is liable to the plaintiff for damages.
This leads the court to adjudicate upon the third party claim which the Republic has instituted against the defendant, Hokos Pokos. 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 Hokos Pokos was not merchantable. Section 15(2) reads:
Subject to this act, and any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract for sale, except as follows:
2) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or not) 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.
The third party argues that the Republic in fact examined the hemlock prior to purchase.
The evidence is that a representative of the Republic, one Pappanodekolis (pronounced Pappanodekolis) attended at the Hokos Pokos plant before ordering the hemlock in question. He followed the usual practice and brought along with him three slaves to sample the product. He testified that two of the slaves overpowered him and fled minutes before they were to have tasted the hemlock. 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 to the ground, turned around and asked "Is this the Pepsi"?
The court finds that the exclusionary provision of section 15 applies and the third party action is dismissed with costs. I apportion liability to the plaintiff equally between the two defendants.
We now turn to the issue of damages. The plaintiff’s dermatitis prevented him from resuming his duties as a philosopher in the market place for over eighteen months. This resulted in a loss of income of about 9,000 mena. During this period, however, he recovered the sum of 9,000 mena from the Phaedo Assurance Company pursuant to a policy of disability insurance taken out by him prior to his arrest on the advice of his close friends, Aristophenes, a lawyer who sells insurance on the side. Both defendants argue that this compensation ought to be taken into account in determining an award for loss of income. I do not agree. It is trite law as well as common sense that a plaintiff who suffers pecuniary loss ought to recover twice for this loss. I might add that my decision is in no way influenced by the plaintiff’s comments that in any event he will give it all to charity.
Turning to general damages, the Plaintiff has been suffering from severe dermatitis all over his body for over two years. The problem is more concentrated on certain parts of his body and the severity of the problem was made evident to the court when the Plaintiff advised that he had to stand even during the examinations for discovery. His enjoyment of life has certainly been lessened. The assessment of general damages in this case is made all the more difficult as there was no medical evidence before the court as all the physicians in Athens were afraid to draw too close to the plaintiff for fear of contracting his rash. The plaintiff testified that even when he called upon Dr. Hippocrates several times the nurse always told him that the doctor had just gone fishing. Even the plaintiff’s colleagues and students have kept their distance from him. One of his students, Plato, recently asked the plaintiff whether he would be interested in teaching a correspondence course in metaphysics.
The assessment of general damages is never a simple task. I have considered this matter carefully and in view of the gravity of the dermatitis and the profound effect it has had upon the Plaintiffs 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 mena. I see no reason why costs should not follow the event.