Humpty Dumpty v. The King et al.

By: Marcel Strigberger

Humpty Dumpty v. The King, All His Horses, All His Men, And Funcola Limited

TUMBLE J.: This is an action for damages arising out of a fall off a brick wall (hereinafter referred to as "the wall"). The wall is located on lands owned by the King of Looking-Glassland on Mad Hatter Street near municipal number 7 5/8 .

Paragraph 5 of the plaintiff’s statement of claim sets out the chronology of events in a nutshell:

5. The plaintiff sat on the wall, The plaintiff had a great fall, All the King's horses and all the King's men, Couldn't put the plaintiff together again.

It seems that for many years the defendant King leased the wall to the plaintiff for the summer season commencing June 15th and ending on Labour Day. The plaintiff would then climb to the top of the eight-foot high wall where he would sit during the summer days. Thousands of tourists visited the wall each year to catch a glimpse of this landmark and to take pictures. The plaintiff would charge a small fee for having his picture taken with a visitor or for holding the visitor's child on his lap for a few minutes and asking the child what he or she had done during the school year and so on. His income was supplemented from the sale of postcards and souvenirs.

On July 1st, 1999, a child known as Alice was visiting the wall. At about 2:00 p.m., she purchased a bottle of Funcola from the refreshment stand owned by the King and located adjacent to the wall about fifteen feet away. As she was attempting to open the bottle, it exploded with a loud bang. Nobody was injured from the bottle itself but the sudden and loud noise apparently startled the plaintiff so that he lost his balance and fell off the wall, and shattered himself. An alarm for help was sounded but the King's horses and the King's men did not arrive at the wall until about one hour after the accident at which time they could no longer put the plaintiff together again.

The trial lasted for four days and the defendants did not leave a stone unturned in presenting their respective defences. All the defendants immediately took the position in their pleadings that the plaintiff did not suffer any damages. They did however go on to plead that if he did suffer damages, which was expressly denied, then these damages were remote and were further not mitigated by the plaintiff.

It is interesting to note that paragraph 6 of each of the statements of defence is identical and reads as follows:

6. The defendant(s) pleads that if the plaintiff sustained any damages, which is expressly denied, then these damages were caused by his own negligence in that: (a) He failed to keep a proper lookout; (b) He wore improper footwear; (c) He created an emergency and a situation of danger; (d) He fell off the wall at an excessive rate of speed; (e) He did not have his seat under proper control; (f) He failed to exercise such caution as was warranted under the circumstances; (g) He was incompetent, lacking sufficient skill to sit on the wall; (h) He should have worn ear muffs;

At the opening of the trial counsel for the horses, Mr. Tweedledum, brought an application to have this action dismissed as against his clients on the ground that the horses were improperly joined as defendants. Reference was made to section 1(g) of the Judicature Act which says:

(g) Defendant includes a person served with a writ of summons ..

and to section 28 of the Interpretation Act which reads:

28. Person or any word or expression descriptive of a person, includes a corporation.

I could see nothing in these provisions that would tend to restrict the meaning of the word "person" or that would tend to suggest that horses are excluded from the definition.

Counsel also referred the court to the case of Osburne v. Chocqueel, [1896] 2 Q.B. 109, which he argued was authority for the proposition that a goat is not a person. He asserted that, in principle, the Osburne case and the case at bar are on all fours.

I was not convinced. It would be inviting a flood of litigation to hold that because a goat is not a person, a horse is not a person. In any event the principle enunciated in the Osburne case that a goat is not a person is obiter.

I found more persuasive the reasoning of counsel for the plaintiff, Mr. Tweedledee, who contended that when a statute uses a word, it means just what it intended it to mean, neither more nor less. Mr. Tweedledee also referred the Court to the American decisions, United States v. One Black Horse, 129 Fed. 167 (1904) and United States v. Two Bay Mules, 36 Fed. 84 (1888); the latter is a decision of the District Court of North Carolina.

The motion by the horses was accordingly dismissed.

During the course of the trial many witnesses gave evidence. Funcola Limited (hereinafter referred to as Funcola) called the little girl Alice, who testified that she warned the plaintiff minutes before the accident that the top of the wall was rather narrow and that he might fall off.

Counsel for the plaintiff objected to the child being sworn on the ground that she was of tender years and that accordingly she would not understand the nature and consequences of giving evidence under oath. I questioned her carefully to determine whether or not she could be sworn:

The Court: Hello Alice, how old are you? Alice: Seven and a half your honour. The Court: Your Lordship, yes . . . And do you know what happens if you tell a lie while under oath? Alice: Yes sir, the Cheshire Cat eats you!

I was satisfied; the child was sworn.

Several issues with respect to liability present themselves. Looking first at Funcola, it is trite law that in a common law jurisdiction there can be no negligence in the air. There must be a duty owed to a foreseeable victim and a breach of this duty resulting in damages of a foreseeable type to the foreseeable victim constitutes negligence for which there is a remedy.

Both sides called experts in the law of negligence to give their respective opinions about the exploding Funcola bottle. The plaintiff subpoenaed a most formidable authority, namely, the man on the Clapham Omnibus. This witness' qualifications were impressive indeed. He advises that he has been riding the Clapham Omnibus for over seventy years since McQuire v. Western Morning News Co. Ltd., [1903] 2 K.B. 100 when he was first called off the bus and into court. He has taught at numerous law schools and has appeared in courts throughout the British Commonwealth an inestimable number of times to give his opinion on what he would have done were he in the defendant's shoes.

When examined in chief by counsel for the plaintiff, the man from the Clapham Omnibus suggested that were he a soft drink manufacturer, he would have every single bottle pre-opened at the bottling plant to test for potential explosions. He would also stick labels on every bottle bearing in large red letters the warning, "Caution; not to be opened near walls . . . could make boom".

It was submitted by the plaintiff that the taking of precautions short of those suggested by the man from the Clapham Omnibus amounted to wanton and reckless disregard towards the public.

The defendant, Funcola, also subpoenaed an expert in the law of negligence, as formidable as the plaintiff's witness, namely, the ordinarily prudent man. He indicated that lengthy rides on omnibuses made him queasy and that in fact he was sometimes referred to as "the man on the street". But his qualifications on the subject were no less impressive than those of his motoring counterpart, and they included years of experience not only in the common law but also in the civil law jurisdictions where he is known as "paterfamilias diligens".

His opinion was in sharp contrast with the opinion of the man from the Clapham Omnibus. He advised that if he were in Funcola's shoes, he would bottle the pop in the manner currently in practice. He said that he would place no warning labels whatsoever on the bottles as the chances of a bottle exploding if the usual standards and procedures are adhered to is one in millions. Also speaking as an ordinarily prudent businessman, he cautioned that the manufacturer's sales could plummet sharply because of the undue alarm that would be generated by warning labels, as an ordinarily prudent man would sooner forgo the drink than engage in a round of Russian Roulette.
Both expert witnesses agreed, incidentally, that they would have come to court at the request of counsel and without subpoena.

After carefully weighing the evidence with respect to the plaintiff, and Funcola, it is not without difficulty that I rule in favour of the plaintiff and hold that Funcola was negligent. I might add that my decision is in no way affected by the fact that any damages assessed against this defendant will be borne by its insurers.

I turn now to the issue of liability between the plaintiff and the King. It is agreed that the King's servants operated the refreshment stand which sold tarts, tea and pop, the latter in bottles. It is apparent from the word "pop" that this substance entails the making of a noise, I have no hesitation in finding that it has the potential of going from a tame "pop" to a monstrous "boom" and that it could do mischief if it escapes. I find that the owner must keep this substance at his own peril and that the case at bar with respect to these two parties clearly falls within the rule of Rylands v. Fletcher. I may add that the plaintiff was not only struck by the loud boom but that he was also squirted by some of the passing Funcola which stained his new cravat that the King had given to him the day before as an unbirth-day present.

His Majesty seeks to exonerate himself from liability by relying on a large sign hanging on the back of the wall reading:

Not Responsible for Loss or Damage to Vehicles or Contents However Caused". The back of the wall incidentally faces a parking lot.

I find that the defendant is grasping at straws; there was no evidence before the court suggesting that the sign was brought to the plaintiff’s attention. Furthermore the plaintiff fell off the wall and landed about five feet away from his car. At that distance from the car he cannot be considered to come within the meaning of the word "contents". We finally turn to the King's horses and the King's men. Looking-Glassland does not have a full time emergency force. If an emergency does arise, it is dealt with by a volunteer brigade consisting of all the King's horses and all the King's men. The brigade can sometimes be seen performing such tasks as pursuing knaves who steal the Queen's tarts or removing cats from trees (or grins where the cat may have vanished leaving only a grin behind).

On the day in question, the evidence is that an alarm was sounded for all the King's horses and all the King's men to rush to the wall to help put the plaintiff together again. It seems that instead of responding to the alarm, they all went to the playground to participate in the Queen's croquet tournament.

It is contended on behalf of these defendants that the law with respect to non-feasance is well settled; that it is not a tort to leave a neighbour to drown or his house to burn down however easily one might avert these misfortunes. Reference is made to Sheppard v Glossop Corporation, [1921] 3 K.B. 132 where the Corporation decided capriciously to extinguish early in the evening a certain street lamp. The plaintiff soon found himself stumbling around in the dark until he stepped over a retaining wall and injured himself. The Plaintiff obtained judgment at trial but this decision was reversed on appeal where Bankes L. J. went on to say:

The defendants were under no obligation to place a lamp post at this particular spot; having placed it there they were not bound to keep it there; and if they kept it there they were not bound to supply it with gas, and are not to be made liable for merely extinguishing it at a particular hour

Although I find this principle rather provoking, I cannot disregard it summarily without authority. Counsel for the plaintiff propounds the case of Orr v Fleeming, 2 Macq. H.L. Cas. 14 where in similar provoking circumstances that noted Scottish jurist Lord Cockburn said, "I do not attach any weight to the law of England".

There will be judgment against all the King's horses and all the King's men. Liability will be apportioned equally among the four classes of defendants.

Turning now to assess damages, the plaintiff is built and shaped like an egg with hands and feet. The fall caused cracks to over 80% of his body. Since the accident he has been attending a physiotherapy clinic but improvement has only been gradual.

The fall has also affected the plaintiff emotionally, and he advises that he is now terrified of heights.

His potential for earning income in the future is also not promising. There is some suggestion that he may do public relations work for a potato chip company but this is mere speculation.

The defendants all argue that it would be unduly harsh to apply the theory of the "egg shell" victim to this case. I do not agree. I see no reason for departing from the well founded principle that a tortfeasor takes his victim as he finds him. The theory applies equally to an eggshell skull, eggshell ribs or an eggshell pelvis albeit it may be difficult in this case to discern where one ends and the other begins.

I have no hesitation in assessing general damages herein at, let me see, $50,000.00. The parties all agree that special damages amount to $253.88, including the sum of 88 cents for the cost of removal of the stains from the plaintiff’s cravat.

The plaintiff will also have his costs.

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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.