The Eggshell Skull Rule: A Critical Analysis
Synopsis & Introduction
The objective of this project is to critically analyse the validity of the "Eggshell Skull Rule". The reason behind choosing this particular rule to study, is its uniqueness. The rule emphasizes on the condition of the plaintiff rather than what a typical or average person would experience. This is in contrast to other rules in tort law.
Let us better understand this rule with the help of a simple example; A pedestrian has a rare bone disorder that makes their bones extremely brittle. While crossing the street, they are hit by a car traveling at a moderate speed. The pedestrian suffers multiple fractures and requires extensive medical treatment. The court held the driver of the car liable for the full extent of damages even though he was unaware of the pedestrian's disorder. The court's verdict was based on the well know doctrine of talem qualem, or in simpler words, the eggshell skull rule.
The eggshell skull rule, is "The rule that makes the defendant liable for the plaintiff's unforeseeable and uncommon reactions to the defendant's negligent or intentional tort. If the defendant commits a tort against the plaintiff without a complete defence, the defendant becomes completely liable for any injury that is magnified by the plaintiff's peculiar characteristics." [1] The anomaly in this doctrine lies in the fact that liability will be imposed on the defendant although the plaintiff's injury was absolutely unforeseeable. This apparently renders the Broken Eggshell Rule completely unfair as it can result in the imposition of unreasonably exorbitant damages on the defendant.
Though this is the author's personal opinion, many learned scholars vociferously opine that the eggshell liability is indispensable for the tort law to be able to serve as a strong deterrent.[2] The rationale behind their opinion is that if liability were to be imposed merely on reasonably foreseeable acts, then it would unintentionally encourage tortfeasors to avoid taking adequate precautions and to instead, figure out loopholes to evade liability.
The author shall question the validity of this rationale along with other things in the forthcoming parts of this project.
Literature Review:
The fact that the authors of all the aforementioned books have provided a clear and comprehensive explanation of the eggshell skull rule, illustrating its application through relevant cases and hypothetical scenarios, has indeed made these an indispensable set of reference for the author's project.
Statement Of Problem
The "Eggshell Skull" rule does not conform to even the most rudimentary principles of tort law. It requires to be replaced by an alternative rule that would enable defendants to have a clearer understanding of the extent of their potential liability.
Hypothesis
The "Skull Crush" rule is a viable alternative to the "Eggshell Skull" rule because of its fairness in liability and because, by focusing on foreseeable harm, the skull crush rule encourages defendants to manage risks based on reasonable expectations rather than holding them accountable for unforeseeable extreme outcomes. It is also more practical because it can reduce the potential for excessive litigation by encouraging settlements.
Research Questions
Evolution Of The Rule
The origins of the "Eggshell Skull" rule can be traced back to the landmark case, Vosburg v Putney[3], which had been argued before the Supreme Court of Wisconsin in 1889. In its nascent stages, the rule was nothing more than a concept that fell short on form. In this particular case, the defendant (George Putney [14 y.o.]) had, without the intention of causing hurt, slightly kicked the plaintiff (Andrew Vosburg [11 y.o.]) in his upper shin. Unbeknownst to Putney, Vosburg was already injured in the leg in which he had been kicked, because of a prior sledding accident.
Consequently, the kick exacerbated the existing injury. Putney's actions caused Vosburg to suffer bone destruction. Holding Putney, the defendant liable, the court stated that "The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him."[4]
This case was responsible for setting a precedent for numerous cases that would be fought in the years to come. One of these cases was Keegan v. Minneapolis & St. Louis Railroad (1899)[5], which had been argued before the Supreme Court of Minnesota. The plaintiff sprained his ankle.
He was subsequently attacked by "Articular Rheumatism" and passed away due to a related medical condition by the name of "Endocarditis." The court ruled that since the bodily injury suffered by the deceased on account of the negligence on the part of the defendant, was the proximate cause of the disease (articular rheumatism) which caused the plaintiff's death, damages could be recovered not merely for the disease, but for the death of the plaintiff itself.
The genesis of the term "Eggshell Skull Rule" however, lies in a very well-known case, Dulieu v. White & Sons (1901)[6], argued before the High Court King's Bench. In this case, the plaintiff, a pregnant woman suffered a "nervous shock" because of a horse-carriage crash which resulted in her giving birth prematurely and in the child suffering from major developmental complications. The court, inspite of the plaintiff not having suffered any physical injury, awarded the plaintiff damages, because, in the words of the judge, Kennedy J. himself, "It is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart."[7]
Expansion Of The Rule
The extent to which the scope of the "Eggshell Skull Rule" or the "Thin Skull Rule" has broadened cannot be understated. After the aforementioned initial landmark cases, courts began using the rule more widely and laid down the rule in a set of categories.
The very first category was laid down in Reed v. Union Pacific Railroad Co (1999), which was argued before the Seventh Circuit of the United States Court of Appeals.[8] It was held that the rule will be made applicable strictly in scenarios where the actions of the defendant have resulted in the plaintiff suffering a latent condition.
The next category held that; should a subsided or an antecedent condition be revived on account of the defendant's lack of due care, such a rule will be applicable. Under this category, the "eggshell skull rule" could apply to cases where emotional distress or psychological conditions are significantly worsened due to negligence on the part of the defendant (for example, in cases of negligent infliction of emotional distress), to determine the extent of liability. Doe v. Manheimer (1954)[9] is a case that can serve as a perfect example of this.
The third category affirmed that the rule could also apply to cases where the medical negligence of the defendant leads to complications in a patient with pre-existing health issues, the defendant (typically a healthcare provider) can be held responsible for worsening the patient's condition, even if the patient was already in a fragile condition. Hotson v. East Berkshire Area Health Authority (1987)[10] is a significant case in English law that could serve as a good example of this. In this case, the plaintiff had a pre-existing condition of a weakened leg due to a vascular disease.
The defendant hospital negligently failed to diagnose a fracture in the plaintiff's leg, leading to permanent damage. The House of Lords held that the defendant was liable for the exacerbated harm caused to the plaintiff's leg, applying the principle that the defendant must take the patient as they find them, including any pre-existing vulnerabilities.
The rule has also been extended to mental injury and economic loss. In the case of Colonial Inc Motor Lodge v Gay[11], a man was backing his car in the parking lot and ended up colliding it with the air conditioning unit and ruptured a gas pipeline which caused an explosion in the building. The court in this case held the defendant liable for all the damages and stated that as long as the defendant's negligence cause the harm, he shall be held liable.
Case Analysis
Now that the author has talked about the genesis of the rule and its evolution into its current form, he shall now critically examine certain cases and talk about the various doctrines of tort which are contradicted by the eggshell skull rule.
Case 1: Smith v. Leech Brain[12]:
In this case of great ill-repute, Mr. Smith was employed in a factory owned by Leech Brain for the work of galvanizing. Smith's task was to separate articles from a tank of molten metal. One day, during the routine process, his lip was scalded due to the spitting metal. Although the appropriate treatment was administered to the plaintiff, his lips did not end up getting healed and subsequently his condition developed into cancer. This eventually caused his untimely demise after 3 years.
His cancer, even though malign could have been triggered by a number of factors at a later age, like sunlight, trauma, scratches.[13] Furthermore, individuals that are employed in gas industries are more susceptible to cancer because they are almost perpetually subjected to carcinogens throughout the duration of their employment. The condition being discussed is called occupational cancer.[14]
It must be noted that the plaintiff took off his protective shield, hence knowingly exposing himself to the injury. A fabled maxim of law that can be used by the defendant here, is 'volanti non fit injuria', which means voluntarily throwing oneself into the lair of injury. The point which must be paid heed to in this case, is that the causation of cancer, can in no way be solely blamed on the burn but also on the plaintiff's prior job at a gas factory which is apparently a factor that exacerbated his ailment. However, the court considered all of that immaterial and held Leech Brain liable for all the injuries that Mr. Smith suffered.
A valid criticism of the ruling of the court can be that the court failed to consider the doctrines of "proximate cause" and "reasonable foresight". Proximate cause is an important element of legal causation which is essential to be proven in order to make any act or omission legally actionable. Proximate cause means the act which is caused on account of a direct or foreseeable act. Reasonable foresight on the other hand, is an ordinary person's capacity to be able to see reasonably, the repercussions of his act. Donoghue v. Stevenson[15] resulted in the laying down of the "neighbour principle" which says "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."[16]
In the above stated case, the company's negligence can be said to have caused Mr. Smith's lip burn. That being said, it must be noted that we can't consider his cancer as proximate enough to be actionable. He developed cancer not just because of the lip burn, but also because of the harmful exposure that he faced in his previous job. The Defendant cannot be held liable for something which was neither reasonably foreseeable nor the direct result of his action. The case also negates the but for test[17]. There were possibilities of the cancer developing regardless of the injury.
Case 2: Page v. Smith:
In Page v. Smith[18], Mr. Page, who suffered from a disease called "chronic fatigue syndrome", which causes excessive tiredness and exhaustion, met with an accident. However, he said that he was recovering from his medical condition and hoped to get back to work. The accident nullified the chances of that happening and aggravated the condition making it permanent. The court held liable the defendant, who was made to pay all the damages stating "take the plaintiff as he comes."
Liability cannot be imposed on a person for something as unforeseeable as a trigger to an existing nervous condition. One of the major criticisms of Scott v. Shephard ¹⁷ is that a person cannot be held liable for something which by any means cannot be foreseeable. The crucial point that the egg shell skull rule fails to address is that it is very arbitrary to expect from the defendant to "take the plaintiff as he comes." In doing so the court is promoting the commoditization of the tort law.
Commoditization in this regard refers to a price tag being attached to every individual's injury. This shifts the focus of tort law from justice to mere allocation of costs. When a defendant is expected to pay damages to the plaintiff, he is not supposed to put him in a better position than he would be in had the injury not occurred but the egg shell skull rule makes the plaintiff pay for any and all injuries caused which ultimately puts the plaintiff in a better position and the defendant in exposed to inordinate compensation.
A pertinent observation in this context is that the egg shell doctrine can act as a deterrent in the employers hiring people with pre-existing vulnerabilities. The very obvious reason for the same being that this rule puts the burden of taking extra precautions on the employers, so that these injuries can be avoided. This is not economically feasible or desirable. This poses a roadblock to the employers who are not left with any other choice but to do an extensive screening before hiring and leaving out the people who have any history of benign conditions. In a way the egg shell skull theory contradicts the reason for which it was made.
The Way Forward
This section of the project will iterate the criticisms that have been identified above and will suggest a way forward from this.
The eggshell skull rule is an outright contradiction of certain tort doctrines. We look at crumbling skull rule which acts as a more prudent alternative to the aforementioned rule. It also ensures that any person is not put in a position which would otherwise have not existed had the rule not been applied. Along with this we will also look at reasonable foresight as a possible alternative.
Crumbling Skull Rule:
In Athey v. Leonati[19], a person suffered from back issues and while recuperating from those he got into an accident and suffered more injuries. He was advised regular exercises by his doctor and while doing that, he suffered a herniated disc. The court in this case even though ruled in favour of the plaintiff held that "the defendant is liable for the injuries caused, even id they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage."[20] This laid a foundation for the "crumbling skull rule"
Crumbling skull rule simply states that "while a defendant is responsible for the damages needed to restore the plaintiff to the position they were in before the accident, the defendant isn't responsible for the injuries caused by him to plaintiff in a BETTER position."[21] In other words, defendant is liable for the injuries caused by him to the plaintiff regardless of his pre-existing conditions. However, he cannot be held accountable for any crippling impacts that the plaintiff's condition causes.
A general rule in tort for proving causation is the "but for" test. But for the act of the defendant the injury would not have occurred. When the but for rule does not work the court looks into the substantial factors that could have contributed or caused the damage. More often than not, the "egg shell skull rule" cases contradict the "but for test and the court then looks into the more substantial factors. The substantial factor test is also to a certain extent dependant on the judge's discretion and cannot always be justifiable. The crumbling skull rule can also act as a contributory aid to the egg shell skull and ensures the use of such law in a justifiable manner.
Reasonable foresight:
The Wagon Mound case[22], resulted in the establishment of a prudent foreseeability standard in negligence, which has, right from the outset, been accepted and acknowledged. The very existence of this makes the egg shell rule futile.
The defendant should be held liable for his negligent acts to the extent that the damage is foreseeable. Plaintiff also must take care of his injuries, the failure to take such reasonable care will result in contributory negligence. One without taking any precautions cannot except to not get injured or claim damages for such injury when they are themselves at fault.
How do we define an eggshell skull or a thin skull? A person with a weak heart, existing nervous conditions, dormant cancer etc. But another question that arises here is when do we stop this categorisation? For example, if a person is driving a car at a very slow speed and an old man who suffers from osteoporosis is hit by that car. Asa consequence of this, he suffers multiple fractures, would we still hold the person liable, completely ignoring the fact that the person was neither negligent in his driving, nor did he hit the man intentionally.
In this scenario, if a healthy person had been hit by that person's car, he would not have sustained any major injuries unlike the old man. The point here is that a status of consideration needs to be accorded to the pre-existing conditions of the plaintiff. The old man was at all times, in danger of getting multiple fractures due to osteoporosis, him being hit by a slow car does not change that.
A possible counterpoint to this can be that if the person was driving slowly, he could have seen an old man and should have been extra careful. However, to refute this, we can say, the man could not have identified from a distance that there was an old man who could have possibly come in front of his car. He would have crossed the road. Moreover, it seems injudicious to expect a person to take exceptional care so as to avoid injuries. This point has been brought up because the economic theory of the tort law says that the precautions that are taken by a person to prevent injuries must be rational and justified.
There lies a vast difference between inciting pre-existing vulnerabilities and pre-existing conditions. A person should not have to compensate someone entirely for their pre-existing vulnerabilities and pre-existing conditions because it is wrong and unjustifiable. Compensation however can be and should be given for situations where a person has triggered another's pre-existing vulnerability.
The inability of the plaintiff to take care will either precede or happen alongside the defendant's negligence. We need to understand the difference between the eggshell skull rule and contributory negligence. If a plaintiff is contributorily negligent then he should not be awarded damages to the full extent.
Instead of questioning the rule's reliability, what we can do is, fundamentally inspect the rule's social incentives. The central focus should be towards reducing the risk through the adoption of better legal doctrines that ensure safety.
Conclusion
Throughout this project, the author has argued that the egg shell skull rule might be a fair rule, however because of its carious contradictions to the existing principles of tort law about which the author has given elucidations at length, it requires certain changes. After reviewing the origin and evolution of the rule and establishing the stated by examining some landmark cases and also suggesting certain alternatives it can be interpreted that the perpetual working of the principle has demonstrated that, as a rule, leaving the misfortune where it falls is neither acceptable sense, nor great law.
Further supporting the point that in the present context egg shell skull rule is not playing an instrumental role. The author is of the opinion that the rule should be applied in contexts where the plaintiff's injury is caused not because of his own fault and nor should it be a result of some negligence on his part. The application of this is limited to pre-existing conditions only.
The question raised in the beginning was whether the rule complies with the various doctrines laid by the tort law. The findings of this project depict the compliance between the doctrines laid by the tort law. The findings of this project, also depict the compliance between the doctrines and the rule stand negated. Having assessed this rule we can come to a conclusion that a viable way forward in this regard would be to supplement the egg shell skull rule with the crumbling rule and principle of reasonable foresight or use them as alternatives altogether.
End Notes:
The objective of this project is to critically analyse the validity of the "Eggshell Skull Rule". The reason behind choosing this particular rule to study, is its uniqueness. The rule emphasizes on the condition of the plaintiff rather than what a typical or average person would experience. This is in contrast to other rules in tort law.
Let us better understand this rule with the help of a simple example; A pedestrian has a rare bone disorder that makes their bones extremely brittle. While crossing the street, they are hit by a car traveling at a moderate speed. The pedestrian suffers multiple fractures and requires extensive medical treatment. The court held the driver of the car liable for the full extent of damages even though he was unaware of the pedestrian's disorder. The court's verdict was based on the well know doctrine of talem qualem, or in simpler words, the eggshell skull rule.
The eggshell skull rule, is "The rule that makes the defendant liable for the plaintiff's unforeseeable and uncommon reactions to the defendant's negligent or intentional tort. If the defendant commits a tort against the plaintiff without a complete defence, the defendant becomes completely liable for any injury that is magnified by the plaintiff's peculiar characteristics." [1] The anomaly in this doctrine lies in the fact that liability will be imposed on the defendant although the plaintiff's injury was absolutely unforeseeable. This apparently renders the Broken Eggshell Rule completely unfair as it can result in the imposition of unreasonably exorbitant damages on the defendant.
Though this is the author's personal opinion, many learned scholars vociferously opine that the eggshell liability is indispensable for the tort law to be able to serve as a strong deterrent.[2] The rationale behind their opinion is that if liability were to be imposed merely on reasonably foreseeable acts, then it would unintentionally encourage tortfeasors to avoid taking adequate precautions and to instead, figure out loopholes to evade liability.
The author shall question the validity of this rationale along with other things in the forthcoming parts of this project.
Literature Review:
- "The Law of Torts" by Dan B. Dobbs, Paul T. Hayden, and Ellen M. Bublick: This book stands out as a useful and exhaustive resource in the field of tort law. The writing is clear, precise, and accessible even for rookie law school students like me. This treatise is widely respected for its thorough examination of tort principles.
- "Torts: Cases and Materials" by Victor E. Schwartz, Kathryn Kelly, and David F. Partlett: A Comprehensive Review:
The fact that the authors of all the aforementioned books have provided a clear and comprehensive explanation of the eggshell skull rule, illustrating its application through relevant cases and hypothetical scenarios, has indeed made these an indispensable set of reference for the author's project.
Statement Of Problem
The "Eggshell Skull" rule does not conform to even the most rudimentary principles of tort law. It requires to be replaced by an alternative rule that would enable defendants to have a clearer understanding of the extent of their potential liability.
Hypothesis
The "Skull Crush" rule is a viable alternative to the "Eggshell Skull" rule because of its fairness in liability and because, by focusing on foreseeable harm, the skull crush rule encourages defendants to manage risks based on reasonable expectations rather than holding them accountable for unforeseeable extreme outcomes. It is also more practical because it can reduce the potential for excessive litigation by encouraging settlements.
Research Questions
- How did the "Eggshell Skull" rule evolve?
- Does the "Eggshell Skull Rule" comply with the various doctrines (such as the "but for" test, reasonable foresight, and proximate cause) laid down by the tort law?
- What do legal precedents suggest about the idealness of the rule?
- What is an approach that could be considered a more prudent alternative to the "Eggshell Skull" rule?
Evolution Of The Rule
The origins of the "Eggshell Skull" rule can be traced back to the landmark case, Vosburg v Putney[3], which had been argued before the Supreme Court of Wisconsin in 1889. In its nascent stages, the rule was nothing more than a concept that fell short on form. In this particular case, the defendant (George Putney [14 y.o.]) had, without the intention of causing hurt, slightly kicked the plaintiff (Andrew Vosburg [11 y.o.]) in his upper shin. Unbeknownst to Putney, Vosburg was already injured in the leg in which he had been kicked, because of a prior sledding accident.
Consequently, the kick exacerbated the existing injury. Putney's actions caused Vosburg to suffer bone destruction. Holding Putney, the defendant liable, the court stated that "The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him."[4]
This case was responsible for setting a precedent for numerous cases that would be fought in the years to come. One of these cases was Keegan v. Minneapolis & St. Louis Railroad (1899)[5], which had been argued before the Supreme Court of Minnesota. The plaintiff sprained his ankle.
He was subsequently attacked by "Articular Rheumatism" and passed away due to a related medical condition by the name of "Endocarditis." The court ruled that since the bodily injury suffered by the deceased on account of the negligence on the part of the defendant, was the proximate cause of the disease (articular rheumatism) which caused the plaintiff's death, damages could be recovered not merely for the disease, but for the death of the plaintiff itself.
The genesis of the term "Eggshell Skull Rule" however, lies in a very well-known case, Dulieu v. White & Sons (1901)[6], argued before the High Court King's Bench. In this case, the plaintiff, a pregnant woman suffered a "nervous shock" because of a horse-carriage crash which resulted in her giving birth prematurely and in the child suffering from major developmental complications. The court, inspite of the plaintiff not having suffered any physical injury, awarded the plaintiff damages, because, in the words of the judge, Kennedy J. himself, "It is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart."[7]
Expansion Of The Rule
The extent to which the scope of the "Eggshell Skull Rule" or the "Thin Skull Rule" has broadened cannot be understated. After the aforementioned initial landmark cases, courts began using the rule more widely and laid down the rule in a set of categories.
The very first category was laid down in Reed v. Union Pacific Railroad Co (1999), which was argued before the Seventh Circuit of the United States Court of Appeals.[8] It was held that the rule will be made applicable strictly in scenarios where the actions of the defendant have resulted in the plaintiff suffering a latent condition.
The next category held that; should a subsided or an antecedent condition be revived on account of the defendant's lack of due care, such a rule will be applicable. Under this category, the "eggshell skull rule" could apply to cases where emotional distress or psychological conditions are significantly worsened due to negligence on the part of the defendant (for example, in cases of negligent infliction of emotional distress), to determine the extent of liability. Doe v. Manheimer (1954)[9] is a case that can serve as a perfect example of this.
The third category affirmed that the rule could also apply to cases where the medical negligence of the defendant leads to complications in a patient with pre-existing health issues, the defendant (typically a healthcare provider) can be held responsible for worsening the patient's condition, even if the patient was already in a fragile condition. Hotson v. East Berkshire Area Health Authority (1987)[10] is a significant case in English law that could serve as a good example of this. In this case, the plaintiff had a pre-existing condition of a weakened leg due to a vascular disease.
The defendant hospital negligently failed to diagnose a fracture in the plaintiff's leg, leading to permanent damage. The House of Lords held that the defendant was liable for the exacerbated harm caused to the plaintiff's leg, applying the principle that the defendant must take the patient as they find them, including any pre-existing vulnerabilities.
The rule has also been extended to mental injury and economic loss. In the case of Colonial Inc Motor Lodge v Gay[11], a man was backing his car in the parking lot and ended up colliding it with the air conditioning unit and ruptured a gas pipeline which caused an explosion in the building. The court in this case held the defendant liable for all the damages and stated that as long as the defendant's negligence cause the harm, he shall be held liable.
Case Analysis
Now that the author has talked about the genesis of the rule and its evolution into its current form, he shall now critically examine certain cases and talk about the various doctrines of tort which are contradicted by the eggshell skull rule.
Case 1: Smith v. Leech Brain[12]:
In this case of great ill-repute, Mr. Smith was employed in a factory owned by Leech Brain for the work of galvanizing. Smith's task was to separate articles from a tank of molten metal. One day, during the routine process, his lip was scalded due to the spitting metal. Although the appropriate treatment was administered to the plaintiff, his lips did not end up getting healed and subsequently his condition developed into cancer. This eventually caused his untimely demise after 3 years.
His cancer, even though malign could have been triggered by a number of factors at a later age, like sunlight, trauma, scratches.[13] Furthermore, individuals that are employed in gas industries are more susceptible to cancer because they are almost perpetually subjected to carcinogens throughout the duration of their employment. The condition being discussed is called occupational cancer.[14]
It must be noted that the plaintiff took off his protective shield, hence knowingly exposing himself to the injury. A fabled maxim of law that can be used by the defendant here, is 'volanti non fit injuria', which means voluntarily throwing oneself into the lair of injury. The point which must be paid heed to in this case, is that the causation of cancer, can in no way be solely blamed on the burn but also on the plaintiff's prior job at a gas factory which is apparently a factor that exacerbated his ailment. However, the court considered all of that immaterial and held Leech Brain liable for all the injuries that Mr. Smith suffered.
A valid criticism of the ruling of the court can be that the court failed to consider the doctrines of "proximate cause" and "reasonable foresight". Proximate cause is an important element of legal causation which is essential to be proven in order to make any act or omission legally actionable. Proximate cause means the act which is caused on account of a direct or foreseeable act. Reasonable foresight on the other hand, is an ordinary person's capacity to be able to see reasonably, the repercussions of his act. Donoghue v. Stevenson[15] resulted in the laying down of the "neighbour principle" which says "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."[16]
In the above stated case, the company's negligence can be said to have caused Mr. Smith's lip burn. That being said, it must be noted that we can't consider his cancer as proximate enough to be actionable. He developed cancer not just because of the lip burn, but also because of the harmful exposure that he faced in his previous job. The Defendant cannot be held liable for something which was neither reasonably foreseeable nor the direct result of his action. The case also negates the but for test[17]. There were possibilities of the cancer developing regardless of the injury.
Case 2: Page v. Smith:
In Page v. Smith[18], Mr. Page, who suffered from a disease called "chronic fatigue syndrome", which causes excessive tiredness and exhaustion, met with an accident. However, he said that he was recovering from his medical condition and hoped to get back to work. The accident nullified the chances of that happening and aggravated the condition making it permanent. The court held liable the defendant, who was made to pay all the damages stating "take the plaintiff as he comes."
Liability cannot be imposed on a person for something as unforeseeable as a trigger to an existing nervous condition. One of the major criticisms of Scott v. Shephard ¹⁷ is that a person cannot be held liable for something which by any means cannot be foreseeable. The crucial point that the egg shell skull rule fails to address is that it is very arbitrary to expect from the defendant to "take the plaintiff as he comes." In doing so the court is promoting the commoditization of the tort law.
Commoditization in this regard refers to a price tag being attached to every individual's injury. This shifts the focus of tort law from justice to mere allocation of costs. When a defendant is expected to pay damages to the plaintiff, he is not supposed to put him in a better position than he would be in had the injury not occurred but the egg shell skull rule makes the plaintiff pay for any and all injuries caused which ultimately puts the plaintiff in a better position and the defendant in exposed to inordinate compensation.
A pertinent observation in this context is that the egg shell doctrine can act as a deterrent in the employers hiring people with pre-existing vulnerabilities. The very obvious reason for the same being that this rule puts the burden of taking extra precautions on the employers, so that these injuries can be avoided. This is not economically feasible or desirable. This poses a roadblock to the employers who are not left with any other choice but to do an extensive screening before hiring and leaving out the people who have any history of benign conditions. In a way the egg shell skull theory contradicts the reason for which it was made.
The Way Forward
This section of the project will iterate the criticisms that have been identified above and will suggest a way forward from this.
The eggshell skull rule is an outright contradiction of certain tort doctrines. We look at crumbling skull rule which acts as a more prudent alternative to the aforementioned rule. It also ensures that any person is not put in a position which would otherwise have not existed had the rule not been applied. Along with this we will also look at reasonable foresight as a possible alternative.
Crumbling Skull Rule:
In Athey v. Leonati[19], a person suffered from back issues and while recuperating from those he got into an accident and suffered more injuries. He was advised regular exercises by his doctor and while doing that, he suffered a herniated disc. The court in this case even though ruled in favour of the plaintiff held that "the defendant is liable for the injuries caused, even id they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage."[20] This laid a foundation for the "crumbling skull rule"
Crumbling skull rule simply states that "while a defendant is responsible for the damages needed to restore the plaintiff to the position they were in before the accident, the defendant isn't responsible for the injuries caused by him to plaintiff in a BETTER position."[21] In other words, defendant is liable for the injuries caused by him to the plaintiff regardless of his pre-existing conditions. However, he cannot be held accountable for any crippling impacts that the plaintiff's condition causes.
A general rule in tort for proving causation is the "but for" test. But for the act of the defendant the injury would not have occurred. When the but for rule does not work the court looks into the substantial factors that could have contributed or caused the damage. More often than not, the "egg shell skull rule" cases contradict the "but for test and the court then looks into the more substantial factors. The substantial factor test is also to a certain extent dependant on the judge's discretion and cannot always be justifiable. The crumbling skull rule can also act as a contributory aid to the egg shell skull and ensures the use of such law in a justifiable manner.
Reasonable foresight:
The Wagon Mound case[22], resulted in the establishment of a prudent foreseeability standard in negligence, which has, right from the outset, been accepted and acknowledged. The very existence of this makes the egg shell rule futile.
The defendant should be held liable for his negligent acts to the extent that the damage is foreseeable. Plaintiff also must take care of his injuries, the failure to take such reasonable care will result in contributory negligence. One without taking any precautions cannot except to not get injured or claim damages for such injury when they are themselves at fault.
How do we define an eggshell skull or a thin skull? A person with a weak heart, existing nervous conditions, dormant cancer etc. But another question that arises here is when do we stop this categorisation? For example, if a person is driving a car at a very slow speed and an old man who suffers from osteoporosis is hit by that car. Asa consequence of this, he suffers multiple fractures, would we still hold the person liable, completely ignoring the fact that the person was neither negligent in his driving, nor did he hit the man intentionally.
In this scenario, if a healthy person had been hit by that person's car, he would not have sustained any major injuries unlike the old man. The point here is that a status of consideration needs to be accorded to the pre-existing conditions of the plaintiff. The old man was at all times, in danger of getting multiple fractures due to osteoporosis, him being hit by a slow car does not change that.
A possible counterpoint to this can be that if the person was driving slowly, he could have seen an old man and should have been extra careful. However, to refute this, we can say, the man could not have identified from a distance that there was an old man who could have possibly come in front of his car. He would have crossed the road. Moreover, it seems injudicious to expect a person to take exceptional care so as to avoid injuries. This point has been brought up because the economic theory of the tort law says that the precautions that are taken by a person to prevent injuries must be rational and justified.
There lies a vast difference between inciting pre-existing vulnerabilities and pre-existing conditions. A person should not have to compensate someone entirely for their pre-existing vulnerabilities and pre-existing conditions because it is wrong and unjustifiable. Compensation however can be and should be given for situations where a person has triggered another's pre-existing vulnerability.
The inability of the plaintiff to take care will either precede or happen alongside the defendant's negligence. We need to understand the difference between the eggshell skull rule and contributory negligence. If a plaintiff is contributorily negligent then he should not be awarded damages to the full extent.
Instead of questioning the rule's reliability, what we can do is, fundamentally inspect the rule's social incentives. The central focus should be towards reducing the risk through the adoption of better legal doctrines that ensure safety.
Conclusion
Throughout this project, the author has argued that the egg shell skull rule might be a fair rule, however because of its carious contradictions to the existing principles of tort law about which the author has given elucidations at length, it requires certain changes. After reviewing the origin and evolution of the rule and establishing the stated by examining some landmark cases and also suggesting certain alternatives it can be interpreted that the perpetual working of the principle has demonstrated that, as a rule, leaving the misfortune where it falls is neither acceptable sense, nor great law.
Further supporting the point that in the present context egg shell skull rule is not playing an instrumental role. The author is of the opinion that the rule should be applied in contexts where the plaintiff's injury is caused not because of his own fault and nor should it be a result of some negligence on his part. The application of this is limited to pre-existing conditions only.
The question raised in the beginning was whether the rule complies with the various doctrines laid by the tort law. The findings of this project depict the compliance between the doctrines laid by the tort law. The findings of this project, also depict the compliance between the doctrines and the rule stand negated. Having assessed this rule we can come to a conclusion that a viable way forward in this regard would be to supplement the egg shell skull rule with the crumbling rule and principle of reasonable foresight or use them as alternatives altogether.
End Notes:
- https://www.law.cornell.edu/wex/eggshell_skull_rule
- Steve P. Calandrillo & Dustin E. Buehler, Eggshell Economics: A Revolutionary Approach to the Eggshell Plaintiff Rule, 74 OHIO ST. L.J. 375 (2013).
- Vosburg v. Putney, 86 Wis. 278, 56 N.W. 480 (Wis. 1893).
- https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harm-the-prima-facie-case-and-defenses/vosburg-v-putney/
- https://case-law.vlex.com/vid/keegan-v-minneapolis-st-889010885
- Dulieu v White & Sons, [1901] 2 KB 669.
- P.J. Rowe, The Demise of the Thin Skull Rule, 40 MOD. L. REV. 377 (1977).
- Reed v. Union Pacific Railroad Company, 185 F.3d 712 (7th Cir. 1999).
- Doe v. Manheimer, 563 A.2d 699, 212 Conn. 748, 1989.
- Hotson v East Berkshire HA [1987] AC 750.
- Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 680 N.E.2d 407 (Ill. App. Ct. 1997).
- Smith v. Leech Brain & Co. Ltd. [1962] 2 QB 405.
- Bennet, David M J --- "Remoteness of Damage: Chapman v. Hearse, Smith v. Leech Brain & Co. Ltd. & Anot." [1963] SydLawRw 12; (1963) 4(2) Sydney Law Review 292.
- Lin Fritschi, Future of Work and Occupational Cancer (2019).
- [1932] UKHL 100 [1932] SC (HL) 31 [1932] AC 562 [1932] All ER Rep 1.
- JOHN MURPHY & HARRY STREET, STREET ON TORTS (13TH ed. 2012).
- The But-For test is used in the law of torts to prove causation in fact.
- Page v. Smith [1996] 1 AC 155 House of Lords.
- Athey v. Leonati [1996] 3 S.C.R 458.
- https://www.lexology.com/library/detail.aspx?g=8ba38830-2cba-41db-b099-5b52d54d7894
- https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1435/index.do
- UKPC 2, AC 388, 1 All ER 404.
Award Winning Article Is Written By: Mr.Siddhanth Durgesh Nadkarni
Authentication No: OT430151560181-27-1024
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