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Eggshell Skull Theory

Consider that a French football player named Zizou, during a match, had a scuffle with an Italian football player named Matterazzi and Zizou head butt's him lightly on his rib cage and the rib cage break but it didn't break just because of head butt. Matterazi's ribcage broke because he had an accident in the past which made his ribcage weak. If a normal person whose ribcage wasn't damaged was hit in the same way and with same intensity, that person wouldn't have sustained any injuries.

Despite the fact that Zizou was unaware about the fragility of Matterazi's condition and couldn't have possibly foreseen that his rib cage will break with such a light blow, he nonetheless will be held liable for all the injuries. This is an example of the eggshell skull rule. This essay will talk about what eggshell skull rule is and discuss its history in a precise manner. This essay will also discuss about the Indian and foreign cases in which eggshell skull theory was used. It will also talk about the difference between crumbling skull rule and eggshell skull rule.

The eggshell skull rule or the thin skull rule is neatly summarized by the statement ‘you take your victims as you find them'.[1] This essentially means that the frailty of the person cannot be used as a defence to escape liability.

Even in cases where the injuries are worse than one would have anticipated, the negligent party is still responsible for all the consequences. The eggshell skull rule gets its name from a common example often used to describe a situation where the plaintiff would be able to recover when their damages are worse than expected. In this example, there is an imaginary person who has an extremely thin skull, as fragile as an eggshell, even though the person looks completely normal. This person is hit in the head by someone else. A normal person would have been a little injured , but the person with the eggshell skull dies.[2]

So according to the eggshell skull rule, the person who hit the eggshell skulled person will not be just liable for the little injury but for the death of the person also even though, it was unforeseeable. The eggshell skull rule says that the person who hit the eggshell skulled person will be responsible for the extreme consequences that the person with the eggshell skull suffered, not just the amount of harm a normal person would have suffered. The eggshell skull rule is often also called thin skull rule.

History
A 14 year old boy, Vosburg, was kicked in the shin by an 11 year old boy George Putney, in school. Putney kicked so lightly that Vosburg didn't immediately feel it. What Putney didn't know was that Vosburg already had an injury in his leg and due to the kicking incident Vosburg developed a serious infection which left him with a weakness in his leg for the rest of his life.[3]

Though the injury was unforeseeable but still the defendant was held liable for all the injuries. This was the case of Vosburg v. Putney (1890). In this case the concept of eggshell skull rule was developed. For the first time the name ‘thin skull' emerged in 1901 in the case of Dulieu v. White & Sons.

The claimant was pregnant and was standing behind the bar in her husband's public house. A cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely and child suffered mental problems.[4] The judgement given by Kennedy J. was that 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. [5]

The eggshell skull rule has been used in many cases for example, The infamous cases of Smith v. Leech Brain & Co. Ltd. In this case Mrs. Smith's husband worked in a factory owned by Leech Brain galvanising steel. He had previously worked in a gas industry, making him prone to cancer. One day at work he came out from the behind of his protective shield when working and struck in the lip by molten metal. The burn was treated, but he eventually developed cancer and died three years later.

The protective gear provided to the workers in the factory was not up to the mark.[6] The judge ruled in favour of the plaintiff. The judge said The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether these employers could have reasonably foreseen the type of injury he suffered, namely, the burn. If the initial injury was foreseeable then the defendant will be liable.[7]

Crumbling Skull Rule

There is another well-established doctrine of tort law which people often confuse it with eggshell skull theory i.e., crumbling skull rule. It is well defined in the landmark judgement of Athey v. Leonati (1996). The judge said:
The defendant is liable for the injuries caused, even if 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[8].

This basically means that if the plaintiff's situation was going to deteriorate eventually even without the accident, then the defendant won't be liable for the full extent of damage as the principle of tort law is to reinstate the plaintiff to its original position and not get him into a better position. Also, in K.L.B v. British Columbia, the judge said This rule is intended to ensure that the plaintiff is not put in a position better than that which he or she would have been in had the tort not been committed.[9]

Difference between Eggshell Skull Theory and Crumbling skull Theory

In the case of Shaw v. Clark[10], distinction was drawn between the eggshell or the thin skull rule and the crumbling skull rule. The judge said The distinction between a thin skull case and a crumbling case is that in the (thin skull), the skull, although thinner than the average skull is in a stable condition before the accident and, but for the accident would have remained so.[11]

This means that in the case of the eggshell skull theory the plaintiff's condition was more fragile than a normal person but it would have remained the same if the accident hadn't occurred, whereas in the case of crumbling skull theory the plaintiff's condition was also more fragile than a normal person but even if the accident hadn't taken place, the plaintiff's condition would have still deteriorated.

The judge adds The (crumbling skull) is where the skull, whether thick or thin, is not in a stable condition before the accident but in state of continuing deterioration which the accident has merely accelerated. In the (crumbling skull), the defendant is not to be held responsible for the whole of the post-accident condition of the skull. The defendant's actions are not to be treated as having been the sole cause of the entire post-accident condition of the plaintiff[12]

Indian Cases
In the case of Dr. Sameer Kaushalmar v. Baljeet kaur[13], the complainant Smt.Baljeet Kaur, aged 69 years, took treatment for Urinary Tract Infection (UTI). Dr. Kaushal advised injection named Mikacin. After 3 days, she found that she was losing hearing power, which was informed to the doctor. However, doctor told her to continue the injection, as it was necessary for UTI. Further the patient's condition deteriorated and the complainant became absolutely deaf. The complainant consulted Dr. Harpreet, ENT surgeon who certified her as absolutely deaf due to ‘Mikacin' overdose.

Then, she consulted Dr Chug, who was also of the opinion that due to overdoes, her kidney was severely affected. Therefore, alleging negligence committed by the doctor who carelessly prescribed Mikacin for 21 days, a complaint was filed. It was found that the complainant withheld information's about several previous ailments. She had a history of diabetes for 35 years, hypertension issues for 8 years, decreased vision. Doctor cannot take defence that the patient suppressed previous illness or her diabetic status.

The judge said that:
I consider that the principle of Eggshell skull doctrine is applicable in this case, wherein liability exists for damages stemming from aggravation of prior injuries or condition. Another example of an Indian case where the eggshell skull rule was applied is Jaipur Goldens Gas Victims v. UOI & ors.[14]

What an attorney should prove in an eggshell skull case to make a successful claim?

  1. The attorney fighting the case for the plaintiff should disclose all the pre-existing conditions or injuries in the court room.
  2. Attorney should bring light to the fact as to how the condition of the plaintiff deteriorated after the accident and if the accident hadn't taken place the plaintiff wouldn't have suffered from the worsened injuries. In other words, for a successful claim, the attorney will have to prove that plaintiff wasn't a crumbling skull plaintiff.
  3. The attorney should explain how the new injuries have affected the plaintiff's life. What all problems the plaintiff is going suffer which he wouldn't have suffered otherwise.

Conclusion
The eggshell skull theory or rule is a just and fair doctrine. But like many laws this rule needs some changes. The writer believes that the eggshell skull rule should be applied in situations when the pre-existing condition of the plaintiff is not plaintiff's own fault. For example : If a man named Zaheer is driving a car while texting and due to his negligence he hits an old person named Smith and Smith suffers from fractured arm and legs owing to the accident.

If a healthy person was hit, that person wouldn't have sustained any injuries as the speed of car was very low but since Smith was an old man and his bones had become very weak due to old age, he suffered fractures. In this case the plaintiff's pre-existing condition wasn't his fault and hence, the defendant must be liable for the full extent of damage. In this case the plaintiff should be an eggshell skull plaintiff. Consider another situation, October 10th,2017, a man named Messi was driving a car and was over speeding and due to his negligence he rammed his car into a tree, resulting in a severe injury in his right arm and rib cage.

After almost a month of this accident, on 9th November, 2017, Messi got into a scuffle with a man named Ronaldo and during this fight Ronaldo punched Messi on his rib cage, resulting in fracture of his rib cage. A healthy person whose rib cage was in a normal condition wouldn't have sustained any injuries. But since Messi had met with an accident some days back his ribcage broke. According to the current eggshell skull rule Ronaldo will liable for the full extent of damages.

The change I want to propose in the current rule is that Ronaldo should be held liable but not for the full extent of the damages as Messi's pre-existing condition was due to his own fault. The eggshell skull should be upheld even in cases where the condition of the plaintiff is a genetic problem or a disease. It will be on the discretion of the courts to decide after hearing the facts of the previous accident which caused the pre-existing injury and critically analyse the situation to determine whether the pre-existing injury was caused due to plaintiff's own fault or not.

This procedure might be a little complicated but is certainly better than serving injustice. The crumbling skull rule also contributes in maintaining the fairness of the eggshell skull rule. The victim isn't unjustly enriched, if his/her situation was anyway going to deteriorate if the accident didn't take place. We live in a world surrounded by people. It's the responsibility of every individual to go about living their life in a rational and a justifiable manner.

Reference list:
  1. Monaghan N, Criminal Law (4th edn, Oxford University Press 2012)
  2. Vosburg v Putney [1891] Supreme Court of Wisconsin, 80 Wis 523; 50 NW 403 Wisc (Supreme Court of Wisconsin)
  3. Duilieu v White & sons [1901] High Court King's Bench, 2 KB 669 (High Court King's Bench)
  4. Smith v Leech Brain & Co Ltd [1962] Queen's Bench Division, 2 QB 405 (Queen's Bench Division)
  5. Athey v Leonati [1996] Supreme Court of Canada, 3 SCR 458 (Supreme Court of Canada)
  6. KLB v British Columbia [2002] Supreme Court of Canada, 2003 SCC 51 (Supreme Court of Canada)
  7. Shaw V Clark [1986] Supreme Court of Canada, 11 BCLR (2d) 46 (Supreme Court of Canada)
  8. Dr Sameer Kaushal v Smt Baljeet kaur [2013] State Consumer Disputes Redressal Commission (State Consumer Disputes Redressal Commission).
  9. Jaipur Golden Gas Victims vs Uoi & ors [2009] Delhi Hight Court, (2009)164 DLT 346 (Delhi Hight Court)
  10. 'What Is An Eggshell Skull? | What Is An Eggshell Plaintiff?' (Rotlaw.com, 2017) http://www.rotlaw.com/legal-library/what-is-the-eggshell-skull-rule/ accessed 10 October 2017
End-Notes:
  1. Nicola Monaghan, Criminal Law (4th edn, Oxford University Press 2012).
  2. 'What Is An Eggshell Skull? | What Is An Eggshell Plaintiff?' (Rotlaw.com, 2017) accessed 20 September 2017
  3. Vosburg v Putney [1891] Supreme Court of Wisconsin, 80 Wis 523; 50 NW 403 Wisc (Supreme Court of Wisconsin)
  4. Duilieu v White & sons [1901] High Court King's Bench, 2 KB 669 (High Court King's Bench).
  5. Ibid
  6. Smith v Leech Brain & Co Ltd [1962] Queen's Bench Division, 2 QB 405 (Queen's Bench Division).
  7. Ibid
  8. Athey v Leonati [1996] Supreme Court of Canada, 3 SCR 458, (Supreme Court of Canada).
  9. KLB v British Columbia [2002] Supreme Court of Canada, 2003 SCC 51 (Supreme Court of Canada).
  10. Shaw V Clark [1986] Supreme Court of Canada, 11 BCLR (2d) 46 (Supreme Court of Canada).
  11. Ibid
  12. Ibid at 11
  13. Dr Sameer Kaushal v Smt Baljeet kaur [2013] State Consumer Disputes Redressal Commission (State Consumer Disputes Redressal Commission).
  14. Jaipur Golden Gas Victims vs Uoi & ors [2009] Delhi Hight Court, (2009)164 DLT 346 (Delhi Hight Court).

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