ACKNOWLEGDEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest thanks to

Mr. Souradeep Rakshit, Indian Institute of Legal Studies, for his invaluable guidance, sound

advice and affectionate attitude during the course of my studies.

I have no hesitation in saying that he molded raw clay into whatever I am through his

incessant efforts and keen interest shown throughout my academic pursuit. It is due to his

patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of information

therein. I also express my regards to the Library staff for cooperating and making available

the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me throughout the

project work.

Date: 16th Nov, 2017 Vivek Kr. Chowdhury

LL.B. 3 Yrs. Semester I

TABLE OF CONTENTS
1|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY
PAGE

ACKNOWLEDGMENT 1

RESEARCH METHODOLOGY 3

LIST OF CASES 5

INTRODUCTION 6

CHAPTERS

Chapter I Analysis of the theory of egg-shell skull 8

Chapter II Judicial Pronouncement 10

Chapter III Exception to the rule 12

CONCLUSION 13

BIBLIOGRAPHY 14

RESEARCH METHODOLOGY
2|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY

Research Aim and Objective

The research work is concerned with the topic Analysis of Egg-Shell Skull Theory. The
basic objective behind the concerned research is to succeed in attaining the knowledge
regarding the theory of egg-shell in tort and criminal jurisprudence.

Scope and Limitation

The scope of the concerned research is limited to analysis of the theory of egg-shell theory
prelevant in UK, US and Australian legal jurisprudence.

Research Question

The question that emerges through the research whirls on the analysis of the nature and scope
of the theory of egg-shell skull theory.

Research Hypothesis

The general held view that egg-shell theory is having wider margin of appreciation when seen
from the point of view of tortuous law.

Methodology

The research methodology in the concerned research clearly reflects Doctrinal, as well as
Analytical Research. The stated methods were considered for the given research; because of
its aptness towards the topic. The doctrinal method of research is preferred as compared to
non-doctrinal method of research. The paper is analytical as well as descriptive in nature.

3|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY

Mode of Citation

The Uniform Mode of Citation has been adopted throughout the course of the paper.

LIST OF CASES

1. Athey v. Leonati, [1996] 3 S.C.R. 458.

2. Benn v. Thomas, 512 N.W.2d 537.

4|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY
3. Haber v Walker, 1963] VicRp 51; [1963] VR 33.

4. Kavanagh v Akhtar (1998) 45 NSWLR588.

5. Kavanagh v Akhtar, (1998) 45 NSWLR 588.

6. Mahoney v Kruschich Demolitions, (1985) 156 CLR 522.

7. Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501.

8. Nader v Urban Transit Authority of NSW, (1985) 2 NSWLR 501.

9. R v Blaue [1975] 1 WLR 1411.

10. Smith v. Leech Brain & Co. [1962] 2 QB 405.

11. Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403.

12. Watts v Rake (1960) 108 CLR 158.

5|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY

INTRODUCTION

The eggshell rule (or thin skull rule) is a well-established legal doctrine in common
law, used in some tort law systems,1 with a similar doctrine applicable to criminal law. The
rule states that, in a tort case, the unexpected frailty of the injured person is not a valid
defense to the seriousness of any injury caused to them. A customer slips and falls in a store,
suffering an unusually rare and severe fracture of his femur. He sues the store for negligence.
Although the store admits its negligence, it argues it should not be liable for the unusual and
unforeseeable scope of the injury. To support its argument, the store introduces evidence
suggesting that the customer could have done more to prevent the severity of his injuries. The
evidence shows that a treatable disease has dramatically weakened his bones for more than a
decade, in part because he never bothered to seek diagnosis. The court rejects this argument
out of hand, however, simply noting that defendants take plaintiffs as they find them. In
doing so, the court relies on the eggshell plaintiff rule, The principle that a defendant is
liable for a plaintiffs unforeseeable and uncommon reactions to the defendants negligent or
intentional act. Under the rule, a defendant at fault is liable for the full extent of plaintiffs
injuries, even if the plaintiff possesses preexisting conditions that dramatically worsen the
harm. Most alarmingly, liability attaches even when the plaintiffs vulnerable condition and
the scope of the resulting injuries were completely unforeseeable. The practical consequence
is that a defendant can be on the hook for extraordinary damages arising from relatively
ordinary conduct. This makes the eggshell plaintiff rule an odd duck in modern tort law.
During the last century, the common law of torts moved away from rigid strict liability rules,
toward malleable notions of foreseeability. And yet courts left the eggshell plaintiff rules
sharp edges and harsh consequences virtually untouched. The rule is a doctrinal dinosaur
one of the few unchanged surviving elements of our ancient legal heritage. Perhaps the
eggshell plaintiff rule has survived because it comports with tort laws general goal of
compensating victims for their injuries. To some extent, the rule appeals to our sense of
justice because it shifts the burden of accident costs from victims to tortfeasors. And some
scholars argue that eggshell liability is essential for tort laws deterrence functionif courts
were to impose liability only for the foreseeable extent of harm, tortfeasors would not
internalize the full cost of their actions and would have diluted incentives to take care and
prevent injuries.

1
Prosser, Handbook of the Law of Torts 261 (4th ed. 1971).
6|Page
ANALYSIS OF EGG-SHELL SKULL THEORY

CHAPTER I

ANALYSIS OF THE THEORY OF EGG-SHELL SKULL

7|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY
This rule holds that a tortfeasor is liable for all consequences resulting from his or her tortious
(usually negligent) activities leading to an injury to another person, even if the victim suffers
an unusually high level of damage (e.g. due to a pre-existing vulnerability or medical
condition).2 The eggshell skull rule takes into account the physical, social and economic
attributes of the plaintiff which might make him more susceptible to injury. 3 It may also take
into account the family and cultural environment.4 The term implies that if a person had a
skull as delicate as that of the shell of an egg, and a tortfeasor who was unaware of the
condition injured that person's head, causing the skull unexpectedly to break, the defendant
would be held liable for all damages resulting from the wrongful contact, even if the
tortfeasor did not intend to cause such a severe injury.

In criminal law, the general maxim is that the defendant must "take their victims as they find
them", as echoed in the judgment of Lord Justice Lawton in R v. Blaue (1975), in which the
defendant was held responsible for killing his victim, despite his contention that her refusal of
a blood transfusion constituted novus actus interveniens.5

The doctrine is applied in all areas of torts intentional torts, negligence, and strict
liability cases as well as in criminal law. There is no requirement of physical contact with
the victim if a trespasser's wrongful presence on the victim's property so terrifies the victim
that he has a fatal heart attack, the trespasser will be liable for the damages stemming from
his original tort. The foundation for this rule is based primarily on policy grounds. The courts
do not want the defendant or accused to rely on the victim's own vulnerability to avoid
liability.

The thin skull rule is not to be confused with the related crumbling skull rule in which the
plaintiff suffers from a detrimental position (from a prior injury, for instance) pre-existent to
the occurrence of the present tort. In the "crumbling skull" rule, the prior condition is only to
be considered with respect to distinguishing it from any new injury arising from the present
tort as a means of apportioning damages in such a way that the defendant would not be
liable for placing the plaintiff in a better position than they were in prior to the present tort.6
2
Watts v Rake (1960) 108 CLR 158.

3
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501.

4
Kavanagh v Akhtar (1998) 45 NSWLR588.

5
R v Blaue [1975] 1 WLR 1411.

6
Athey v. Leonati, [1996] 3 S.C.R. 458.
8|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY
EXAMPLE

In an example, a person who has Osteogenesis Imperfecta (OI; also known as "Brittle Bone
Syndrome") is more likely to be injured in a motor vehicle accident. If the person with OI is
hit from behind in a motor vehicle collision and suffers medical damages (such
as clavicle fracture), it would not be a prudent defense to state that the Osteogenesis
Imperfecta was the cause of the fracture.

CHAPTER II

JUDICIAL PRONOUNCEMENT

1. UNITED KINGDOM: In the case of Smith v. Leech Brain & Co.,7 an employee in
a factory was splashed with molten metal. The metal burned him on his lip, which
7
[1962] 2 QB 405.
9|Page
 ANALYSIS OF EGG-SHELL SKULL THEORY
happened to be premalignant tissue. He died three years later from cancer triggered by
the injury. The judge held that as long as the initial injury was foreseeable, the
defendant was liable for all the harm.
2. UNITED STATES: In 1891, the Wisconsin Supreme Court came to a similar result
in Vosburg v. Putney,8 In that case, a boy threw a small kick at another from across
the aisle in the classroom. It turned out that the victim had an unknown microbial
condition that was irritated, and resulted in him entirely losing the use of his leg. No
one could have predicted the level of injury. Nevertheless, the court found that the
kicking was unlawful because it violated the "order and decorum of the classroom",
and the perpetrator was therefore fully liable for the injury. In Benn v. Thomas, the
appellate court determined that the eggshell rule should have been applied to a case in
which a man had a heart attack and died after being bruised in the chest during a rear-
end car accident.9
3. AUSTRILIA: In the case of Nader v Urban Transit Authority of NSW,10 the plaintiff
was a 10 year old boy who struck his head on a bus stop pole while alighting from a
slowly moving bus. He developed a rare psychological condition known as Ganser
Syndrome. The defendant argued that the illness resulted from his familys response
to the accident. McHugh JA said (at 537): the defendant must take the plaintiff with
all his weaknesses, beliefs and reactions as well as his capacities and attributes,
physical, social and economic. If the result of an accident is that a ten year old boy
reacts to his parents concern over his injuries and develops an hysterical condition,
no reason of justice, morality or entrenched principle appears to me to prevent his
recovery of compensation. In the case of Kavanagh v Akhtar,11 the court held the
tortfeasor should take into account the plaintiff's family and cultural setting. Equality
before the law puts a heavy onus on the person who would argue that the "unusual"
reaction of an injured plaintiff should be disregarded because a minority religious or
cultural situation may not have been foreseeable.

8
80 Wis. 523, 50 N.W. 403.

9
512 N.W.2d 537.

10
(1985) 2 NSWLR 501.

11
(1998) 45 NSWLR 588.
10 | P a g e
 ANALYSIS OF EGG-SHELL SKULL THEORY

CHAPTER III
EXCEPTIONS TO THE RULE

Intervening cause is typically an exception to the eggshell skull rule. If an injury is not
immediate, but a separate situation agitates the injury (such as the injured party being
involved in a vehicular collision while being taken to a hospital), the tortfeasor is not
liable under common law in Australia. In Haber v Walker,12 it was held that a plaintiff
will not be liable for a novus actus interveniens (intervening act) if the chain of
causation was broken by a voluntary, human act or, an independent event, which in
conjunction with the wrongful act, was so unlikely as to be termed a coincidence.
In Mahoney v Kruschich Demolitions,13 the plaintiff, Glogovic, was injured while
working on the demolition of a power house for the respondent. While being treated
for his injuries, his injuries were exacerbated by the negligent medical treatment of
the appellant, Mahony. It was held that there was no novus actus as a result of medical
treatment of injuries caused by the defendants negligence, unless such treatment is
inexcusably bad or completely outside the bounds of what a reputable medical
practitioner might prescribe.

12
1963] VicRp 51; [1963] VR 33.

13
(1985) 156 CLR 522.
11 | P a g e
 ANALYSIS OF EGG-SHELL SKULL THEORY

CONCLUSION

An inherent tension underlies the debate over the eggshell plaintiff rule. On one hand,
the rule guarantees that victims are fully compensated for their lossesan egalitarian
concept rooted in societys desire to make victims whole. On the other hand, the rule
conflicts with the fundamental principle that legal liability should be limited to
foreseeable harma notion essential to societys perception of the fairness of our
judicial system. An economic analysis of the eggshell plaintiff rule shows why courts
should resolve the debate in favor of foreseeability. The rule creates perverse
behavioral incentives for injurers and victims alike. Exposure to extraordinary losses
often leads injurers to take sub-optimal levels of care and activity. And full
compensation for extraordinary injuries dulls victims incentives to take care.

Courts should take bold action by embracing a foreseeability rule. After all, bold
action is a hallmark of the common law of torts. Eggshell liability should be no
exception. By adopting a foreseeability rule for eggshell cases, courts can take another
significant step in the evolution of tort law, while ensuring that liability rules align
private incentives with the greater social good.

BIBLIOGRAPHY
12 | P a g e
 ANALYSIS OF EGG-SHELL SKULL THEORY

Secondary Sources

Books:
Ratanlal & Dhreeajlal, Law of Torts, Lexis Nexis, Ed. 2nd 2015.
Dr. Bangia R. K., Law of Torts, Allahabad Law Agency, Ed. 6th 2011.

Web-Based Resources:
http://www.pucl.org/2001/egg-sgell-theory.htm
https://letstalkaboutthelaw.wordpress.com/tag/egg-shell-theory/

13 | P a g e