Introduction

Eggshell skull theory is a legal doctrine used in common law. It is also known as thin skull rule or talem qualem rule. This doctrine is used in some tort law systems, it is sometimes also used in criminal law system.

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.^[1]

Eggshell skull rule was first used in the year 1890 in case of Vosburg v. Putney (1890)^[2], and the term thin skull was first used in the year 1901 in case of Dulieu v. White & Sons (1901)^[3]

This rule states that unforeseeablity of pre-existing vulnerabilities cannot be used as a defence to escape liability of damages caused by any negligent act or intentional act by the defendant.

The eggshell skull rule or the thin skull rule is neatly summarized by the statement ‘you take your victims as you find them’.^[4]

Even if the final consequences of any negligent act or intentional act is worse than the one anticipated by the negligent party, he will still be responsible for total consequences and not just initial injury.

Eggshell Skull theory was best described in an infamous case of Smith v. Leech Brain & Co. Ltd.^[5]. In this case an employee was splashed with molten metal at workplace which gave him a lip burn injury. The injury was treated but eventually it developed into cancer. After three years the employee died of cancer. Even though defendant was unaware of the premalignant condition of the employee and it was completely unforeseeable that a burn injury would lead to cancer still the defendant was held liable for the employee’s death on the principle on the principle that a tort-feasor must take his victim as he finds him.^[6] The protective gear provided to the workers in the factory was not up to the mark.^[7] The judge ruled in favour of the plaintiff. The judge said the test is not whether these employers have foreseen that a burn would cause cancer and that the employee would die. The question is whether these employers could have reasonably foreseen the burns. If the initial injury was foreseeable then the defendant will be liable.^[8]

It has sometimes been said that the “egg-shell skull” rule is simply an example of the principle that the precise extent of the damage need not have been foreseeable,^[9] though that would involve saying that the law regarded personal injury as indivisible and that damage from cancer triggered by a burn^[10]was damage of the same kind as the burn.^[11]

History

Eggshell skull theory was first used in the year 1890 in the case of Vosburg v. Putney.^[12]

In Vosburg v. Putney (1890), A 14-year-old boy, Vosburg, was kicked in the shin by an 11-year-old boy George Putney, in school. Putney kicked with a very light force that Vosburg didn’t even immediately feel it. Putney didn’t know that Vosburg was suffering from a leg injury and due to kicking Vosburg developed an infection.
Even though Putney couldn’t have possibly known about the injury and infection was completely unforeseeable but still the defendant was held liable for all the injuries. In this case the concept of eggshell skull rule was developed. 

For the first time the name ‘thin skull’ came forward in 1901 in the case ofDulieu v. White & Sons.^[13]In this case the plaintiff was pregnant and she was standing behind the bar at her husbands’ public house. Suddenly a cart crashed into the public house. Plaintiff got afraid and feared for her death, she did not receive any physical harm but she suffered shock. She gave birth to a premature child and the child was mentally unstable. 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.^[14]

Eggshell Skull Theory For Mental Harm In India

Sometimes, mental and emotional distress is much worse than physical injuries caused by the negligent act or intentional act of other party. In such cases mental and emotional distress will be treated equally as any physical harm. This principle is as applicable to “nervous shock” as to any other sort of personal injury^[15] and applies where the foreseeable danger is of physical trauma but instead claimant is shocked, because of his predisposed personality, into mental illness, even though no physical injury has in fact occurred.^[16] The tortfeasor will be equally liable for any mental harm to the plaintiff, even if the act was significantly small and even if the mental harm wasn’t foreseeable at the moment of act. Cases of emotional distress and mental harm also follow the principle that Tortfeasor takes the victim as he finds him. Similarly, even in cases of mental harm one cannot use the defense of victims predisposed personality stating mental harm was unforeseeable to escape liability. However, the damages would be lesser than any other person suffering from normal physical harm. In Haber v. Walker, the defendant was held liable for suicide of plaintiff’s husband due to mental distress caused by defendant.

The case of Page v. Smith ^[17]explains foreseeability of mental harm caused by a negligent act of one person. In this case plaintiff was involved in a car accident that caused him almost no physical harm, but his old psychiatric disorder started recurring after the accident. The issue was whether defendant is responsible for plaintiff’s psychiatric breakdown. Here defendant agreed to his negligent act but he did not agree for being responsible for plaintiff’s psychiatric breakdown and said it was not foreseeable that an accident like this would cause someone a psychiatric breakdown. Majority of the judgement agreed that defendant was responsible for recurrence of mental disorder of plaintiff. It was held by the House of Lords that in an accident some sort of harm was reasonably foreseeable, It is not necessary for exact type of harm to be reasonably foreseeable, thus defendant was held responsible for duty of care towards Plaintiff. 

In America, some states have clearly mentioned that only those mental harms that are reasonably foreseeable in an ordinary person and which can be recovered will be liable to receive damages. For example, if ‘A’ suffers from a hereditary mental illness and is caught as a victim in a negligent act by ‘B’. ‘A’ did not receive any major injury through negligent act but along with physical damage he claimed for his mental illness, later it was found that mental illness of ‘A’ was a hereditary that coincidentally occurred at the exact same time of the negligent act. In this case ‘B’ won’t be held liable for victim’s mental illness as it was not reasonably foreseeable that a negligent act this small would cause such mental illness. In such cases one can, be held liable for reactivation and aggravation only if reasonable foreseeability and sensitivity of victim was found.

Problems in Application of Eggshell Skull Theory in Case of Emotional Distress

As simple as the concept of foreseeability looks in cases of mental distress and emotional trauma, it is equally tough to prove cause of mental distress and it makes it difficult to apply eggshell skull principle in cases of mental harm. 

With the improvement in technological equipment it gets very easy and fast to identify physical harm, be it the worst injury and it makes it easier to identify the cause for such injuries, but its harder to identify a cause for a mental trauma.

For example, there are 2 person ‘A’ and ‘B’ traveling in a car and they involve in an accident where ‘A’ suffers physical injury and ‘B’ suffers nervous shock. In such situations one can simply identify that car crash caused physical harm to ‘A’ and damages to physical harm can be effortlessly calculated. But when it comes to nervous shock suffered by ‘B’, It is tricky to identify how the car crash worsen the emotional trauma and even trickier to calculate the damages caused by a negligent act of defender.

One can agree that emotional impacts of traumatic events are real and severe. But with emotional trauma being an invisible injury, there is no straight way to measure the amount of pain one experiences and equate it to the trauma associated with a physical injury. The field of neuroscience and its associated technology isn’t yet advanced enough to quantify emotional pain and trauma. 

In cases of mental distress, it also gets difficult to prove if plaintiff suffered mental disorder from past as before the incident or it was really the incident that caused mental disorder.

Exceptions of Eggshell Skull Theory

Intervening cause is an exception to the eggshell skull rule. If there’s a separate act that intervenes the ongoing act that caused injury and somehow it helped in agitating the injury it will be a novus actus interveniens which means an intervening act/cause. Tortfeasor is not liable for damage caused according to Australian common law if there’s a novus actus interveniens. One can take the defense of novus actus interveniens only when the chain of causation is broken by voluntary human act or an independent act. which in conjunction with the wrongful act, was so unlikely as to be termed a coincidence.^[18] Principle of novus actus interveniens is best described in the case of Haber v. Walker.^[19] In this case plaintiff’s husband is mentally distressed due to defendant’s negligent act and commits suicide. The question raised was ‘can suicide be claimed as novus actus interveniens in this case?’ It was held that no, suicide cannot be considered as a voluntary act and hence it is not an intervening act. And defendant was held liable for death.

Conclusion

Eggshell skull theory provides remedy towards victims with pre-existed vulnerabilities. According to this principle one cannot use the defense that resultant injury was not reasonably foreseeable. It is applied that a tortfeasor must take his victim as he finds him. A tortfeasor would be equally liable for his negligent act in cases of emotional and mental distress as he is held for any other physical harm. This principle can be used in physical, emotional and economical harm caused by someone’s negligent act. However, in cases of mental harm and emotional distress it is difficult to equate the degree of damage caused by the negligent act. It gets trickier to identify the cause of any emotional trauma. In some state’s reasonable foreseeability of an ordinarily vulnerable human is considered in cases of mental illness. Tortfeasor cannot be held liable for victim’s hereditary mental illness; he can be held liable for reactivation only if it can be found that it was tortfeasors act that caused reactivation of this mental illness.  In cases of mental health damages are comparatively lesser than physical injury.

Intervening act is identified as an exception in eggshell skull principle. It is stated that if in between injury and death there is a nous actus interveniens then tortfeasor won’t be liable for death of the victim. Defense of novus actus interveniens can only be taken if chain of causation is broken by some other act intervening the final consequences.

Bibliography

• Ratanlal & Dhirajlal: The Law of Torts (26th Edition)
• Volume 24 October 2001 The Eggshell Skull Rule and Related Problems in Recovery for Mental Harm in the Law of Torts Dr. J. Stanley McQuade Campbell University School of Law
• Eggshell Skull Theory By Chauhan.rishabh

^[1] ‘What Is An Eggshell Skull? | What Is An Eggshell Plaintiff?’ (20 September 2017) Rotlaw.com

^[2] Vosburg v Putney, 80 Wis 523; 50 NW 403 Wisc, (1891)

^[3] Duilieu v White & sons 2 KB 669, (1901)

^[4] Nicola Monaghan, Criminal Law (4th edn, Oxford University Press 2012).

^[5] Smith v Leech Brain & Co Ltd, 2 QB 405, (1962)

^[6] Smith v Leech Brain & Co Ltd, 2 QB 405, (1962) 

^[7] Smith v Leech Brain & Co Ltd, 2 QB 405, (1962)

^[8] Ibid

^[9] Liesbosch Dredger v Edison SS A.C. 449, 461 (1933) and Smith v Leech Brain & Co Ltd 2 Q.B. 405, 415 (1962)

^[10] Smith v Leech Brain & Co Ltd, 2 QB 405, (1962)

^[11] Margereson v JW Roberts Ltd P.I.Q.R. P154,(1996)

^[12] Vosburg v Putney, 80 Wis 523; 50 NW 403 Wisc, (1891)

^[13] Dulieu v White & sons 2 KB 669, (1901)

^[14] Ibid

^[15] Thomson Reuters, Winfield and Jolowicz on Tort (Classics) 7-038 (2014)

^[16] Page v Smith A.C. 155, para.5–085, (1996)

^[17] Page v Smith A.C. 155, (1996)

^[18] Haber v Walker VicRp 51(1963), VR 339, (1963)

^[19] Haber v Walker VicRp 51(1963)

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