RESEARCH PAPER

ANALYSIS OF EGG SHELL SKULL RULE

SUBMITTED TO:
PROF. ARUNA B VENKAT

SUBMITTED BY:
DYUTI ANAND
I Year, Semester I, B.A. LL. B (Hons)
(2020-5LLB-093)

NALSAR UNIVERSITY OF LAW, HYDERABAD

 Contents

ABSTRACT...............................................................................................................................1
INTRODUCTION......................................................................................................................2
EVOLUTION OF THE EGGSHELL SKULL RULE...............................................................3
EXPANSION OF THE RULE...............................................................................................3
CASE ANALYSIS.....................................................................................................................5
Case 1: Smith v. Leech Brain.................................................................................................5
Case 2: Page v. Smith.............................................................................................................6
WAY FORWARD.....................................................................................................................8
Crumbling Skull Rule.............................................................................................................8
Reasonable Foresight..............................................................................................................9
CONCLUSION........................................................................................................................11
 ABSTRACT

This paper aims to examine the egg shell skull rule and explore the question whether this rule
complies with the various doctrines laid by the tort law, a few of those doctrines being the
“but for” test, reasonable foresight, and proximate cause.

In my hypothesis, it is not so since the rule contradicts a range of tort doctrines and also does
not conform to certain basic principles of tort law.

The paper has been divided into 3 parts, Part I will explore the origins and development of
the egg shell skull rule. Part II will examine certain case laws and talk about how the existing
rule is not ideal. Part III will talk about the crumbling skull rule and reasonable foreseeability
as a prudent approach instead of the eggshell skull rule. This approach would ensure
responsibility on the victim’s part and is likely to be accepted as a more appropriate rule.

1
 INTRODUCTION

A man suffered a cardiac arrest and died due to a consequent car accident. The defendant was
held liable for the full degree of the damages though it was found that he suffered from a
coronary problem and was at a risk of getting such an attack. 1 In doing as such, the court
relied on the eggshell skull rule. Eggshell skull rule is the “rule that makes a 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
defense,  the defendant becomes liable for any injury that is magnified by the plaintiff's
peculiar characteristics.”2 The most alarming thing here to note is that liability will be
imposed even though the plaintiff’s injury was not foreseeable, and this could very clearly
lead to the defendant being subjected to exorbitant and extraordinary damages.

This is why the eggshell skull rule is not an appropriate rule as it leaves the defendant
exposed to unjustifiably large damages. Some scholars however argue that eggshell liability
is essential for tort law’s deterrence function.3 If courts were to impose liability only for those
acts which were reasonably foreseeable, tortfeasors would not take necessary precautions and
find loopholes to escape the liability.

We shall look into all these questions and possibilities in the forth coming parts.

1
Benn v. Thomas, 512 N.W.2d 537 (Iowa 1994).
2
Eggshell Skull Rule, , LII / LEGAL INFORMATION INSTITUTE ,
https://www.law.cornell.edu/wex/eggshell_skull_rule (last visited Dec 13, 2020).
3
Steve P. Calandrillo & Dustin E. Buehler, Eggshell Economics: A Revolutionary Approach to the Eggshell
Plaintiff Rule, 74 OHIO ST. L.J. 375 (2013).

2
 EVOLUTION OF THE EGGSHELL SKULL RULE

The eggshell skull rule was born out of the case Vosburg v Putney4. Initially it was more of a
concept and lacked form. Putney (defendant) slightly kicked Vosburg (plaintiff) in his left
shin without the intention of hurting him. Vosburg was already injured in his leg due to a
prior sledding accident and the kick aggravated his injury. As a result of this the plaintiff
suffered bone destruction. The court held the defendant liable and 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.”5

This laid down a precedent for many subsequent cases. 8 years after Vosburg v Putney, a man
sprained his ankle and died as a result of a condition known as “endocarditis”. The court held
that the ankle injury was the proximate cause of the man’s death and held the defendant
liable.6

The term “thin skull rule” emerged out of the case where a pregnant lady suffered shock and
gave premature birth due to a horse crash.7 The court gave the lady damages for all the
injuries sustained and 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”8

Over the period the rule has expanded its scope and has come to be known as what we call it
today, the egg shell skull rule or the thin skull rule.

EXPANSION OF THE RULE

The courts began using the egg shell skull rule more widely and laid down the rule in the
following categories:

4
Vosburg v. Putney, 86 Wis. 278, 56 N.W. 480 (Wis. 1893).
5
Vosburg v. Putney - Case Brief for Law Students | Casebriefs, ,
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/intentionally-inflicted-harm-the-prima-facie-
case-and-defenses/vosburg-v-putney/.
6
Keegan v. Minneapolis & St. Louis Railroad, 76 Minn. 90 (1899).
7
Dulieu v White & Sons, [1901] 2 KB 669.
8
P. J. Rowe, The Demise of the Thin Skull Rule, 40 MOD. L. REV. 377 (1977).

3
The first category which was laid down in Reed vs Union Pacific Railroad Co.9, stated that
the rule will be applied in situations when the act of the defendant has given rise to a latent
condition being suffered by the plaintiff.

The second category stated that if a subsided pre-existing condition is revived due to the
negligence of a plaintiff then such rule will be applied.10

The third category affirmed that this rule will also be applied in situations where a person’s
pre-existing medical condition which has not received proper medical attention, gets
aggravated by any negligent act of the defendant.

The rule has also been extended to mental injury and economic loss. In the case of Colonial
Inc Motor Lodge v Gay11, 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 defendant’s negligence caused the harm, he shall be held liable.

Having talked about how the rule was birthed and how it evolved into what it is today.

We now further critically examine certain cases and talk about various doctrines of tort which
are contradicted by the said rule.

9
Reed v. Union Pacific Railroad Company, 185 F.3d 712 (7th Cir. 1999).
10
Supra note 3
11
Colonial Inn Motor Lodge, Inc. v. Gay, 288 Ill. App. 3d 32, 680 N.E.2d 407 (Ill. App. Ct. 1997).

4
 CASE ANALYSIS

Case 1: Smith v. Leech Brain

In the infamous case, Smith v Leech Brain12, Mr Smith worked in a factory owned by Leech
Brain as a galvanizer. His job was to remove articles from a tank of molten metal. One day
while doing so, his lip was burnt by spitting metal. It was treated but it never healed and
eventually developed into cancer and he died 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 In addition to this, people working in gas industries are prone to cancer since they
are exposed to carcinogens throughout their employment, this condition is called
occupational cancer.14 Moreover, the plaintiff removed his protective shield willingly thus
exposing himself to the injury. A well-known rule of law that can be used as a defense here is
‘volenti non fit injuria’, voluntarily exposing oneself to injury. The point which should be
kept in mind here is that the onset of cancer cannot be solely regarded to the burn but also to
the fact that he previously worked in a gas factory which clearly is the contributing factor to
his ailment.

But the court did not take into account any of that and held Leech Brain liable for all the
injuries sustained by Mr Smith.

Forthright criticism of this can be that the court did not take into account principles of
proximate cause and reasonable foresight. Proximate cause is an element of legal causation
which is necessary to be established in order to make an act legally actionable. It refers to the
act which is caused due to a direct or a foreseeable act. Reasonable foresight is the ability of a
prudent person to be able to see reasonably the consequences of his act. Donoghue v
Stevenson15, established 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

12
Smith v Leech Brain & Co Ltd, [1962] 2 QB 405.
13
Bennett, 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
14
Lin Fritschi, Future of work and occupational cancer (2019), http://www.ilo.org/global/topics/safety-and-
health-at-work/events-training/events-meetings/world-day-for-safety/33thinkpieces/WCMS_681591/lang--en/
index.htm (last visited Dec 15, 2020).
15
[1932] UKHL 100 [1932] SC (HL) 31 [1932] AC 562 [1932] All ER Rep 1.
16
JOHN MURPHY & HARRY STREET, STREET ON TORTS (13th ed ed. 2012).

5
In the above stated case, Mr Smith’s lip burn can be attributed to the company’s negligence
however his cancer is not 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. 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 Smith18, 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 and he 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 Shepherd19 is that a person
cannot be held liable for something which by any means cannot possibly 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
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 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

17
But for test is the test used in tort law to prove causation in fact. Essentially it means but for the negligence of
the defendant the injury would not have occurred.
18
Page v Smith, [1996] 1 AC 155 House of Lords.
19
484 U.S. 940 108 S. Ct. 323 98 L. Ed. 2d 351 1987 U.S.

6
roadblock to the employers who are left with no 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 next section will iterate the criticisms that have been identified above and suggest a way
forward from this.

7
 WAY FORWARD

Egg shell skull rule is an outright contradiction of certain tort doctrines. We look at
crumbling skull rule which plays as an alternative to this theory and 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 Leonati20, a person suffered from back problems and while recovering from those
he got into an accident and suffered more injuries. His 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 the favour of the plaintiff held that “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”21 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 putting the plaintiff in a BETTER position.”22 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 his
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 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 certain extent dependent
on the judge’s discretion and cannot always be considered justifiable.

20
Athey v. Leonati, [1996] 3 S.C.R. 458.
21
Kingsley Napley-Eurydice Cote, What happens to claimants who suffer from a pre-existing weakness? The
“egg shell skull” rule and challenges ahead | Lexology, https://www.lexology.com/library/detail.aspx?
g=8ba38830-2cba-41db-b099-5b52d54d7894 (last visited Dec 13, 2020).
22
Supreme Court of Canada, Supreme Court of Canada - SCC Case Information - Search (2001), https://scc-
csc.lexum.com/scc-csc/scc-csc/en/item/1435/index.do (last visited Dec 13, 2020).

8
The crumbling skull rule can also act a contributory aid to the egg shell skull and ensures the
use of such law in a justifiable manner.

Reasonable Foresight
The Wagon Mound case23, laid down a prudent foreseeability standard, in negligence, which
has ever since been accepted and acknowledged. The existence of this makes the egg shell
rule futile.

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 expect
to not get injured or claim damages for such injury when they are themselves at fault.

How do we define an egg shell skull or a thin skull? A person with a weak heart, existing
nervous conditions, dormant cancer. 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. As a 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 at the
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 also anticipated that by the time
he would drive to that point, the pedestrian 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.

23
UKPC 2, AC 388, 1 All ER 404.

9
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
condition because it is morally 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 egg shell skull rule
and contributory negligence. If a plaintiff is contributory 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 adoption of
better legal doctrines that ensure safety.

10
 CONCLUSION

This paper has argued that the egg shell skull rule might be a fair rule however because of its
various 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 paper 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.

11