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- 1Dulieu v White [1901] (“Egg-shell” or “thin” skull rule)Facts:The claimant was pregnant and behind the bar in her husband’s public house. A horse and cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered shock. She gave birth prematurely nine days later and the child suffered developmental problems.
Ratio:“If impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact. It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”
Decision: An action could lie in negligence for nervous shock arising from a reasonable fear for one’s own immediate safety. - 2Smith v Leech Brain & Co [1962] (“Egg-shell” or “thin” skull rule)Facts:C’s husband splashed on lip at work, with molten metal. Suffered foreseeable splash injury and burns to lips. He had pre-cancerous condition in lips; developed cancer and died from it.
Ratio: “The Wagon Mound case did not have what I may call, loosely, the thin-skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him”, per Lord Parker CJ
Decision:D liable: even though only foreseeable injury was splash and burn, C was “thin skull” individual, and suffered more serious consequences than that which normal person would have. - 3Robinson v Post Office [1974] (“Egg-shell” or “thin” skull rule)Facts: C, employee of D, slipped on oily ladder and cut shin. Doctor gave him anti-tetanus injection, to which C was allergic. As a result, he contracted encephalitis (inflammation of brain).
Ratio: “the principle that a defendant must take the plaintiff as he finds him involves that if a wrongdoer ought reasonably to foresee that as a result of his wrongful act the victim may require medical treatment he is...liable for the consequences”, per Orr LJ. If doctor should have been aware that C was allergic, then treatment would probably have been novus actus interveniens.
Decision: D liable for original injury and encephalitis: - 4Stephenson v Waite Tileman LtdNZ case, in which C cut hand on wire rope. Medical evidence stated that unknown virus had entered wound, causing brain damage. D liable for whole damage: “if the principle of the eggshell skull cases is still part of English law, then it must follow both on grounds of logic and practical policy that the principle of new risk created by injury must also be part of the law”, per Richmond J. But here, C was not suffering from pre-existing condition. Is it therefore an egg-shell skull case, or is the test actually one of “direct consequences”, as in Re Polemis?
- 5The Sivand [1998] (Does the egg-shell skull rule apply to property damage? )unusual ground conditions at C’s harbour caused delay and extra expense in repairing moorings, negligently damaged by D’s ship. D liable for extra expense: “liability of the defendants is founded on one aspect of the principle that a tortfeasor takes his victim as he finds him”, per Pill LJ.
- 6Page v Smith [1996] (Egg-shell skull rule applies to cases of nervous shock, even if C has an “egg-shell personality”, predisposing development of psychiatric illness)Facts: C in car crash, negligently caused by D. C’s car damaged, but he was physically unhurt. Accident causes re-activation of chronic fatigue syndrome (myalgic encephalomyelitis: M.E.), which he had some years before.
Ratio:Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. There was thus no need to establish that psychiatric injury was foreseeable. Also the fact that an ordinary person would not have suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him under the thin skull rule.
Decision: H of L held that where physical injury was reasonably foreseeable, there was no distinction to be drawn between non-physical damage and traditional personal injuries. If physical damage to C is foreseeable, full extent of C’s damage is recoverable. - 7Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997]valuer of property not liable for all direct consequences of his negligent conduct; only liable for those consequences within scope of duty he owed to person relying on information he had supplied. Valuer negligently overvalued property, on which basis lender lent borrower money. Property market fell and lender suffered losses, but valuer not liable for part of lender’s loss which resulted from fall in market. Lord Hoffmann distinguished between “information” and “advice”. If scope of duty is to provide information, on which somebody else can act, D not liable for unforeseeable losses. If duty is to provide advice, D liable for all losses flowing from negligent advice. Actual loss was difference between negligent valuation given and amount non-negligent valuation should have been at the time, before property crash.
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- Law FlashCards sobre Sem título, criado por Kirsty Dcosta em 17-11-2016.
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- Kirsty Dcosta
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