Has anyone come across "the eggshell effect" in a personal injury case?

maryjane1970

I read up and it says the defendant has to take the plaintiff  as they found them.but what if they were getting treatment for say a broken leg and it was 70% healed and then had a minor accident,but it made the break worse than it ever was.has does the courts look at that?

SarahMollie

Its known as the Eggshell Skull rule and its a long established legal principle in tort law and also applies in criminal law. Googling it will probably tell you all you need to know, but in short it means that you take the victim as you find them, whether or not a person was weaker than the average person is no defense to negligence for example.

hullaballoo

Just to correct the title, it's "the eggshell skull rule" and it is an exception to the general rule that the damage must be foreseeable.

In relation to your example, the Courts take account of the fact that there was a pre-existing injury that was not the defendant's fault and will look to gauge the extent to which the injury was worsened by the defendant's wrongful act. The Court will rely heavily on medical evidence in assessing this. It is not an exact science.

Elemonator

As previously posters have suggested, its called the Eggshell Skull Rule. Basically means that you "take the victim as you find them" as my lecturers used to say. A few rough examples I can think from college of is that if you threatened someone and a witness had a heart attack as a result of the stress of the situation. Another one would be if someone suffered from brittle bones and they got into an accident, then their weakness will not be a defence. It's an exception to the rule of reasonable forseeability and you come across it mainly in Law of Torts and sometimes in Advanced Torts if you are studying it.

Overall it encompasses the principal that a victims weaknesses is not a defence in court. If you are up for a bit of googling and research, a few good ports of call case wise are R v ?Blaue?. This case also shows how intervening acts may not always be the cause of harm. Another fascinating case is Vosburg v Putney.

Hope this helps OP. I'm a law student so this may not be the best of answers but basically everything I said can be read on Wikipedia also.

Samuel T. Cogley

I didn't have the pleasure of many Binchy lectures, being in the college for the rich and thick down the road from his usual digs, but I do remember the one or two I did get! He tells a great little story of walking through Heuston Station and bumping into someone and muttering an apology. The man he has bumped into gives him a death stare and Binchy, being in an admitted bad mood says 'come on it wasn't that bad was it' to which the reply comes 'I've just had a kidney transplant'.

I have no idea why that underscored the principle so well for me but hopefully it might for you too OP.

One of the things to bear in mind if Tort (Negligence at least) is to some degree a loss distribution mechanism. There's a certain amount of legal gymnastics going on here but out of the three parties:

i) The Tortfeasor
ii) The injured party
iii) The new Tortfeasor

Who is it most fair to pin the bills too. It's an exception to the foreseeability rule and is one step removed from it, which in my opinion makes it fair. To clarify it's only (as far as I understand it) to do with the quantum of damages. If it was unforeseeable that the act would have caused you injury then you will not be able to recover damages. If the act is found negligent then your injury should not prevent you claiming all the damages.

This is somewhat different to the situation in homicide cases where the 'substantial and operating cause' can be put back on the original perpetrator even though they may suffer an intervening act such as medical negligence.

Pat Mustard

An example of the eggshell skull principle in action is where a plaintiff has pre-existing degenerative disc disease and suffers a back injury in an accident, subsequently.

NUTLEY BOY

This assumes that the underlying condition is symptomatically quiescent at the time of subsequent injury. Otherwise, you are pleading novus actus.

Samuel T. Cogley

NUTLEY BOY wrote: »

This assumes that the underlying condition is symptomatically quiescent at the time of subsequent injury. Otherwise, you are pleading novus actus.

Would you care to elaborate on that point?

Someone with brittle bones, an obvious limp and hunch is symptomatic, but if I cover the pavement in oil and he slips over and dies I'm liable, whereas a perfectly healthy individual may simply have cuts and bruises.

I'm not sure how a novus actus interveniens is relevant in that scenario. I'm sure, however, I've simply misunderstood the point.

Pat Mustard

NUTLEY BOY wrote: »

Otherwise, you are pleading novus actus.

You must work for an insurance company :pac:

hullaballoo

I think NB is saying that the second injury constitutes a novus actus. My understanding of what the OP has asked is in relation to liability for the second injury in isolation, so novus actus is not applicable as the actus is whatever wrong gave rise to the second injury.

The question is about the extent to which the eggshell skull rule applies to someone who has had a previous injury that has not fully resolved but that is exacerbated by a subsequent wrong.

Pat Mustard

I will attempt to reply in a more appropriate manner.

First, my understanding is that ddd can arise naturally in many people, not necessarily as a result of any trauma.

Secondly, I understand that ddd is often asymptomatic. A plaintiff may experience no pain whatsoever until some subsequent injury or trauma arises.

Plaintiffs will often argue that the eggshell skull principle applies and that the subsequent injury aggravated their problems. Defendants/insurance companies argue that a pre-existing injury or condition is the cause of the problems rather than the subsequent accident. The court decides on the basis of the medical evidence.

NUTLEY BOY

Libertarian Kant wrote: »

Would you care to elaborate on that point?

Someone with brittle bones, an obvious limp and hunch is symptomatic, but if I cover the pavement in oil and he slips over and dies I'm liable, whereas a perfectly healthy individual may simply have cuts and bruises.

I'm not sure how a novus actus interveniens is relevant in that scenario. I'm sure, however, I've simply misunderstood the point.

The perspective from which I have always approached the rule is that there is something inherent in the plaintiff's medical condition that might render him prone to suffer a degree of injury beyond that which is reasonably foreseeable on the facts of the accident.

The pre-existing condition can exist in two states ; actively symptomatic at the time of the accident or symptomatically quiescent.

In relation to an actively symptomatic condition the usual argument advanced is that the defendant is only liable for the supervening disability imposed in the second accident, that is the additional injury over and above what already existed.

Sometimes there is a finely split and circuitous argument about what actually constitutes the concept of actively symptomatic as distinct from quiescent or not presenting active symptoms although there is something - even a predisposition - underlying. Ultimately, that issue is resolved - as pointed out already by Pat Mustard - by the medical evidence.

The case I always use to conceptualise the eggshell skull is Smith v Leech Brain [1962] 2 QB 405. The plaintiff had a predisposition to cancer. There were pre-cancerous cells in his lip. A blob of molten metal splashed on to his lip and "lit up" the situation in to a cancer from which he died. Defendants fully liable.

I take your point about novus actus interveniens in the context of your scenario above and agree with you. I am trained and programmed to search out the possible application of the concept in destruction mitigation of damages as part of a routine analysis of evidence .

I am always conscious of the issues of causation and proximate cause and any break in the chain of causation. For example, I had a case a few years ago where the plaintiff was injured seriously by the defendant's negligence. However, the plaintiff's medical treatment and management in hospital was well below standard and he suffered additional complications mediated by the bad medical management. This led to a proper argument by the defendant of novus actus interveniens in that the medical mismanagement was a new and intervening cause of additional injury.

Finally, to take a contractual side road for a moment in relation to pre-existing conditions look at health insurance contracts. Pre-existing medical conditions are a big issue for insurers and policyholders. If you look at their contracts they have pre-existing defined as including a condition that must have existed within a particular period before inception of the contract. The insurers medical advisers decide the issue according to the contract terms. So, you could have a condition according to their doctor without you knowing about it. The net point is that the issue is a bit ticklish in terms of precision.

NUTLEY BOY

Pat Mustard wrote: »

You must work for an insurance company :pac:

Now you.....

I did get some work experience in that world alright for a while but I'm much better now

Victor

NUTLEY BOY wrote: »

I am always conscious of the issues of causation and proximate cause and any break in the chain of causation. For example, I had a case a few years ago where the plaintiff was injured seriously by the defendant's negligence. However, the plaintiff's medical treatment and management in hospital was well below standard and he suffered additional complications mediated by the bad medical management. This led to a proper argument by the defendant of novus actus interveniens in that the medical mismanagement was a new and intervening cause of additional injury.

I presume that there is some leeway given in the subsequent medical management, that it needs to be competent, but not perfect?

NUTLEY BOY

Victor wrote: »

I presume that there is some leeway given in the subsequent medical management, that it needs to be competent, but not perfect?

The medical duty of care is to provide the level of expertise which would be reasonably expected. Perfect care would not be expected.