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The eggshell skull rule extended to ‘cracked skulls’

In 1939, Mackinnon LJ, uttered the famous principle which has since become known as the “egg-shell skull rule.” In the case of Owens v Liverpool Corp. [1939] 1 KB 394, his Lordship said that “one who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one.”

The principle requires that a defendant must take its victim as it finds her and is therefore answerable for the full extent of the injury which a claimant may suffer even where only slight injury would have been foreseeable in a person of normal fortitude. Its reach has arguably been extended in by the High Court in the recent case of Christine Reaney v University of North Staffordshire NHS Foundation Trust [2014] EWHC 3016 (QB).

Mrs. Reaney was 67 when she experienced a sudden onset of back pain with associated weakness in her legs which was ultimately diagnosed as being the result of transverse myelitis. This put her in the same condition as a T7 paraplegic, that is, someone who had suffered a severe traumatic spinal cord injury at the mid-thoracic level. During an extended period of hospitalisation, Mrs. Reaney developed a number of deep pressure sores which caused osteomyelitis (infection of the bone marrow) and flexion contractures (abnormal shortening of the muscle tissue) of her legs together with a hip dislocation. Mrs. Reaney would always, because of the transverse myelitis, have been confined to a wheelchair for the rest of her life. The question for the court concerned the extent to which the pressure sores made her essential condition worse than it would otherwise have been.

The Defendant admitted negligence in respect of the pressure sores but argued that it was only liable to compensate Mrs. Reaney for any losses attributable to the additional disability it had caused her over and above her pre-existing disability. The situation was akin to a scenario involving two distinct torts caused by two separate tortfeasors. As might have been expected, the Defendant sought to establish that no additional need arising from the additional disability caused by the Defendant had been established with the result that no compensation fell to be provided.

The Defendant’s position (though not its necessary result) must have been attractive in law given that, unlike in the case of an eggshell skull, Mrs. Reaney’s was not a case of a pre-disposition or hypersensitivity, but of a pre-existing, apparently, severable injury.

The High Court got around this by treating Mrs. Reaney’s condition at trial as being worse than the sum of its potentially severable parts. The pressure sores had caused Mrs. Reaney to require two carers on a 24/7 basis, rather than only 7 hours of care per week, a larger house and a larger vehicle than she would have required as the equivalent of a T7 paraplegic. As a result, the Defendant had to make full compensation for the (indivisible) worsened condition. This was similar to Paris v Stepney Borough Council [1951] AC 367: loss of an eye is much worse for a one-eyed man than a man with full eyesight. As a result, the High Court found that “but for” the Defendant’s negligence Mrs. Reaney would not have suffered from the condition from which she suffered at trial. Alternatively, the Defendant had “materially contributed” to Mrs. Reaney’s condition and the absence of a joint tortfeasor from which the Defendant could seek contribution was no answer to a full claim against it.

Such iteration of the egg-shell skull rule will ensure that claimants recover full compensation where pre-existing injuries have been made materially worse by a defendant’s subsequent negligence.

By Sheryn Omeri

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