The “thin skull” rule is an old English rule of law which applies in Canada to acts of negligence (a tort) by one person (the tortfeasor) against another person causing personal injury. An example is a slip and fall in a shopping mall parking lot which is not properly kept clean of snow and ice in the winter. The principle is that the tortfeasor is liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition, such as a thin skull, when severe head injuries result from the slip and fall. The tortfeasor must take his or her victim as the tortfeasor finds the victim and is, therefore, liable even though the plaintiff’s injuries are more dramatic than they would be for a normal person.
A decision of the Supreme Court of Canada released in May 2008 revisited the “thin skull” rule. Culligan is a manufacturer and supplier of drinking water in rural areas such as Haliburton. The plaintiff replaced an empty bottle of drinking water with a full bottle and saw a dead fly and part of another dead fly in the unopened replacement bottle. Obsessed with the event and its “revolting implications” for the health of his family, he developed a major depressive disorder, phobia, and anxiety. He sued Culligan for psychiatric injury.
The Supreme Court held that, as the manufacturer of the drinking water, Culligan owed the plaintiff, as consumer, a duty of care in supplying bottled water to him, and it breached the standard of care by providing the plaintiff with contaminated water. The court also held that the plaintiff met the requirement of personal injury because he suffered a debilitating psychological injury which had a significant impact on his life. However, the court held that, although the breach caused the injury in fact, it did not do so as a matter of law. The court stated that “the law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.” The plaintiff failed to meet the test of foreseeability, namely that it was foreseeable that a normal person would suffer serious injury from seeing the flies in the bottle of water he was about to install but did not drink. Unusual or extreme reactions to events caused by negligence are imaginable but are not reasonably foreseeable. In legal circles, a debate is ensuing whether the venerable “thin skull” rule has been “watered down.” What do you think?