Egg Shell Skull in UK Law

A claim will fail if the most that can be said is that the claimant's injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant: Wilsher v Essex Area Health Authority [1988] AC 1074. The claimant was born prematurely and as a result of clinical negligence he was given too much oxygen.

We think that this puts the position somewhat too high, for in considering whether the threshold of Article 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Isolated acts of even significant carelessness are unlikely to suffice.

Where there is no pecuniary loss involved, the question whether the other remedies that have been granted to a successful complainant are sufficient to vindicate the right that has been infringed, taking into account the complainant's own responsibility for what has occurred, should be decided without a close examination of the authorities or an extensive and prolonged examination of the facts.

Here it is the causing of the psychiatric harm which has itself been held to be the infringement of Article 8. Maladministration will not, however, infringe Article 8 simply because it causes stress that leads a particularly susceptible individual to suffer such harm in circumstances where this was not reasonably to be anticipated. The egg-shell skull principle forms no part of the test of breach of duty under the HRA or the Convention.

As to that, it has to be said that cases of this sort which are superficially similar are often found on closer examination to differ in important details. A blow sufficient to fracture an egg shell skull is very much less culpable than one which fractures a normal skull. An unlucky punch in the course of a spontaneous fight is very different from a wholly unprovoked blow to an innocent bystander.

All this means that Mr Yentob's phone was hacked at least twice a day, and often several times a day, for a substantial part of a period of about 7 years, though perhaps for not the whole of that 7 years. I expect the intensity rose as more and more people got used to the technique and its usefulness. All aspects of his personal and business life were exposed because of the nature of his use of voicemail.

I am therefore of opinion that any driver of a car should reasonably foresee that, if he drives carelessly, he will be liable to cause injury, either physical or psychiatric or both, to other users of the highway who become involved in an accident. Therefore he owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his M.E., was "an eggshell personality".