THE DEMISE OF THE THIN SKULL RULE?
| Published date | 01 July 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02429.x |
| Date | 01 July 1977 |
THE
MODERN
LAW
REVIEW
Volume
40
July
1977
No.
4
THE
DEMISE
OF
THE
THIN
SKULL
RULE?
THE
object of this article is two-fold; first to look at the nature and
operation of the thin skull rule; and secondly to consider whether
the rule continues to serve any useful purpose.
Lord Parker
C.J.,
sitting as a trial judge in
Smith
v.
Leech
Brain
and
Co.
Ltd.l
declared that:
“
It
has always been the law of this
country that
a
tortfeasor takes his victim as he finds him.” With these
words he held the thin skull rule to have survived
The
Wagon
Mound
(No.
In the former case Smith was burnt on the lip in the course
of his employment and subsequently developed cancer from which he
died. Medical evidence showed a pre-existing cancerous condition
unknown to anyone. Lord Parker, having a number of options open
to him, accepted
The
Wagon Mound
as the proper test of remoteness,
although not applicable in the case before him.6 In finding the defend-
ants liable for the death of Smith his Lordship stressed that the test
was not whether cancer and death were foreseeable as resulting from
the bum but whether the employers,
1
C19621 2 Q.B. 405, 414, approved by the Court of Appeal
in
Robinson
V.
The
post Ofice
[I9741 2 All
E.R.
737.
2
The classic formulation of the thin skull rule is by Kennedy
J.
in
Dulieu
v.
White and
Sons
C19011 2 K.B. 669, 679.
“
If a man is negligently run over or
otherwise negligently injured in his body, it is no answer to the sufferer’s
claim
for
damages that he would have suffered less injury,
or
no injury at
all,
if
he had not
had
an
unusually thin skull
or
an unusually weak heart.” See also
Clippens Oil
Co.
Lfd.
V.
Edinburgh and District
Wafer
Trustees
C19071 A.C. 291, 303
H.L.(Sc.);
Owens
V.
Liverpool Corporation
C19391
1
K.B. 394, 400;
Bourhill
v.
Young
C19431
A.C. 92, 109.
“
But quite apart from
[Dulieu
v.
White and
Sonsl,” Lord Parker
said, “as is well known, the work of the
courts
for years and years has gone on
on that basis” C19621
2
Q.B. 405, 414.
R.
E.
Keeton in
Legal
Cause
rn
the Law
of
Torfs
(1963), p. 67, describes this as
“
the old soldier’s rule.”
3
Overseas Tankship
(U.K.)
Lfd.
v.
Morts Dock and Engineering
Co.
Ltd. (The
Wagon Mound)
C19611 A.C. 388; for convenience
of
reference,
The Wagon Mound.
4
[I9621
2
Q.B. 405; the arguments of both sides are summarised by Lord Parker
at pp. 413-414. See also James,
Polemis: The Scotch’d Snake
C19621 J.B.L. 146,
148.
5
There was, of course, the binding decision by the Court of Appeal in
Re Polemis
&
Furniss. Withy
&
Co.
119213
3
K.B.
560; for convenience
of
reference,
Re
Polemis;
followed in
Thurogood
v.
Van Den Berghs and Jurgens Ltd.
[1951]
2
K.B.
537. The position now
is
that
The Wagon Mound
has been followed, rather than
Re
Polemis,
in
all
courts;
Hughes
V.
Lwd Advocufe
C19631
A.C.
837
(H.L.);
Robin-
son
v.
The Post Ofice
[I9741 2 All
E.R.
737 (C.A.);
Weiland
V.
Cyril Lord Carpets
Ltd.
C19691 3 All
E.R.
1006
(Eveleigh
J.)
6
His Lordship felt that the case before him was one that
“
came within the old
principle.”
377
VOL
40
(4)
1
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