law of tort

This article is written by Akshaya V, a student at CMR University, School of Law and Legal Studies, Bangalore. 


This article elucidates to understand the rule of the eggshell skull in tort and the basis on which the rule is applied with different attributes attached to it. 


Erstwhile, there was no principle of civil wrong but the king’s court gave remedies in case of any harm caused. there was no law Under the law of tort, when a person violates or infringes legal rights vested in others, he is said to have committed a civil wrong. When there is injuria sine damnum, that is to say, causation of legal injury without consequential damages, an act of tort is committed. Analytically, the law of tort is part of the law of obligations that if harm is done, the wrongdoer is obligated to compensate. Socially tort is to shift loss sustained to who has caused it or in some cases the loss is spread over a group of persons or even the whole community. 

Eggshell Skull Rule in the Law of Torts

In Civil disputes, the person who suffered legal injury is called the plaintiff and the person who causes it is known as the defendant. If the injury caused results in infringement of the law and if the same is proved by the plaintiff, the defendant is wholly liable. There are exceptions, that is to say, the defendant may not be held liable in cases of volenti non-fit injuria, inevitable accident, an act of God, mistake and in cases of private defenses. Generally, injury cases would be within the contemplation of the parties. But the question of law is whether the defendant is liable for injuries beyond his contemplation? The Egg Shell Skull rule puts down the liability of the defendant in such circumstances. 

The eggshell skull rule is also called “thin skull rule” which says that the frailty of a person to whom the injury is caused shall not be taken as a defense to reduce the liability on the defendant. This means that even in the worst of cases where the injury caused is beyond what was expected, the defendant shall still be liable for all the consequences pertaining to it. The term eggshell means serious head injury or brain damage due to a weaker skull. The defendant cannot argue on the victim’s vulnerability to escape liability. This is a well-established doctrine in the criminal law which says “take your victim as you find him” as said in the case of R v Blause (1975) applies in law of torts without any doubt. This rule applies to all areas of tort including strict liability, negligence, nuisance, trespass and intentional torts. The rule further clears that the tortfeasor need not be in physical contact with the potential victim. For instance, if the tortfeasor trespasses into a house, if that so terrifies the victim leading to a heart attack, the trespasser will be wholly liable. The principle necessitates that the defendant in a civil case shall take full responsibility in compensating regardless of the fact that the victim was susceptible than a normal person may have been. 

Does the victim have a claim? 

The rule of the eggshell skull can be applied and claimed in Court only in the case of physical injuries and not emotional injuries. Should the pre-existing health issue aggravated because of the harm caused negligently by the wrongdoer, they are liable to be claimed from. 

Basis of Eggshell Skull rule

The basis of the rule is that the tortfeasor is responsible for compensating an injured person and to accept him just as he is, including any pre-existing medical conditions that are not visible. There are two situations in eggshell skull rule, that is, intervening causes and issues of comparative negligence. When an intervening cause (that which occurs after committing negligence and breaking the chain of causation) aggravates the existing injury further, the Court may rule such injury as unforeseeable and thus not the responsibility of the defendant. However, the defendant shall not be asked to compensate. 

In a claim for negligence, the Judge should be convinced of the following essentials by the victim – 

  1. that the party at fault owed a duty of care towards him/her;
  2. that the party at faulty has breached his duty of care;
  3. that the breach caused severe injuries; and
  4. damages suffered like medical bills and loss of wages.

The rule protects the victim’s own vulnerability and over which they do not have any control. 

Eggshell Rule v Crumbling Skull Rule

Both the rules deal with cases of victims suffering from pre-existing medical conditions but are separated with a thin line of difference. The basis is stressed upon the stability of the medical conditions. The eggshell skull rule makes the defendant liable even to unforeseen injuries due to pre-existing yet stable medical conditions. The crumbling skull rule is all about is all about unstable medical conditions that the victim would have experienced anyway and need not be the consequence of the defendant’s negligence. The defendant shall not be held liable for such pre-existing damages. The eggshell skull rule is not to be confused with the crumbling skull rule in which the plaintiff suffers from a detrimental position pre-existent to the occurrence of the present port. For instance, if a person has a brittle bone syndrome, he is more likely to suffer from injuries from motor vehicle accidents for the unstable condition he is in. He cannot deny the defense taken in this case.

Voluntary intoxication of the defendant

Voluntary intoxication of any degree constitutes no defense to the commission of a crime. Should a person put himself in a position to not have a limit to his actions, he must be held to intend the consequences. In the case of People v Janiga, the defendant’s voluntary intoxication of methamphetamine, the eggshell argument failed because the plaintiff suffered an injury in a way that doctrine of crumbling skull rule would only apply. 


When there is a possibility of a victim suffering from unexpected severe injuries that may fall under the eggshell skull rule. The lawyer will present the argument to the Judge and the Judge may decide on a case-to-case basis for the application of the said rule. The final decision remains with the Court of law. 

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