Religious Practice as a "Thin Skull" in the Context of Civil Liability

By Redko, Olga | University of Toronto Faculty of Law Review, Winter 2014 | Go to article overview

Religious Practice as a "Thin Skull" in the Context of Civil Liability


Redko, Olga, University of Toronto Faculty of Law Review


I     INTRODUCTION  II    WHAT IS PROTECTED? UNPACKING SOMETIMES CONFLICTING       UNDERSTANDINGS OF THE INDIVIDUAL        The Private Law Conception       The Public Law Vision  III   AIMS OF THE THIN SKULL RULE: AN OVERLAP WITH FUNDAMENTAL       FREEDOMS PROTECTION?  IV    THE BALANCING ACT BETWEEN PRIVATE INDIVIDUALS        Theoretical Considerations and Difficulties       A Proposed Approach to Balancing 71  V     CONCLUSION: THE PROBLEM OF SENSIBLE LIMITS 

I INTRODUCTION

In 1995, the Federal Court of Canada issued a ruling upholding the constitutionality of the Royal Canadian Mounted Police's policy allowing practicing Sikh officers to wear turbans instead of traditional RCMP caps. (1) In the majority opinion, Justice Reed noted that tolerance for public demonstrations of religious symbols constitutes a hallmark of Canada's pluralistic and multicultural society. (2) Allowing Sikh officers to don religious symbols was one form of reasonable accommodation of religious behaviour, a practice whose use expanded (3) in light of the adoption of the Canadian Charter of Rights and Freedoms, (4) and which has been seen as part and parcel of the "right to participate fully in society without compromising the tenets of one's faith." (5)

Now imagine if the same practicing Sikh chooses to wear the turban rather than a helmet when riding his motorcycle. Such a scenario is not improbable: certain jurisdictions explicitly exempt practicing Sikhs from wearing helmets, which would otherwise be obligatory for motorcyclists. (6) This kind of legislation is a logical manifestation of the policy of reasonable accommodation. (7) In fact, it has arguably become necessary in light of some human rights tribunals finding that legislation requiring Sikhs to use motorcycle helmets constitutes discrimination on the basis of religion. (8)

But it is not difficult to envision this observant Sikh motorcyclist becoming involved in an automobile accident caused by the negligence of another driver. Where a helmet would have prevented serious head injury, the turban does not, and the Sikh suffers significant brain damage. He sues the negligent driver for compensation for the full extent of his substantial injuries. Yet the driver claims that the compensation should be limited to the injuries that the victim would have suffered if he had been wearing a helmet, since he had chosen not to wear one. How far should the driver's liability extend in this case--that is, for what injuries (or what extent of the injuries) should the clearly negligent driver be liable?

Consider also a devout Jehovah's Witness who, upon being severely injured though the negligent act of another, refuses a necessary blood transfusion and consequently suffers a drastically more serious injury than she would have with the transfusion. Again, the question of the victim's conduct--this time after the accident--arises in determining the scope of the negligent actor's liability. Should the Jehovah's Witness be denied compensation for the injury that would have been prevented by the blood transfusion? Or should a court respect her decision to act in accordance with her religious beliefs and consequently award damages commensurate with the full extent of her injury? Such a question is far from theoretical: cases exactly like this have occurred in the United States, (9) and it is likely only a matter of time before Canadian courts are faced with the challenge of allocating liability under similar facts.

In the relatively rare cases where injuries have been exacerbated as a result of victims' religiously motivated acts, judges in the United States have approached the question of liability by asking whether that act constitutes a "thin skull" (or "eggshell skull", as it is occasionally known) that heightens the victim's susceptibility to harm. (10) The idea underlying the thin skull rule, as it is known both in the common law (11) and, increasingly, in Quebec's civilian jurisprudence, (12) is that individuals who suffer from a pre-existing condition that makes them prone to harm in a way that others are not should not be denied recovery on the basis that this condition is unknown to the defendant.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Religious Practice as a "Thin Skull" in the Context of Civil Liability
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.