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

Article excerpt

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. …