Academic journal article Dalhousie Law Journal

Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" and the Dangers of an Objective Test for Hypersensitivity

Academic journal article Dalhousie Law Journal

Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" and the Dangers of an Objective Test for Hypersensitivity

Article excerpt

Introduction

I. Facts of the case

II. Whither the primaiy/secondaiy victim dichotomy?

III. The dangers of adopting an "objective " test

Conclusion

Introduction

A fastidious consumer with a chronic obsession for order and perfection purchases a contaminated product which triggers an obsessive compulsive reaction consisting of repetitive ritualistic cleansing behaviour.1 A pedestrian who is almost run over by a drunk driver complains some weeks later of a mysterious severe pain on one side of the body.2 A worker seriously injured in a workplace accident refuses medical treatment on religious grounds, and suffers permanent paralysis as a result. Despite the seemingly diverse nature of these cases, they have one element in common. The victims in these cases possess personality-linked sociocultural, religious or psychiatric traits that predispose them to additional injury-injury which exceeds in magnitude the harm that a similarlysituated victim without those traits would suffer. A key challenge facing courts in considering the claims of hypersensitive plaintiffs lies in distinguishing between harm that is causally attributable-both in fact and in law-to the tortfeasor's negligence, and harm that is remote. Yet, the rules governing remoteness provide only limited guidance on the requirements for a successful action in a thin-skull claim involving a degree of hypersensitivity or vulnerability that sets a claimant apart from what is sometimes referred to in the jurisprudence as the "Canadian mainstream."3

Even without the issue of hypersensitivity, liability for psychiatric injury is generally considered a controversial area in the tort of negligence.4 The situation becomes even more complex when courts have to grapple with issues of legal causation when a plaintiff claims additional damages flowing from a "thin skull" or some special vulnerability. The central difficulty facing courts lies in determining whether, and to what extent, the "thin-skull rule," so famously articulated in cases like Smith v. Leech Brain & Co.,5 should be applied to "sensitivities of the mind or personality" in the same way it is applied to claims involving vulnerabilities of the body.6

The Supreme Court's 2008 decision in Mustapha v. Culligan1 has refocused attention on the thorny issue of how to resolve thin-skull cases with an element of personality-based hypersensitivity or vulnerability, even though the judgment in favour of Culligan was not entirely expected.8 Although the decision in Mustapha is already several years old, the questions that were raised in that case remain controversial, and will continue to animate debates on how far the protective arm of the law should extend in respect of "psychologically vulnerable" claimants.

This article seeks to explore the legal significance of socio-cultural, religious, psychological or other personality-based factors that may predispose a thin-skull victim to a higher than expected magnitude of injury-whether of a psychiatric or physical nature. One thin-skull scenario might involve a mental condition-such as obsessive compulsive disorder-which produces a heightened psychiatric reaction to a negligent act. In another, religious beliefs might prohibit an injured claimant from seeking medical treatment, causing the physical injuries to further worsen. While Mustapha was not primarily a case involving religious sensitivity or physical injury, the Supreme Court's endorsement of an objective-fortitude test may create difficulties in the future for claimants with specific psychological, religious, cultural or other "non-mainstream" qualities seeking additional compensation for injuries arising from their unique vulnerabilities. The concern here is not with the Supreme Court's (arguably justified) dismissal of Mustapha's claim per se, but with the possible limitations that an objective fortitude test would have in evaluating when (if ever) cultural factors or psychiatric vulnerabilities may be admissible, for the purpose of imposing additional liability, in future cases involving thin-skull claimants. …

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