The Gazette 1980

GAZETTE

APRIL 1980

The End of the "Edison"?

EGGSHELL SKULLS AND IMPECUNIOUS PLAINTIFFS

By ANTHONY KERR, B.A. (Mod.), LL.M., Assistant Lecturer in Law, U.C.D.

The decision of the House of Lords in Owners of Lies- bosch Dredger v. Owners of SS Edison 1 has always been taken as laying down that, on the part of a plaintiff damaged by the tort of a defendant, increased loss due to the plaintiff's impecuniosity was irrecoverable. A dredger was sunk and rendered a total loss as a result of the admitted negligence of the defendants. The owners of the dredger required it for the performance of a contract, delay in the completion of which exposed them to heavy penalties; but they did not have sufficient funds to enable them to replace the dredger which had been sunk, although one could have been obtained if they had sufficient funds. So they hired a dredger which they eventually purchased. In their action they claimed the actual value of the "Liesbosch", reasonable expenses while the work was stopped, the hiring expenses of the second dredger and the cost of its subsequent purchase. The Registrar of the Admiralty Division allowed the claim and awarded £19,820. Langton J. on appeal 2 affirmed the Registrar's report but an appeal was allowed by the Court of Appeal 3 who reduced the damages and on further appeal to the Lords 4 their appeal was dismissed. After stating that the object of compensation in negli- gence was to provide a sum of money as would replace the plaintiffs in the same position as if the loss had not been inflicted on them, Lord Wright, with whom the remainder of the law lords agreed, then stated that the compensation was to be assessed as if the plaintiffs had been able to go into the market and buy a dredger to replace the "Liesbosch". Their want of means, their impecuniosity was not to be taken into account. Despite the further extra judicial comments on this case by Lord Wright 5 the decision is still a curious one and somewhat difficult to understand. It sits uneasily with the principle that a tortfeasor takes his victim as he finds him — if you run over a person earning a large salary the damages will be higher than if you ran over an unemployed person - in physical injury cases, the "eggshell skull rule" accepted by the Supreme Court in Burke v. John Paul and Co. Ltd. 6 Here the plaintiff, who was an employee of the defendant, was injured whilst cutting steel bars by means of a hand-operated cutting machine. The blades of the machine were blunt and this caused the plaintiff to exert a greater physical effort during his work than would have been necessary if the blades were not blunt. The plaintiff tore his abdominal muscles and developed a hernia. At the trial of the action, before McLoughlin J. and a jury, in which the plaintiff claimed damages for the negligence of the defendant, the plaintiffs case was withdrawn from the jury because evidence was given that a hernia usually developed where there was an area of congenital weakness of the abdomen, and McLoughlin J. decided that there was not sufficient evidence to justify a finding that the defendant could have reasonably foreseen that

the plaintiff would have developed a hernia as a result of operating the machine. The Supreme Court allowed the plaintiffs appeal and ordered a new trial. Budd J. 7 pointed out that McLoughlin J.'s decision appeared to rest on the test of foreseeability as adopted by the Privy Council in Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd.* The Privy Council there said that, in determining liability for the consequences of a tortious act of negligence, the test is whether the damage is of such a kind as a reasonable man should have fore- seen. The application of this test led McLoughlin J. to the conclusion that since the plaintiffs predisposition to getting a hernia would not be discovered on any ordinary examination it was impossible for the defendants to know of this predisposition and that therefore they could not have foreseen that the use of extra exertion and pressure by the plaintiff in cutting the bars would result in a hernia developing. But as Budd J. then went on to point out the answer to this was the "eggshell skull rule" and stated that that rule had in no way been impugned by the Privy Council decision in the Wagon Mound. He cited Lord Parker C.J. from Smith v. Leech Brain and Co. Ltd. 9 "It has always been the law of this country that a tortfeasor takes his victim as he finds him," and Lord Parker C.J himself went on to cite Kennedy J. in Dulieu v. White and Sons: 10 "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." This means that the amount of damage will depend on the characteristics and constitution of the victim and upon the operation of any new risks to which he is exposed as a result thereof. As Hepple and Mathews 11 have asked, what is the logical justification for excluding from this doctrine of taking the victim as you find him his want of means? The New Zealand Court of Appeal in Bevan Investments Ltd. v. Blackhall and Struthers (No. 2) 12 mentioned that it might be questioned how far the decision in the "Edison" still represented the law, since the Privy Council in Muhammed Issa el Sheikh Ahmen v. Ali n in an action in contract, and without referring to the "Edison", permitted a plaintiff to recover for the increased loss due to his impecuniosity. Applying contractual rules of remoteness the damages consequent on impecuniosity were not too remote because the loss was such as might reasonably be expected to be in the contemplation of the parties as likely to flow from breach of the obligation undertaken. Additionally, Lord Wright himself in Monarch Steamship Co. Ltd. v. Karlshamnos 14 referred to the "Edison" in language evidently accepting that on the facts of a given case impecuniosity might fall within the reasonable contemplation principle and said

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