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

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

affirmed the Registrar's report but an appeal was allowed

by the Court of Appeal

who reduced the damages and on

further appeal to the Lords

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

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.

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.

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.

"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:

"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

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)

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

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.

Karlshamnos

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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