Thin ice principle and its applicability applicability in India with R v G case
Submitted by:HIMANSHU RAJA IV th Semester Roll No.-11 B.Com.L.L.B.(Hons.) Of Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University, Lucknow In April, 2017
Under the guidance of :Dr. Girjesh Shukla Assistant Professor Faculty of Law (DSMNRU)
pg. 1
CERTIFICATE
The project entitled “Thin ice principle and its applicability in India with R v G case ‘’ submitted to the Faculty of Law, Dr. Shakuntala Misra National Rehabilitation University, Lucknow for Law of Crimes-II , as part of Internal assessment, is based on my original work carried out under the guidance of Dr. Girjesh Shukla from March to April, 2017 . The research work has not been submitted elsewhere for award of any degree. The material borrowed from other sources and incorporated in the thesis has been duly acknowledged. I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.
Date: 10-04-2017
pg. 2
Signature of the candidate
ACKNOWLEDGEMENT
I express my humble thanks to Dr. Girjesh Shukla, Assistant Professor of Law, my subject teacher of Law of Crimes- II , under whose supervision the project has been made and without whose teachings and insights on the various concepts, the project could not have been fructified. I also extend my heartiest tha nks to my seniors for their insights into the concerned project and helping me with everything I asked them. The role of the Library Department & Computer Lab is noteworthy. All the staff members helped me generously in getting the materials and information I needed to complete the project.
pg. 3
CONTENTS
Sr.No Topic
Pg.No.
1. 2. 3. 4. 5. 5.
5 5-7 7 8 8-9 10
pg. 4
Introduction Thin ice principle Intervention and Breaking the Chain of Causation Exception R v G(2009) 1 AC 122 by IRAC method Bibliography
INTRODUCTION
The eggshell skull rule (or thin ice principle or you take your victim as you find him rule of the common law) is a well -established legal doctrine used in some tort law systems, with a similar doctrine applicable to criminal law. It means that frailty of the injured person is not a defense in a tort case. The “eggshell skull” or “eggshell plaintiff” rule states that someone who harms another must pay for whatever damage the injured person suffered, even if it was much worse than anyone would have expected. The “eggshell skull” rule is named after the example frequently used in law schools. The example describes an imaginary person who has an extremely thin skull that is as fragile as an eggshell, even though he looks completely normal. This person is hit in the head by someone else. A normal person would only have been bruised by the hit, but the person with the eggshell skull dies. The “eggshell skull ” rule says that the person who hit the eggshell-skulled person is responsible for the much greater harm caused by the death, not just the amount of harm that a normal person would have suffered.
Thin ice principle
The eggshell skull rule is a legal principle which provides that a wrongdoer must take his victim as he finds him. This means, that even if the damage suffered by the victim is more serious than that which an ordinary person would suffer because the victim has a special condition which the wrongdoer did not know about, the wrongdoer would still be responsible for the damage caused. An illustration of this principle can be found in cases such as Smith v Leech Brain & Co [1962] 2 QB 405 and Robinson v Post Office [1974] 1 WLR 1176. In Leech Brain, the plaintiff's husband worked for the defendant company as a galvaniser. As part of his work, he was required to lift articles into a tank of molten metal via a crane. He was burnt on the lip by molten metal in the course of his work and died of cancer three years later. It was not known at the time of the accident that he had any form of pre-malignant cancer or that the burn would activate a latent cancer condition in him. The court held nonetheless, that the employer was responsible for the man's death, because it was reasonably foreseeable that the man could be burnt during the course of his
pg. 5
employment even though it was not reasonably foreseeable that the burn would induce cancer.
This rule holds that a tortfeasor is liable for all consequences resulting from his or her tortious (usually negligent) activities leading to an injury to another person, even if the victim suffers an unusually high level of damage (e.g. due to a preexisting vulnerability or medica condition). The eggshell skull rule takes into account the physical, social and economic attributes of the plaintiff which might make him more susceptible to injury. It may also take into account the family and cultural environment. The term implies that if a person had a skull as delicate as that of the shell of an egg, and a tortfeasor who was unaware of the condition injured that person's head, causing the skull unexpectedly to break, the def endant would be held liable for all damages resulting from the wrongful contact, even if the tortfeasor did not intend to cause such a severe injury.
In criminal law, the general maxim is that the defendant must "take their victims as they find them", as echoed in the judgment of Lord Justice Lawton in R v. Bla ue (1975), in which the defendant was held responsible for killin g his victim, despite his contention that her refusal of a blood transfusion constituted novus actus interveniens.
The doctrine is applied in all areas of torts – intentional torts, negligence, and strict liability cases – as well as in criminal law. Ther e is no requirement of physical contact with the victim – if a trespasser ’s wrongful presence on the victim's property so terrifies the victim that he has a fatal heart attack, the trespasser will be liable for the damages stemming from his original tort.
The foundation for this rule is based primarily on policy grounds. The courts do not want the defendant or accused to rely on the victim's own vulnerability to avoid liability. The thin skull rule is not to be confused with the related crumbling skull rule in which the plaintiff suffers from a detrimental position (from a prior injury, for instance) preexistent to the occurrence of the present tort.
In the "crumbling skull" rule, the prior condition is only to be considered with respect to distinguishing it from any new injury arising from the present tort – as a means of apportioning damages in such a way that the defendant would not be liable for placing the plaintiff in a better position than they were in prior to the present tort
pg. 6
Intervention and Breaking the Chain of Causation
An obvious issue which arises with medical t reatment and homicide is what happens if a defendant harmed a victim in a way which should not inevitably have resulted in death, but nevertheless did because of inadequate medical treatment.
In order to break the chain of causation, reckless medical treatment is required. Negligence or incompetence is not enough.
Even before this principle was introduced, the 'substantial cause' test usually still operated to limit the scenarios in which medical treatment has an effect on causation. The reluctance of the court to allow medical treatment to break the chain of causation was discussed in Mel cherek
v S tee l :
Facts: doctors of of two victims decided to switch off the life support after there was serious damage to the brain. The issue was whether this was an intervening act to the original acts of the respective defendants.
Held: the original act of the defendant was still an operating and substantial cause of death. The treatment by doctors does not break off this chain.
Exceptions
Intervening cause is typically an exception to the eggshell skull rule. If an injury is not immediate, but a separate situation agitates the injury (such as the injured party bei ng involved in a vehicular collision while being taken to a hospital), the tor tfeasor is not liable under common law in Australia (see Haber v Walker [1963] VicRp 51; [1963] VR 339[12] and Mahoney v Kruschich Demolitions [1985] HCA 37; (1985) 156 CLR 522). In Haber v Walker[14] it was held that a plaintiff will not be liable for a novus actus interveniens (intervening act) if the chain of causation was broken by a voluntary, human act or, an independent event, which in conjunction with the wrongful act, was so unlikely as to be terme d a coincidence.
pg. 7
In Mahoney v Kruschich Demolitions, the plaintiff, Glogovic, was injured while working on the demolition of a power house for the respondent. While being treated for his injuries, his injuries were exacerbated by the negligent medical treatment of the appellant, Mahony. It was held that there was no novus actus as a result of medical treatment of injuries caused by the defendant’s negligence, unless such treatment is inexcusably bad or completely outside the bounds of what a reputable medical practitione r might pre scribe.
R v G(2009) 1 AC 122 by IRAC method
Facts
The defendant, aged 15, had sexual intercourse with a girl, aged 12 Consent was not at issue as sexual intercourse with a person aged under 13 is a statutory offence
Issue
Had the defendant’s right to a fair trial been de nied?
Rule
According to Baroness Hale, the Sexual Offences Act 2003 is designed not only to protect children from pedophilia, but also to pre vent children aged under 13 rom engaging in any sexual activity with others; and The legislation does require careful judgment and careful decisions on the part of the CPS in deciding whether it is practical to prosecution every act (or kiss) which constitutes sexual experimentation between young children
Analysis In this case was required to determine the meaning of ‘likely’ in the DDA, in parti cul ar for the purposes of determining whether any impairm ent would be ‘li kel y’ to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it: paragraph 6(1), Sch 1. This ‘benign doctrine’ provides protection to a person who has an impairment but who is not functionally ‘disabled’ because measures are being taken to avoid the impairment’s effects (medicine, therapy, changes to lifestyle etc) and, but for these, the ‘likely’ effect of the impairment would be substantial.
pg. 8
Conclusion The mental element of the offence under section 5, as the language and structure of the section makes clear, is that penetration must be intentional but there is no requirement that the accused must have known that the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be 13 or over.
pg. 9
Bibliography
1. PSA Pillai , Criminal Law , 12th Edition , Lexis Nexis 2. Gaur KD, Criminal Law : Cases and Materials, 2013, 6th Edition, Lexis Nexis ButterworthsWadhwa
Sites/ Links
1. https://indiankanoon.org 2. www.e-lawresources.co.uk 3. http://supremecourtofindia.nic.in 4. https://www.publications.parliament.uk
pg. 10
