civil-law common-law tort
Eggshell skull rule in tort law
<p>In the case <a href="https://www.lawnow.org/whatever-happened-to-mustapha-v-culligan/" rel="nofollow noreferrer">Mustapha v Culligan of Canada Ltd.</a>, the plaintiff Mustapha had purchased bottled water from Culligan that contained dead flies. This image caused significant psychological harm leading Mustapha to develop  a major depressive disorder that made it difficult for him to carry out everyday activities. However, his claim failed because although this extreme reaction was imaginable, it was not reasonably foreseeable.</p>
<p>The Supreme Court decision takes into account that if the defendant knew of these conditions, their plaintiff’s injury may have been reasonably foreseeable to the defendant but because there was no such evidence the damage was not reasonably foreseeable. Is this consistent with the eggshell rule in tort law, which states that a tortfeasor is liable for all consequences resulting from their negligence, even if the victim suffers an unusually high level of damage because of pre-existing conditions?</p>

<h2>The initial injury must be foreseeable to engage the eggshell skull rule</h2>
<p>From the appeal court judgement (my emphasis):</p>
<blockquote>
<p>The test for the existence of a duty of care -- and, therefore, for liability -- in cases of psychiatric harm is whether it is reasonably foreseeable that a person of <strong>normal fortitude or sensibility</strong> is likely to suffer some type of psychiatric harm as a consequence of the defendant's careless conduct.</p>
</blockquote>
<p>This does not conflict with the eggshell skull rule because <em>if</em> “a person of normal fortitude or sensibility is likely to suffer some type of psychiatric harm” then Mustapha’s extra sensitivity would lead to greater loss (and higher damages) than that “normal” person who suffered less psychiatric harm. However, if a normal person is not likely to suffer harm then the injury (in whatever severity) is not foreseeable.</p>
