The Thin-Skull Rule
One defense to negligence that is normally not accepted by the
courts is the assertion that the plaintiff was unusually vulnerable to
injury, in a way that was entirely unforeseeable by the defendant.
Imagine, for example, that the defendant carelessly swung a stick and
gave the plaintiff a glancing blow on the head, a blow that ordinarily
wouldn't do more than raise a bruise. This particular person, however,
turns out to have an unusually delicate skull, and so sustains serious
injuries.
In such a case, the defendant might claim that; while the
possibility of injuring someone with this sort of behaviour was
reasonably foreseeable, the extent of the injuries was not. The courts,
however, normally won't accept this argument. The ordinary rule is that
you take victims as they are, and if you have the misfortune to harm
someone particularly vulnerable through your negligent actions, that's
your bad luck.
Of course, the best defense to a charge of negligence is to
maintain that at least one of the basic elements was lacking; that an
incident was unforeseeable by a reasonable person, or that the cause of
the incident was too far removed from its effect. However, If negligence is
established, defenses like voluntary assumption of risk and
contributory negligence can reduce the liability of a defendant. Courts
do try to be reasonable and they work hard at appointing blame fairly.
Check your knowledge by completing Something to Think About 11 on the next page.