Thin ice principle and its applicability in

India with R v G case

Submitted by:-

HIMANSHU RAJA

IVth 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)

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 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 Signature of the candidate

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 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 thanks 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.

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 CONTENTS

Sr.No Topic Pg.No.

1. Introduction 5
2. Thin ice principle 5-7
3. Intervention and Breaking the Chain of Causation 7
4. Exception 8
5. R v G(2009) 1 AC 122 by IRAC method 8-9
5. Bibliography 10

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 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 completel y 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

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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 pre -
existing 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 defendant 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.
Blaue (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. There is no requirement of physical contact
with the victim if a trespassers 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) pre -
existent 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

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Intervention and Breaking the Chain of Causation

An obvious issue which arises with medical treatment 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 Melcherek v Steel:

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
being involved in a vehicular collision while being taken to a hospital), the tortfeasor
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 termed a coincidence.

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 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 tre atment of the
appellant, Mahony. It was held that there was no novus actus as a result of medical
treatment of injuries caused by the defendants negligence, unless such treatment is
inexcusably bad or completely outside the bounds of what a reputable medi cal
practitioner might prescribe.

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 defendants right to a fair trial been denied?

Rule
According to Baroness Hale, the Sexual Offences Act 2003 is designed not only to
protect children from pedophilia, but also to prevent 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
particular for the purposes of determining whether any impairment would be likely
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 impairments effects (medicine, therapy,
changes to lifestyle etc) and, but for these, the likely effect of the impairment would
be substantial.

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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.

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 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

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