I. THE THIN SKULL RULE AND THE FAULT:
The Thin Skull rule is considered in the element of causation. However, due to the flexible attitude of the courts and case law (S v Van Den Burg) that has considered the foreseeability theory in legal causation. It can be said that the rule traverses a very thin line between causation and fault, specifically strict liability.
The distinction of the thin skull as a ‘magic circle’ by Dean Prosser:
“It is as if a magic circle were drawn about the person, and one who breaks it, even by as much as a cut finger, becomes liable for all resulting harm to the person although it may be death. The defendant is held liable when his negligence operates upon a concealed physical condition, such as pregnancy, or a …show more content…
This essay will show that the Thin Skull rule is too broad which allows for remnants of strict liability within the element of causation. Thereby, relying on the element of fault to counteract such remnants. In the Van As case the accused had smacked the obsess deceased over the head. The deceased fell over and hit is head on concrete whilst rolling resulting in death. The accused was charged with culpable homicide but not guilty. However, to demonstrate my point certain facts will be changed within the Van As case “ referred to as Van As II”. In Van As II the accused and the obsess deceased are friends, who regularly great each other by playful hitting each other. Looking at the element of causation the accused conduct is clearly the factual cause of the deceased death. But for the accused conduct the deceased would not have fallen and hit his head on concrete. However, establishing legal causation the court considers the deceased as they were, which was obese. The Thin Skull rule prohibits the vulnerability (obesity) of the victim to be used as a defence against liability for the accused. Hence, the legal causation theories now consider the normal human experience when one hits an obese person. This may be reasonable in instances where the existing predisposition is obvious and visible. However, where it is internal like hypertension or psychological like undiagnosed epilepsy. The demand of the law on the accused becomes unreasonable and contrary to the principle lex cogit ad impossiblia (the law does not expect the
The Thin Skull rule is considered in the element of causation. However, due to the flexible attitude of the courts and case law (S v Van Den Burg) that has considered the foreseeability theory in legal causation. It can be said that the rule traverses a very thin line between causation and fault, specifically strict liability.
The distinction of the thin skull as a ‘magic circle’ by Dean Prosser:
“It is as if a magic circle were drawn about the person, and one who breaks it, even by as much as a cut finger, becomes liable for all resulting harm to the person although it may be death. The defendant is held liable when his negligence operates upon a concealed physical condition, such as pregnancy, or a …show more content…
This essay will show that the Thin Skull rule is too broad which allows for remnants of strict liability within the element of causation. Thereby, relying on the element of fault to counteract such remnants. In the Van As case the accused had smacked the obsess deceased over the head. The deceased fell over and hit is head on concrete whilst rolling resulting in death. The accused was charged with culpable homicide but not guilty. However, to demonstrate my point certain facts will be changed within the Van As case “ referred to as Van As II”. In Van As II the accused and the obsess deceased are friends, who regularly great each other by playful hitting each other. Looking at the element of causation the accused conduct is clearly the factual cause of the deceased death. But for the accused conduct the deceased would not have fallen and hit his head on concrete. However, establishing legal causation the court considers the deceased as they were, which was obese. The Thin Skull rule prohibits the vulnerability (obesity) of the victim to be used as a defence against liability for the accused. Hence, the legal causation theories now consider the normal human experience when one hits an obese person. This may be reasonable in instances where the existing predisposition is obvious and visible. However, where it is internal like hypertension or psychological like undiagnosed epilepsy. The demand of the law on the accused becomes unreasonable and contrary to the principle lex cogit ad impossiblia (the law does not expect the