The Influence Of Special Constitution On Tort Liability

Tort cases involving victims with special constitution, so-called “eggshell skull” cases intort law of Common law countries, are these kind of cases in which the damage caused is farbeyond the expected degree because of some special physical fitness of the victim. In thisarticle the auther wants to do some academic research to define the tort liability and clarifythe extent of liability in such cases.Foreign tort law practice has unanimously defined a basic rule that in such cases, thedefendant still needs to accept all the responsibility resulted from his tortious act without anydefence to the victim for the special constitution(“eggshell skull” rule). It is worthy for us tofind out the policy implied behind the rule, it is even more important for us to make outwhether there is sufficient theoretical support. With the increasing number of such casesoccurred in our tort law practice and the ignorance of our civil legislation, it makes sense thatwe learn the rules and experiences of foreign countries.To find out how the factor of special constitution will influence the tort liability, there aretwo paths in theory. One is to find the relationship between special constitution and causality,the other way is to research on the relationship between special constitution and fault. For thetime being, scholars mainly focus on analysis and study through the former path, and hasgained considerable results., the formation and development of foreseeable theory, theinheritance and promotion of risk theory, the discrimination of condition and reason, they alltry to achieve the target of giving theoretical support to “eggshell skull” rule, from differentlevels to different perspectives. But from the analysis and argumentation of these scholars’,we can find three unavoidable and insolvable problems. Firstly, in the height of moral andpolicy, we can’t give absolute support or pressure to either sides, because neither the victimnor the defendant can be reasonably blamed. Secondly, the attention obligation andresponsibility of tort-feasor can’t be consistently arranged, no one can accept that he shouldbe so careful to prevent the risk of damage an”eggshell skull” person, but he have toundertake the responsibility. Thirdly, it’s hard to make judgment accurately on these casesthrough this traditional analysis, the degree of the weakness can not be easily analyzed through logical inference.In this case, we decide to give up the former path, focusing on fault, and use method ofeconomic analysis. We re-learn the relationship between fault and responsibility with thebreakthrough point of attention obligation, and try to obtain an operational solution. Wedistinguish intent from negligence, assign the best attention obligation in both circumstancesat the name of minimum social cost, person who violate the best attention obligation would bejudged faulty, so the bound of tort liability can be defined. When the infringer act intentionally,he has to undertake all the responsibility whether the victim has taken defence or not. Whenthe infringer act with negligence, the subjective state of victim should be judged according toa strict standard of attention obligation, so as to determine whether to apply the rule ofcontributory negligence.The conclusion basically supports the appliance of “eggshell skull” rule, what’s more,we provide a clearer way of analysis which may reach an accurate examination of specialconstitution. Regrettably, the path we choose give up the consideration of legal policy.