Personal injury “Egg shell effect”

maggie1947

How and when is this applied ?
i had to have surgery on an injury to my shoulder,but it’s written in a report that I already had degenerative cartilage in my shoulder.
i had complained of a sore shoulder some years ago,but had not complained or even seen my gp about it in the last 5 years.
does this fall into “egg shell effect”?

DullGreyGuy

Eggshell Skull is a principle established in Owens v Liverpool Corp [1939] in which it is held that the tortfeasor has to take their victim as they find them and cannot use pre-existing conditions as a defence - in the case Owens suffered a fractured skull and Liverpool Corp tried to reduce payment on the grounds that he had a very thin skull so was more likely to be injured than if a normal person had sustained the same blow to the head. 

The report hopefully is clear on if they are saying the joint wasn't perfect beforehand or if its saying the joint was in the process of deteriorating and therefore the incident has simply hastened the inevitable

rigolith

They are trying to blag you. Who is trying to reduce the payout, the third party or your own insurers?

DullGreyGuy

rigolith said:

They are trying to blag you. Who is trying to reduce the payout, the third party or your own insurers?

Own insurers dont get involved in your injury claims (the most they'll do is appoint a lawyer to help you)

maggie1947

I got a report and it says I probably had a tear in cartilage before the accident,even though I had not seen my go in 5 years about it..
does the “ thin skull rule” apply if like me,had injured it years ago and not really been bothering me until the accident where I was brought to A&E and had to get surgery over it?

Does the “ crumbling skull rule” apply if I had injured it years ago and was still giving me alot of problems up until the accident.
(going to the go getting medication/treatment”.

DullGreyGuy

The crumbling skull principle applies to the pre-accident prognosis.

If there was a pre-existing tear but it was stable then the eggshell skull applies, if it was torn and continuing to deteriorate then the crumbling skull would. The crumbling skull principle however comes from Canadian common law Torts and hasnt well been taken up by the English courts. For example Reaney v University Hospital of North Staffordshire NHS Trust [2014] where the poor treatment caused both an acceleration and increased need for care the trust was found liable for the full cost of that care rather than the uplift from the care that had been predicted to be needed in the more distal future. 

maggie1947

so if the medical records show there was no treatment needed in years,it should be put down as thin skull?
(there was a tear,years ago,maybe it had healed and recent incident caused the real problems needing surgery.

rigolith

It doesn't matter what your condition was previously. A series of decisions have made it fairly clear that the liable party pays all of your costs. No deductions for prior conditions.

maggie1947

How much does a “crumbling skull” effect an award?
does the “eggshell effect “ just mean the award is the same as normal for the injury?

rigolith

maggie1947 said:

How much does a “crumbling skull” effect an award?
does the “eggshell effect “ just mean the award is the same as normal for the injury?

Yes, it has no effect at all. You get the same as you would have without the eggshell effect.

maggie1947

Sorry to keep bringing this up again,but I can’t get chatting to Solicitor as she is off on holidays..
so if I had a pre existing tear and it was stable for a few years ,the egg shell effect rule would come into play…?
would they not argue that it was going to happen at some stage and there former not have to pay for any future treatment that I will need??
i real appreciate your answers 
thanks