I INTRODUCTION II WHAT IS PROTECTED? UNPACKING SOMETIMES CONFLICTING UNDERSTANDINGS OF THE INDIVIDUAL The Private Law Conception The Public Law Vision III AIMS OF THE THIN SKULL RULE: AN OVERLAP WITH FUNDAMENTAL FREEDOMS PROTECTION? IV THE BALANCING ACT BETWEEN PRIVATE INDIVIDUALS Theoretical Considerations and Difficulties A Proposed Approach to Balancing 71 V CONCLUSION: THE PROBLEM OF SENSIBLE LIMITS I INTRODUCTION
In 1995, the Federal Court of Canada issued a ruling upholding the constitutionality of the Royal Canadian Mounted Police's policy allowing practicing Sikh officers to wear turbans instead of traditional RCMP caps. (1) In the majority opinion, Justice Reed noted that tolerance for public demonstrations of religious symbols constitutes a hallmark of Canada's pluralistic and multicultural society. (2) Allowing Sikh officers to don religious symbols was one form of reasonable accommodation of religious behaviour, a practice whose use expanded (3) in light of the adoption of the Canadian Charter of Rights and Freedoms, (4) and which has been seen as part and parcel of the "right to participate fully in society without compromising the tenets of one's faith." (5)
Now imagine if the same practicing Sikh chooses to wear the turban rather than a helmet when riding his motorcycle. Such a scenario is not improbable: certain jurisdictions explicitly exempt practicing Sikhs from wearing helmets, which would otherwise be obligatory for motorcyclists. (6) This kind of legislation is a logical manifestation of the policy of reasonable accommodation. (7) In fact, it has arguably become necessary in light of some human rights tribunals finding that legislation requiring Sikhs to use motorcycle helmets constitutes discrimination on the basis of religion. (8)
But it is not difficult to envision this observant Sikh motorcyclist becoming involved in an automobile accident caused by the negligence of another driver. Where a helmet would have prevented serious head injury, the turban does not, and the Sikh suffers significant brain damage. He sues the negligent driver for compensation for the full extent of his substantial injuries. Yet the driver claims that the compensation should be limited to the injuries that the victim would have suffered if he had been wearing a helmet, since he had chosen not to wear one. How far should the driver's liability extend in this case--that is, for what injuries (or what extent of the injuries) should the clearly negligent driver be liable?
Consider also a devout Jehovah's Witness who, upon being severely injured though the negligent act of another, refuses a necessary blood transfusion and consequently suffers a drastically more serious injury than she would have with the transfusion. Again, the question of the victim's conduct--this time after the accident--arises in determining the scope of the negligent actor's liability. Should the Jehovah's Witness be denied compensation for the injury that would have been prevented by the blood transfusion? Or should a court respect her decision to act in accordance with her religious beliefs and consequently award damages commensurate with the full extent of her injury? Such a question is far from theoretical: cases exactly like this have occurred in the United States, (9) and it is likely only a matter of time before Canadian courts are faced with the challenge of allocating liability under similar facts.
In the relatively rare cases where injuries have been exacerbated as a result of victims' religiously motivated acts, judges in the United States have approached the question of liability by asking whether that act constitutes a "thin skull" (or "eggshell skull", as it is occasionally known) that heightens the victim's susceptibility to harm. (10) The idea underlying the thin skull rule, as it is known both in the common law (11) and, increasingly, in Quebec's civilian jurisprudence, (12) is that individuals who suffer from a pre-existing condition that makes them prone to harm in a way that others are not should not be denied recovery on the basis that this condition is unknown to the defendant. (13) In short, the defendant in a case of negligence must take his victim as he finds her and compensate her for the harm that arises out of her unique vulnerabilities.
The thin skull rule has, in large measure, been applied strictly to pre-existing physical conditions which are not subject to any form of the plaintiff's control. (1) 4 Should a religiously motivated decision be treated in kind, as merely something that independently enhances a plaintiff's susceptibly to harm? Is it a "thin skull" in the same way that a physical predisposition to injury is?
This question is difficult to unpack, and doing so raises multiple and interconnected paths of inquiry--albeit ones that, I contend, can be united under an approach similar to the one used by the Supreme Court in Syndicat Northcrest v Amselem (15) to reconcile competing public and private rights and obligations. Understanding the scope of the thin skull principle requires examining the purposes underlying the rule and the role it plays in the broader context of Canadian civil liability jurisprudence. If the concern is about the inherent characteristics of an individual, does the notion of the "thin skull" extend to actions taken on the basis of personal beliefs--that is, are religious beliefs sufficiently "inherent" to an individual such that any acts arising from these beliefs are seen as an extension of the immutable features of the body? Is the private law even equipped to make judgments about what sorts of choices deserve protection or what aspects of an individual are not subject to a person's control? And how does the private law's conception of religiously motivated actions affect the balance of interests between plaintiffs and defendants in a civil liability claim?
Even an initial foray into these questions would be lacking if it failed to venture beyond the realm of the private law. Refining our understanding of what "susceptibility" means for a religious plaintiff requires expanding the inquiry into an examination of how individuals' fundamental freedoms are understood and protected in the public law context. Assessing why certain aspects of an individual's personality merit constitutional protection vis-a-vis that person's interaction with the state, for example, can help shed light on the extent to which such protections may be appropriate in the private law, which is concerned with balancing the interests of supposedly equal, autonomous individuals. (16) In particular, the question of what choices receive protection in the public law context can suggest where courts that adjudicate private disputes ought to fall in the balance between treating plaintiffs fairly and establishing some limits to the scope of what is considered the legal "susceptibility" of a victim.
To explore these questions and to pursue a more complete picture of personal susceptibility in the private law, I will seek to unite multiple lines of inquiry. I will first explore how the private law understands the role and abilities of an individual in the context of a civil liability claim. This conception will be paralleled with the manner in which the public law, and human rights legislation in particular, envisions the individual, especially the aspects of individual personality and the forms of autonomy that receive special protection from the state. I will consider how these dual understandings may be brought to bear upon the extent to which the thin skull principle is itself an effort to understand the individual victim.
Going further, I will consider whether the aims of the thin skull principle may help to delineate the scope of the notion of susceptibility. How closely does the rule's purpose fit within the approaches that courts and scholars have developed to protecting fundamental freedoms within the private law? This is important when we consider the key difference in who plaintiffs face when trying to assert their fundamental rights in the public law context (that is, the state) versus their adversaries in private law claims (other private, presumably equal actors). If the actors in public and private litigation are envisioned so differently, it may behoove us to look to the underlying purposes of the thin skull doctrine to determine whether they dovetail with the aims ascribed to human rights safeguards. If so, such confluence may override concerns about the differences between certain doctrinal conceptualizations of a plaintiff in a public versus a private setting. This question will be the subject of the third section of the paper.
Finally, I will examine how all of the previous considerations can be brought to bear on the balancing exercise that courts must ultimately undertake when assessing the appropriateness of expanding the application of the thin skull rule in the common law (or in Quebec's private jurisprudence). In particular, I will draw upon the framework for analysis established by the Supreme Court in Syndicat Northcrest v Amselem as a suggested means of locating the appropriate balance between plaintiffs' and defendants' rights, and between the principles of civil liability and the concern about respecting individuals' protected freedoms. This balance must be sought with reference to key (though often competing) principles of civil liability (the incorporation of a corrective justice approach to establishing the scope of liability versus the importance of causation) and public law protections for fundamental freedoms, as well as with consideration for the public policy consequences of accepting religious choice as a thin skull in a particular case.
Importantly, the framework I suggest will not yield a general and definitive answer to whether religion can be treated as a thin skull in all cases. Courts' approaches to the protection of fundamental liberties within both the...