Thin-Skull Plaintiffs, Socio-Cultural ‘Abnormalities’ and the Dangers of an Objective Test for Hypersensitivity

The extent to which "hypersensitivity" can serve as a legal basis for demanding additional compensation has always been a controversial issue in tort law. A key challenge facing courts lies in determining how the "thin-skull rule," traditionally related to physical conditions that predispose an individual to additional injury, can be applied to claims from "hypersensitive" plaintiffs citing personality-linked vulnerabilities of a religious, socio-cultural, or psychiatric nature. This article critically evaluates the viability of the "ordinary-fortitude test" adopted by the Supreme Court of Canada in Mustapha v. Culligan, and discusses the relative merits of a "multi-factorial test" in determining the admissibility of personality linked "thin-skull claims." In this regard, a fact-specific, contextual approach that considers the causalnexus between the defendant's negligence and the plaintiff's injury would provide a more flexible framework with which to measure liability than an artificially-defined "one-size-fits-all" standard of "psychological resilience" in an increasingly multicultural Canada.