A critical analysis of the eggshell rule in the Nigerian law of torts, by Oyetola Muyiwa Atoyebi
Introduction
Tortuous liability refers to responsibility for damage, harm, or inconvenience occasioned by an action or inaction. Elementarily, to incur liability for damage or harm suffered, there must be the presence of a duty (which is primarily fixed by law and owed to persons generally), breach of the said duty, damage resulting from the breach, and the existence of a remedy for such breach.
A cardinal principle of the Law of Torts is the principle of causation and remoteness of damage. This provides that a tortfeasor can only be held liable for damages that are directly caused by their action or omission and such damage must be one that is a reasonably foreseeable and direct consequence of such act or omission.
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This can be translated to mean that a general defence to the extent of liability is that the damage suffered is not a probable consequence that can be anticipated by a reasonable man. The implication of this principle is that there must be a direct link between the severity of the act or omission and the resultant damage.
THE EGGSHELL RULE: THE APPLICATION AND ITS IMPLICATION
The eggshell rule is a legal doctrine applied in Tort law which has an identical replica in criminal law. The rule provides that a person would be liable for all damages and injuries suffered by virtue of his act or omission regardless of the pre-existing vulnerabilities of the victim that made them more susceptible to injury or aggravated the effect of the act.
The effect of the eggshell rule is that a tortfeasor shall be unable to limit the extent of his liability for damage with the defence that the victim had a pre-existing condition or injury that aggravated the damage beyond the reasonably foreseeable degree.
This rule dates back to the 1891 case of Vosburg v Putney, where a boy with an irritant microbial condition was kicked by his classmate which resulted in the loss of his leg. The court however, held that kicking was a wrongful act and the tortfeasor should bear all eventual liability irrespective of how inconsequential the force of the kick was in relation to the resultant injury.
The rule was also applied in the 1962 English case of Smith v Leech Brain & co, where an employee was splashed with molten metal in the factory. He died as a result of the injury which occurred in his lip, which already had malignant tissue. The court held that regardless of his condition and the fact that such an injury would never have resulted in death if all things were equal, the employer still bears full liability.
The eggshell rule appears to be based on the liability of a tortfeasor to be held in entirety for damage suffered or loss incurred provided that his act or omission was one that primarily breached his duty of care and is prima facie a wrongful act or omission irrespective of the unreasonableness of the resultant damage.
In the cases stated above, the kick and the factory incident were both cases of breach of the duty of care and although the damage suffered was over and beyond the breach, liability was fully attributed to the defendant.
It also appears to be an exception, or rather, a near departure from the rule of foreseeability that guides the extent of the liability of a tortfeasor. It is however worthy of note that this rule is relevant in relation to the extent of liability and not the fundamental existence of liability. Therefore, a person cannot be held liable for damage where he does not act in a manner that constitutes a wrongful act or omission. This rule would only come to play where the tortfeasor is indeed liable by virtue of the commission of an act or omission and the question for determination is simply whether he should bear full liability or not.
This rule is popularly described as “take your victim the way you find them” and the frailties and peculiarities of a victim are not considered in the application of this rule as the doctrine protects the right of a plaintiff with a condition that makes them more susceptible to injury. It is safe therefore to conclude that the eggshell rule is a plaintiff protection doctrine.
It has also been argued that the rationale behind the existence of this doctrine and the continued application of the same despite the departure of courts from similar legal doctrine is that the rule protects the objective of the Law of Torts which is deterrence. The rule ought to deter the commission of acts that breach the duty of care because you just never know what pre-existing condition the victim has.
THE SCOPE AND LIMITATIONS TO THE EGGSHELL RULE
The eggshell rule is generally applicable to all cases of physical injury. In the event of an existing vulnerability, the eggshell rule covers physical injuries caused where the act or omission of the defendant unearths a condition or frailty that has laid latent in the victim. It also covers injuries caused and damages suffered where a previously treated condition resurfaces as a result of the defendant’s action. Similarly, the eggshell rule is applicable in cases of known conditions that have never been treated or where an inevitable consequence of the condition is facilitated by the occurrence of the act.
For this doctrine to avail a victim, the court must however first determine whether the defendant is liable for a breach in the first instance. Where the defendant is not found liable for a breach, the extent of damage becomes immaterial. For the successful application of this rule therefore, a defendant must have been found liable as the doctrine only comes to play in the determination of the extent of the liability of a defendant that had been found liable for a breach.
In recent developments, some jurisdictions have extended the scope of application of the doctrine to include mental and economic injury. One of the cases worthy of note is the case of Bonner v United States[1] where the defendant was held liable for the mental illness suffered by the victim as a result of the car crash the defendant was responsible for, despite the victim’s previous psychological imbalances.
In the case of Colonial Inn Motor Lodge, Inc. vthe doctrine was further extended to property as the defendant had backed into a hotel building that was in bad shape and the building exploded. The court held that although it was an unforeseen consequence of his actions, his liability still extends to the explosion of the building, seeing that he is liable for the act of hitting the building.
The aforementioned case seems to provide that taking your victim as they are extends beyond persons and includes property. This now begs the question “whether this Can then be an overstretch in light of the fact that the rule ought to cover the frailties of the victim and the owner rather than the property in such an instance ought to be regarded as the victim”?
A riposte to the above buttresses the limitation of the application of the Eggshell rule which is the principle of Novus Actus Interveniens (intervening act), which provides that a defendant cannot be held fully liable where an injury is aggravated as a result of a separate action unconnected to the defendant’s act. It should be noted that this is a limitation and not a complete defence. What that means is that it is not an excuse to completely escape liability when it can be proven that the defendant’s actions did in fact, cause some form of damage. It merely limits the extent of the liability and excludes additional damages caused by subsequent independent acts that broke the chain of causation.
An instance, is where a woman with high blood pressure is almost hit and suffers shock and while being rushed to the hospital in an ambulance is subsequently involved in an accident, the driver of the car would only be held liable for the shock and not the subsequent injuries caused by the action.
For this exception to however avail a defendant, they must show that the subsequent act was unconnected to their act and the resultant damage from the culmination of both acts is largely caused by the second act and the subsequent act is not merely an inconsequential occurrence.
CONCLUSION
There have been debates over the decades as to the effect of the Eggshell rule on the principle of foreseeability that guides liability in the law of Torts. Some scholars are of the opinion that it completely relegates the principle and renders it where there is no effect, while others argue that it is merely an augmentation of the principle and a readjustment of the boundaries of what can be deemed as “foreseeable”.
These arguments and postulations regardless, the eggshell rule has been applied over the years and the law of Torts is yet to comfortably define the extent of the application of the rule as jurisdictions apply the rule with several modifications and varying degrees of limitation.
SNIPPET:
The effect of the eggshell rule is that a tortfeasor shall be unable to limit the extent of his liability for damage with the defense that the victim had a pre-existing condition that aggravated the injury or damage beyond the reasonably foreseeable degree.
Written by Oyetola Muyiwa Atoyebi, SAN with contributions from Tobenna D. Mogbo Email:atoyebi@omaplex.com.ng
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