Date: Tue, 9 May 2006 10:33:09 +1000

From: Neil Foster

Subject: Religious thin skulls

Dear Marc et al;

Two quick thoughts -

(1) At the risk of stating the obvious, the tort of false imprisonment recognises "confinement" as an actionable wrong. Has a court ever applied the "eggshell skull" rule to a false imprisonment case in determining the amount of damages? I would have thought so- eg the obvious case of someone who is claustrophobic being shut up in a small room. But I'm not aware of any specific cases. However, it may be worth noting that the eggshell skull rule has been applied outside the area of negligence and outside the question of traditional physical injury. In McColl v Dionisatos [2002] NSWSC 276 Young CJ in Eq applied the rule in a claim based on nuisance for property damages - see eg paras [27]-[38].

(2) Since you are looking at "religious eggshell skull" cases you have no doubt come across Kavanagh v Akhtar (1998) 45 NSWLR 588 - there the plaintiff, a Muslim woman who was physically injured while shopping and thus had a clear negligence claim, was forced by the medical condition she had to then cut her previously long hair, doing so without consulting her Muslim husband, which led to a strongly adverse reaction from her husband (who took the view, with evidence supported by an Imam, that women should not cut their hair without their husband's permission), which led to her suffering depression and a psychiatric condition. The Court of Appeal held that damages for the psychiatric injury were recoverable.

In Hunter Area Health Service v Marchlewski [2000] NSWCA 294 at para [81] religious beliefs of the plaintiff were taken into account in considering the effect of the autopsy of her child in relation to her psychological injury. (Both these examples taken from the latest edition of Harold's text.)

In any case, I must say that someone receiving an injury because they sought in jumping to escape confinement in a chair-lift overnight must surely be regarded as foreseeable and hence not too remote. After all, while the motive behind that particular decision to jump may be unusual, any number of quite probable other motives would be present - the person was afraid of heights or the dark, the person had an urgent other family commitment, the person was claustrophobic, etc etc. None of these reasons might perhaps be an entirely rational evaluation of the situation, but all of them are foreseeable in a general way, and so I would say a negligent chairlift operator should be liable for injury caused by jumping for whatever reason once their negligence has put the person in that situation. See eg Caterson v Commissioner for Railways (1973) 128 CLR 99.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> 9/05/06 4:15 >>>

Does anyone know of a negligence case in which a plaintiff received compensation for wrongful confinement?

I'm currently working on the notion of religious thin skulls. I'm considering the question of whether one could accept the general idea of religious thin skulls, but still rule out compensation for victims in cases such as Friedman v New York. Friedman and her male companion were left stranded on a chair-lift over night because of the negligence of the lift operators. Friedman jumped from the lift because she believed that her religious commitments precluded her, as an unmarried woman, from being alone with a man after dark in a place where she could not be checked upon.

Following the idea that the thin skull rule comes into effect only where an initially foreseeable injury grows worse because it interacts with a plaintiff's special vulnerability, one might argue that Friedman should have been denied compensation. Unlike the plaintiffs in cases such as Williams and Bright (where a Jehovah's Witness plaintiff's losses from an auto-accident increase as a result of the refusal to accept a blood transfusion), the plaintiff in Friedman didn't suffer any physical harm prior to her religiously motivated choice to jump. The thin skull rule doesn't come into effect because there is no foreseeable injury.

However, if her confinement to the lift counts as a compensable injury, then the thin skull rule seems to come into effect.

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