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Date:
Tue, 9 May 2006 15:40:52 -0300
From:
Marc Ramsay
Subject:
Religious thin skulls
Dear
Neil,
Your
comments are very helpful, but I'm still looking for a negligence
case on this point.
I
need to support the claim that the confinement counts as a harm
in the context of negligence. I'm not entirely comfortable relying
on false imprisonment here because I've come up against the response
that doing so collapses the distinction between trespass and negligence.
So I am looking for a case in which negligence, similar to that
in Friedman, has led to the accidental confinement of a
plaintiff and the plaintiff was awarded damages for that confinement.
In short, is negligently depriving a person of their freedom actionable
in itself?
Most
people that I've spoken with have answered "yes". But
I seem to need a case that supports this claim. And no one has been
able to think of a specific case that confirms it.
I
agree with your other comments on the issue of foreseeability, but
I can't set aside the issue of whether confinement counts as a harm.
I need to be able to speak to other cases where a plaintiff's religious
response to confinement results in a physical injury; in other cases
of this type it may or may not be the case that the decision to
jump would be foreseeable (predictable non-religious reasons for
jumping or incurring the injury might not be present).
Regards,
Marc
Quoting
Neil Foster:
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) 28 CLR 99.
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