Date: Wed, 10 May 2006 16:29:29 +0930

From: Gary Davis

Subject: Religious thin skulls

Check out Smith v Iffla (1881) 7 VLR 435. Plaintiff detained for two months in a lunatic asylum. Recovers 520 pounds damages against the medical practitioner who negligently signed a certification of lunacy. The case is extensively discussed by Peter Heffey in "Negligent Infliction of Imprisonment: Actionable 'Per Se" or 'Cum Damno'?" (1983) 14 Melbourne University Law Review 53.

Also, there's Sayers v Harlow Urban District Council [1958] 1 WLR 623. Plaintiff stuck in public toilet cubicle. Attempts to climb out. Thinks better of it. Injured trying to get back down. Recovers damages for those injuries, reduced by 25% on account of contributory negligence. The Court of Appeal judges clearly influenced by their view, variously expressed, that the plaintiff acted "quite sensibly", "entirely rationally", "not unreasonably", "carefully and prudently" and that she had not taken "any risk which was in any way disproportionate to the necessities of her situation, or which could have been regarded as unreasonable in the circumstances in which she found herself."

It's a start!

Gary

At 15:40 09/05/06 -0300, Marc Ramsay wrote:

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).

------------------------------------
Professor Gary Davis
Dean, School of Law
Flinders University
GPO Box 2100
Adelaide SA 5001 Australia
Tel: 08 8201 3883 Fax 08 8201 3630 Confidential Fax 08 8201 3671
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