Facts of the Case
The defendant, Mr Downton, as a practical joke, told the claimant, Mrs Wilkinson, that her husband had been seriously injured in an accident, having broken both of his legs. This statement was entirely false. Upon hearing this news, Mrs Wilkinson suffered a violent nervous shock which led to physical symptoms, including vomiting and a long-term illness. She brought an action for damages. The defendant argued that he had not intended to cause her harm and that the damage was too remote.
Issues
The issue in question was whether compensation could be made for a person’s illness and suffering following the false representation made by the defendant, D. The court had to determine if a cause of action existed where the harm was caused by words and there was no physical impact on the claimant, and whether the resulting harm was a foreseeable consequence of the defendant's act.
Decision/Outcome
D had wilfully made a false representation to W intending to cause some physical harm to W, by infringing her right to personal safety, with no justification for doing so. Although D did not intend the harm which was caused, this ‘wilful injuria’ is malicious in law. The injury caused to W was not too remote and could have been foreseen, and therefore taken to have been intended, by D. As Wright J., stated at paragraph 59:
> The defendant has, as I have said, wilfully done an act calculated to cause physical harm to the plaintiff — that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.
The court held that the defendant's action was "calculated" to produce the effect it did. "Calculated" in this context did not mean that the defendant had schemed to cause that specific harm, but rather that the harm was a likely consequence of his actions. Therefore, an intention to produce that harm could be imputed to the defendant. The claimant was awarded £100 in damages for her illness and suffering.
Commentary
The decision in Wilkinson v Downton is significant because it established a new cause of action, now known as the tort in Wilkinson v Downton. This tort was created to fill a gap in the law, providing a remedy for the intentional infliction of indirect harm where the traditional torts of trespass to the person (assault and battery) would not apply. Assault requires the claimant to apprehend immediate unlawful force, and battery requires the application of direct force, neither of which were present on the facts of this case. Furthermore, the law of negligence regarding psychiatric harm was undeveloped at the time.
The tort established by Wright J required three elements: a wilful act by the defendant, that is "calculated to cause physical harm," and which has in fact caused such harm. For over a century, the scope and requirements of this tort remained somewhat ambiguous. A key uncertainty was the meaning of the "intention" required by the defendant.
The position was reviewed by the House of Lords in Wainwright v Home Office [2004], where it was held that the tort did not cover mere distress or anxiety and that a recognised psychiatric injury was required for the consequence element. Lord Hoffmann expressed doubts about whether the tort should even continue to exist, given the development of the law of negligence (Mullender, 2005).
However, the Supreme Court in O (A Child) v Rhodes [2015] definitively affirmed the tort's existence and clarified its elements for the modern law. Lady Hale and Lord Toulson restated the test as comprising three parts:
- A Conduct Element: Words or conduct directed towards the claimant for which there is no justification or reasonable excuse.
- A Mental Element: An intention to cause severe mental or emotional distress. The court in Rhodes moved away from Wright J's concept of imputed intention, stating that recklessness is not sufficient. There must be an actual intention to cause severe distress.
- A Consequence Element: The claimant must have suffered a recognised physical injury or psychiatric illness.
The decision in Wilkinson was therefore a landmark ruling which created a necessary, if narrow, tort to protect individuals from intentionally inflicted psychiatric harm. While its original formulation has been refined, its core principle endures, as confirmed by the Supreme Court in Rhodes, ensuring it remains a small but important part of modern tort law.
References
- Mullender, R. (2005) ‘Theorizing the Tort of Harassment’, The Modern Law Review, 68(5), pp. 838-854.
- O (A Child) v Rhodes [2015] UKSC 32.
- Wainwright v Home Office [2003] UKHL 53.
- Wilkinson v Downton [1897] 2 QB 57.
