The rule in Wilkinson v Downton may be thought of as imposing liability for the intentional, but indirect, infliction of personal injury. Following the judgments in OPO v Rhodes [2015] UKSC 32, the precise scope of the rule remains unclear, as we will see.
Wilkinson, a pub landlord, had gone to spend a day at the races. Downton, a customer at the pub, decided to play a trick on W’s wife. He told her falsely that W had been seriously injured in an accident on his way home. D’s statement brought about ‘a violent shock to [Mrs W’s] nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity’ (at 58). Following a trial with a jury, Mrs W was awarded, inter alia, £100 in damages for nervous shock.
The case came before Wright J for further consideration. Wright J held that damages for shock to the nervous system could be supported where the defendant has ‘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 . . . there being no justification alleged for the act’ (at 58-59).
In Clerk and Lindsell on Torts, Paula Giliker notes (at 14-14) that the facts of Wilkinson v Downton do not fall within battery or assault as the harm was caused indirectly and there was no application, or threat, of force. Other examples may be given which fall outside the scope of battery and assault, but where it might be reasonable to assume that liability ought to exist. Consider for instance:
It can be argued that in each of these cases, liability would arise in negligence and that, as a result, it is ‘unnecessary to fashion a tort of intention’ (Wainwright v Home Office [2003] UKHL 53 at [40] (Lord Hoffmann)). In Wainwright, Lord Hoffmann saw ‘no leading role in the modern law’ for the rule in Wilkinson v Downton given that liability for psychiatric harm may now lie in negligence (ibid)).
However, it might be thought that the rules on liability should distinguish the case where D intends to cause harm to C from that where the cause of C’s injury is D’s carelessness. In short, the intentional infliction of harm should be treated as a more serious wrong than harm caused unintentionally (but carelessly):
‘. . . negligence and intent are very different fault elements and there are principled reasons for differentiating between the bases (and possible extent) of liability for causing personal injury in either case’ (OPO v Rhodes [2015] UKSC 32 at [63] (Lady Hale and Lord Toulson).
Two ways in which liability under Wilkinson v Downton might differ from liability in negligence are as follows.
First, it is established law that in an action for negligence a claimant cannot recover damages for pure distress, ie distress unaccompanied by physical injury. In the absence of physical injury, the claimant must establish that they have suffered a recognisable psychiatric injury and not ‘mere’ distress. It is possible, although uncertain, that liability under the rule in Wilkinson v Downton might extend to ‘mere’ distress.
Secondly, damages under Wilkinson v Downton would seem to be available even where the type of harm suffered would not have been reasonably foreseeable. With negligence, the kind of loss suffered must have been reasonably foreseeable: The Wagon Mound [1961] AC 388 (PC).
The rule in Wilkinson v Downton has been applied or considered in the following cases.
C lived in a house in London. Another occupant of the house had in her possession various letters purporting to have been written by T. T was anxious to obtain these letters, maintaining that they were forgeries. T engaged the services of D1, a private detective. D1 sent his assistant, D2, to the house to persuade C to get hold of the letters. D2 told C that he was from Scotland Yard and that she was wanted by the authorities for corresponding with a spy: C’s German fiancé, with whom she corresponded, was being held on the Isle of Man as an enemy alien. C suffered severe nervous shock and recovered £250 in damages, the CA holding that the facts fell within the principles set out in Wilkinson v Downton.
C claimed that D had assaulted her, threatened her with violence and repeatedly pestered her with telephone calls to her parents’ house where she lived. A judge granted an injunction restraining D from ‘using violence to, harassing, pestering or communicating with’ C. D appealed on the ground that an injunction could only be granted to protect a legal right of C and the wording of the injunction did not reflect any tort. The CA (Dillon and Rose LJJ, Peter Gibson LJ dissenting) dismissed the appeal and held that the injunction as worded could be supported on both the tort of private nuisance and the principle in Wilkinson v Downton and Janvier v Sweeney. Peter Gibson LJ would have granted an injunction based on Wilkinson v Downton restraining D ‘from doing acts calculated to cause [C] harm’.
C had been subjected to a campaign of harassment at work by some of her fellow employees, including D2. As a result, C suffered a recognised psychiatric illness. The judge held, inter alia, that D2 was not liable under the rule in Wilkinson v Downton and the Court of Appeal dismissed C’s appeal. There was no allegation that D2 had actually intended to cause psychiatric illness and the likelihood of such illness resulting from D2’s behaviour had not been such that an intention to cause the harm could be imputed to D2.
‘The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.’ (Hale LJ at [12]).
The Cs, Mrs W and her son, Alan Wainwright were subjected to unauthorised strip searches before visiting a relative at Armley Prison in Leeds. As a consequence, AW suffered post-traumatic stress disorder. Mrs W suffered distress, but no recognised psychiatric illness. The CA held, inter alia, that the claim under Wilkinson v Downton failed as there had been no finding by the judge that the prison officers had intended to cause harm to the Cs or that they had been reckless as to whether they caused such harm. The HL dismissed Cs’ appeals.
‘Wilkinson v Downton . . . does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established.’ (Lord Hoffmann, with whom Lords Bingham, Hope and Hutton agreed, (at [47]).
Elias J held, inter alia, that D was not liable to C2 under the rule in Wilkinson v Downton. Following Wainwright v Home Office, Elias J said that to succeed under the rule, D must either have intended to cause the harm or been reckless, not caring whether he would cause harm or not. Elias J held that neither condition was satisfied as regards C2.
C brought an action against his former headmaster, D1, for various acts of sexual abuse suffered when C was a pupil at D2’s school. C claimed, inter alia, that D1 made a video recording of C and other boys while they were showering after a PE lesson and that on another occasion, while C had been in the school infirmary, D1 had pulled down C’s trousers and underpants and stared at C’s genitals.
Field J held, inter alia, that:
(i) the videoing incident had caused C to suffer emotional distress but not any recognised psychiatric illness. As such, there was no liability for this incident under the rule in Wilkinson v Downton.
(ii) while D1 had not subjectively intended to cause psychiatric harm to C during the infirmary incident, D1 had been reckless as to whether he caused such harm to C. As the incident had been more than a trivial cause of C’s subsequent psychiatric injury, D1 was liable under the rule in Wilkinson v Downton.
The case concerned a semi-autobiographical book written by D1, a well-known concert pianist. The book described how music helped D1 to cope with the trauma of the sexual abuse he had suffered as a child. C, D1’s 12-year-old son, lived in the US with his mother. D1 and C’s mother had divorced several years earlier. C had various learning and communication difficulties and had been diagnosed with Asperger’s syndrome, attention deficit and hyperactivity disorder, dysgraphia and dyspraxia. C’s mother was concerned about the effect that the contents of the book would have on C and proceedings were brought in C’s name to prevent publication of the book. The application for an injunction was supported by the evidence of a consultant child psychologist who concluded that exposure to the contents of the book ‘would be likely to exert a catastrophic effect on [C’s] self-esteem and to cause him enduring psychological harm’. Applying the rule in Wilkinson v Downton, the Court of Appeal granted an interim injunction restraining publication of passages in the book which contained graphic descriptions of the abuse D1 suffered and the effects of that abuse on him.
The Supreme Court allowed the Ds’ appeal. According to Lady Hale and Lord Toulson, with whom Lord Clarke and Lord Wilson agreed, the Wilkinson v Downton tort required, inter alia, ‘words or conduct directed towards the claimant for which there is no justification or reasonable excuse’. Here, D1 had the right to tell the world about his suffering and struggles, and his right to report the truth was justification in itself. As such, the claim under Wilkinson v Downton had to fail. In addition, the Wilkinson v Downton tort required that D had actually intended to cause C physical harm or severe mental or emotional distress. It was not arguable that D1 had had such an intention.
Lord Neuberger, with whom Lord Wilson also agreed, said that once it was recognised that D1 did not owe C a duty of care in negligence it was apparent that, from a legal perspective, the book’s contents simply had nothing to do with C. It would be an undue restriction on freedom of expression were the court to restrain publication of a book which referred to C only in general and unobjectionable terms and which D1 had neither intended nor expected would harm C. As such, whatever the nature and ingredients of the Wilkinson v Downton tort, it could not possibly apply in the immediate case.
The first reason why Rhodes is important is because it confirms that English tort law continues to recognise that the rule Wilkinson exists as a distinct ground of liability. Second, it’s important because the Supreme Court had quite a lot to say about the requirements for establishing liability under W v D. So far so good. The bad news is that most of what the Supreme Court actually said about Wilkinson and Downton in Rhodes is obiter. And that means that the actual scope of the rule is currently very uncertain. So what do we take from Rhodes?
It may be helpful to look briefly at each of the three elements, which according to Lady Hale and Lord Toulson in Rhodes, make up the tort.
Lady Hale and Lord Toulson said that the claimant must prove ‘words or conduct directed towards the claimant for which there is no justification or reasonable excuse.’ ([2015] UKSC 32 at [74]).
By contrast, Lord Neuberger conceives of a tort of much narrower scope, referring to it as ‘the tort of making distressing statements’ ([2015] UKSC 32 at [103]). He said that he ‘would be reluctant to decide definitively that liability for distressing actions and distressing words should be subject to the same rules, at this stage at any rate’ ([2015] UKSC 32 at [103]). He continued:
‘There is of course a substantial overlap between words and actions: after all, words can threaten or promise actions, and freedom of expression can in some respects extend to actions as well as words. And, in the light of what I say below, it might be the case that the tort of making distressing statements is to be limited to statements which are the verbal equivalent of physical assaults. However, there are relevant differences between words and actions.’
On the facts of the case, Lady Hale and Lord Toulson said that while the book was directed to the claimant, it was also directed to the world at large and this was relevant as far as justification was concerned.
Lord Neuberger said that ‘it will be a very rare case where a statement which is not untrue could give rise to a claim, save, perhaps where the statement was a threat or (possibly) an insult’ ([2015] UKSC 32 at [107]). He added:
‘Because of the importance of freedom of expression and of the law not impeding ordinary discourse, there must be a second and demanding requirement which has to be satisfied before liability can attach to an untruth, an insult or a threat which was intended to, and did, cause distress, but would not otherwise be civilly actionable. Lady Hale and Lord Toulson have suggested a test of “justification or reasonable excuse” . . . and I have used the adjective “gratuitous” . . . Neither description is ideal as it can be said to be question-begging (virtually every threat, untruth or insult can be said to be unjustified, inexcusable and gratuitous), and it involves a subjective assessment. There may be something to be said for the adjectives “outrageous”, “flagrant” or “extreme”, which seem to have been applied by the US and Canadian courts . . .’ ([2015] UKSC 32 at [110]).
Nevertheless, Lord Neuberger also said (at [96]) that he did ‘not consider that it would make any difference if the experiences which the defendant describes could be shown to have been invented, or if the book had been written as a novel by someone who had not been sexually abused.’
Lady Hale and Lord Toulson held obiter that D must be shown to have had an actual intention to cause at least severe mental or emotional distress. While the necessary intention might be imputed to the defendant, they made clear that such an imputation was one of fact, not law.
Lord Neuberger agreed: ‘recklessness is not enough’ ([2015] UKSC 32 at [113]). He thought that an intention to cause distress must be the primary, but not the sole, purpose of the D. ‘The degree of distress which is actually intended must be significant, and not trivial, and it can amount to feelings such as despair, misery, terror, fear or even serious worry’ ([2015] UKSC 32 at [114]).
On this basis, the intention element under Wilkinson v Downton is stronger than that applied in the trespass to the person torts.
Two points are worth emphasizing. The first is that a requirement of actual intention represents a departure from the current law: according to the Court of Appeal’s decision in Wong v Parkside Health NHS Trust objective recklessness is sufficient.
Second, while the requirement of actual intention represents a narrowing of the tort, this must be set off by Lady Hale’s and Lord Toulson’s acceptance that intention as to severe distress is sufficient: the claimant need not show that the defendant intended to cause a recognized psychiatric illness.
Lady Hale and Lord Toulson thought that liability should only arise where the claimant suffers physical harm or recognised psychiatric illness, including psychiatric illness which is the product of severe emotional distress (see [2015] UKSC 32 at [73]).
Lord Neuberger, on the other hand, thought that:
‘there is plainly a powerful case for saying that . . . it should be enough for the claimant to establish that he suffered significant distress as a result of the defendant’s statement. It is not entirely easy to see why, if an intention to cause the claimant significant distress is an ingredient of the tort and is enough to establish the tort in principle, the claimant should have to establish that he suffered something more serious than significant distress before he can recover any compensation.’ ([2015] UKSC 32 at [119]).
If, in the future, the courts adopt Lord Neuberger’s approach, that would open up a very important difference between liability under the Wilkinson rule and liability in negligence. For there is no liability in negligence for pure distress, ie distress not amounting to a recognised psychiatric injury and which does not accompany physical injury.
Returning to the actual decision in Rhodes. The Supreme Court allowed D1’s appeal because D1 had the right to tell the world about his suffering and struggles, and his right to report the truth was justification in itself. And further, it could not be argued that D1 had actually intended to cause C physical harm or severe mental or emotional distress. Stepping back from the actual decision, the significance of Rhodes is that it confirms the existence of the rule in Wilkinson v Downton. However, it leaves significant uncertainty as to its precise scope. We are dependent upon future cases to resolve that uncertainty.
C was a pupil at a school operated by D for those with special educational needs. C had been groomed and sexually abused by a teacher, W. D was held vicariously liable for the serious psychiatric harm which C suffered as a result of W’s actions. Sir Robert Nelson held that the claim for intentionally inflicted harm had been made out. ‘[W] acted unjustifiably towards the Claimant by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts’. As for the mental element, ‘[i]t was obvious that the illicit relationship would in the end cause nothing but harm to the vulnerable Claimant some 39 years younger than her groomer and those consequences must have been entirely clear and obvious to [W]’ (at [89]).
Sir Robert Nelson declined to make an award of aggravated damages on the ground that the damages of £35,000 for pain, suffering and loss of amenity were sufficient. D was held vicariously liable in damages totalling £51,370.
C and D were in a romantic relationship and C had moved into D’s home. Without her knowledge, D secretly filmed C while she was naked in the bathroom and the bedroom. D then posted screenshots to a pornographic website and included a photo of C’s face from her Facebook page. As a result of D’s actions, C suffered chronic post traumatic stress disorder with an enduring personality change. C brought a claim for misuse of private information and intentional infliction of injury.
Thornton J (Mrs) awarded C general damages for pain, suffering and loss of amenity of £60,000 and special damages of some £37,000, including the cost of psychiatric treatment and the cost of hotel accommodation incurred while C found somewhere else to live.
C, aged 13, was a pupil at D’s school. T, aged 18, was given a week’s work experience at the school. C and T began communicating on Facebook a month after the placement. T subsequently committed various sexual assaults against C, later pleading guilty to various related criminal charges.
C brought a claim against D on the basis that it was vicariously liable for the torts of assault and battery and for the intentional infliction of harm. The judge found that while the torts were made out, no element of them had been committed during the placement. The judge held that D was not vicariously liable for the torts as there was no relationship akin to employment and no close connection between the torts and the acts which T was asked to do.
The Court of Appeal held that the necessary conduct and mental elements of the intentional infliction of harm tort were made out during the placement. Further, the Court of Appeal held that there had been a relationship between D and T akin to employment. However, dismissing the appeal, the Court of Appeal held that the judge had been right that the close connection test was not met.
C was awarded damages for psychiatric injuries resulting from D’s conduct of counselling sessions. Ritchie J held that D had breached the duty of care he owed C when he asked C to undress in one of the sessions and when he asked her to masturbate in front of him. Ritchie J dismissed C’s claim for the tort of intentional harm by words. While D’s words were deliberate and D should have foreseen that they would probably cause C personal injury, C had not shown that D had had the necessary intention. While D was reckless as to the consequences of his actions that was not enough to establish liability. It followed that C’s claim for aggravated damages was also rejected.
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