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WILKINSON V DOWNTON REVISITED

Published online by Cambridge University Press:  30 October 2015

Chris D.L. Hunt

Extract

IN OPO v Rhodes [2015] UKSC 32, the Supreme Court clarified the elements of the tort of intentional infliction of harm. Created in Wilkinson v Downton [1897] 2 Q.B. 57, the tort has long attracted the attention of academic commentators, but has rarely been argued successfully in English courts. In Wilkinson, the jury awarded the plaintiff damages for the physical suffering she endured as a result of severe shock that was caused when the defendant, playing a practical joke, falsely informed her that her husband had been injured in an accident. Wright J. held that the tort required an act be done “wilfully”, that is “calculated to cause physical harm”, and which does in fact cause “physical harm” (at 58–59). The Wilkinson formulation was subsequently endorsed by the Court of Appeal in Javier v Sweeney [1919] 2 K.B. 316 and again, 70 years later, in Khorasandjian v Bush [1993] Q.B. 727. In the latter case, the Court of Appeal emphasised that the wrongful conduct must cause “physical injury” – as distinct from “mere emotional distress” – and it must also be “calculated to cause” the same (at 735–36). Later, in Wong v Parkside Health NHS Trust [2001] EWCA Civ 172; [2003] 3 All E.R. 932, Hale L.J. appeared to qualify the mental element of the tort, observing that Wilkinson does not require actual subjective intent to cause physical harm; rather, according to her Ladyship, “calculated” means deliberately doing an act that is “likely”, all things considered, to result in the degree of physical harm that was in fact suffered (at [10]–[11]). Subsequently, Lord Hoffmann, writing the principal judgment for the House of Lords in Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, revisited both elements of the tort. He affirmed that, traditionally, it requires proof of actual harm, such as psychiatric illness, as distinct from mere distress (at [45]); and, consistently with Lady Hale's judgment in Wong, he interpreted Wilkinson as providing that the intent to cause such harm can be “imputed” to the defendant if it is an obvious consequence of a deliberate act, even though such harm may not have been subjectively appreciated or intended (at [37], [40]). Additionally, His Lordship contemplated expanding the tort to capture mere distress short of physical harm, but cautioned that, if the law was to expand to such cases (which he left to future courts to decide), “imputed intention will not do” (at [45]). Rather, mere distress should in His Lordship's view only be recoverable (if at all) where the defendant had a “genuine intention to cause distress” (at [46]).

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Type
Case and Comment
Information
The Cambridge Law Journal , Volume 74 , Issue 3 , November 2015 , pp. 392 - 395
Copyright
Copyright © Cambridge Law Journal and Contributors 2015 

IN OPO v Rhodes [2015] UKSC 32, the Supreme Court clarified the elements of the tort of intentional infliction of harm. Created in Wilkinson v Downton [1897] 2 Q.B. 57, the tort has long attracted the attention of academic commentators, but has rarely been argued successfully in English courts. In Wilkinson, the jury awarded the plaintiff damages for the physical suffering she endured as a result of severe shock that was caused when the defendant, playing a practical joke, falsely informed her that her husband had been injured in an accident. Wright J. held that the tort required an act be done “wilfully”, that is “calculated to cause physical harm”, and which does in fact cause “physical harm” (at 58–59). The Wilkinson formulation was subsequently endorsed by the Court of Appeal in Javier v Sweeney [1919] 2 K.B. 316 and again, 70 years later, in Khorasandjian v Bush [1993] Q.B. 727. In the latter case, the Court of Appeal emphasised that the wrongful conduct must cause “physical injury” – as distinct from “mere emotional distress” – and it must also be “calculated to cause” the same (at 735–36). Later, in Wong v Parkside Health NHS Trust [2001] EWCA Civ 172; [2003] 3 All E.R. 932, Hale L.J. appeared to qualify the mental element of the tort, observing that Wilkinson does not require actual subjective intent to cause physical harm; rather, according to her Ladyship, “calculated” means deliberately doing an act that is “likely”, all things considered, to result in the degree of physical harm that was in fact suffered (at [10]–[11]). Subsequently, Lord Hoffmann, writing the principal judgment for the House of Lords in Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, revisited both elements of the tort. He affirmed that, traditionally, it requires proof of actual harm, such as psychiatric illness, as distinct from mere distress (at [45]); and, consistently with Lady Hale's judgment in Wong, he interpreted Wilkinson as providing that the intent to cause such harm can be “imputed” to the defendant if it is an obvious consequence of a deliberate act, even though such harm may not have been subjectively appreciated or intended (at [37], [40]). Additionally, His Lordship contemplated expanding the tort to capture mere distress short of physical harm, but cautioned that, if the law was to expand to such cases (which he left to future courts to decide), “imputed intention will not do” (at [45]). Rather, mere distress should in His Lordship's view only be recoverable (if at all) where the defendant had a “genuine intention to cause distress” (at [46]).

OPO was decided against the above jurisprudential backdrop. The case involved the defendant's planned publication of an autobiographical book, which recounted in detail the various sexual abuses and consequent depression, addiction, and self-harm he suffered as a child and young adult. The claimant, his ex-wife, acting on behalf of their 12-year-old son, sought to prevent publication, invoking the Wilkinson tort on the basis that their son was likely to suffer extreme emotional distress if exposed to the book's contents. Controversially, the Court of Appeal ([2014] EWCA Civ 1277) had issued an injunction, preventing publication of “graphic” passages of the book (see [2015] UKSC 32, at [27]) on the basis that the ingredients of Wilkinson would likely be established at trial. Arden L.J., writing the principal judgment, determined that, if the book was published, the son would likely be exposed to its contents, and this would likely cause him psychiatric harm (at [87], [115]). Her Ladyship further held that an intention to cause such harm could be imputed to father, on the basis that it was an obvious consequence of publishing the work, in light of the son's psychiatric vulnerability (at [78], [87]). Finally, her Ladyship held that the publication was unjustified, despite it being true, autobiographical material, because the father knew of the son's mental vulnerability, and had accepted responsibility to use his best efforts to prevent the son from reading the book (at [68], [69]).

The Supreme Court rejected the Court of Appeal's analysis and set aside the injunction. In the course of doing so, it also elucidated the elements of the Wilkinson tort. Lady Hale and Lord Toulson, writing the principal opinion, said the case raised two issues: What is the proper scope of Wilkinson in “modern law”, and can it “ever be used to prevent a person from publishing true information about himself”? (at [1]). As to the former question, the court held that the Wilkinson tort properly consists of three components: a conduct element, a mental element, and a consequence element (at [72]). The Court addressed the third of these first, affirming that Wilkinson requires “physical harm or recognized psychiatric illness”. Lord Hoffmann's suggestion in Wainwright that mere distress could be compensable was not endorsed (at [73]). Regarding the conduct element, the Court said it “requires words or conduct directed towards the claimant for which there is no reasonable excuse” (at [74]). Where the impugned conduct involves a communicative act, courts must consider the importance of free expression when determining whether there was a reasonable excuse for the speech. In this respect, the Court emphasised the “very high protection” the law gives to the freedom to “report the truth”, and said that it is “difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability” under Wilkinson (at [77]). Finally, the Court turned to elucidate the mental element of the tort. It observed there is a critical difference between imputing intention “as a matter of law” and “inferring the existence of an intention as a matter of fact” (at [81]). The former doctrine, applicable historically to both criminal law and tort law, provided that a person is deemed to intend the natural and probable consequences of his or her acts (at [45]). Lady Hale and Lord Toulson noted that this doctrine was extinguished in the criminal context by section 8 of the Criminal Justice Act 1967 (at [45]), yet it continued to linger sometimes in the law of tort. In the Court's view, this doctrine is “unsound in principle” and “has no proper role in the modern law of tort” (at [81]). Henceforth, subjective intent may be imputed as a matter of fact by examining the defendant's conduct in the totality of circumstances, but it is wrong to deem as a matter of law that he or she always intends the natural consequences of his or her acts. The Court next turned to examine more precisely what level of subjective intention is required to ground liability under Wilkinson. It rejected as too narrow both a recklessness standard – one that would require the defendant to foresee subjectively a risk that the claimant would suffer some physical harm such as a psychiatric illness as a result of his or her act, yet proceed to act nonetheless – and also the suggestion that the defendant must actually intend to cause some physical or psychiatric illness (at [83], [87]). The court instead articulated a slightly broader standard: the defendant must at a minimum intend to cause “severe distress which in fact results in recognisable illness” (at [83], [87]).

Having clarified the elements of Wilkinson, the Court turned to apply them to the facts before it. It held there was “every justification for the publication”, given the important free speech interest the defendant had in telling his story of childhood abuse along with the subsequent trauma he endured, and the corresponding interest of the public in hearing it (at [76]). The Court emphasised that the “brutal language” and “dark descriptions” throughout the book were essential to the defendant's narrative and also assisted the reader in gaining “insight into his pain” (at [78]). “To lighten the darkness,” the Court said, “would lessen its effect.” Moreover, as a matter of principle, “the right to convey information to the public carries with it a right to choose the language in which it is expressed” (at [78]). In light of these points, the Court determined that the publication was justified and hence the requisite conduct element was not established. In so holding, the Court also answered implicitly the second main issued raised in this case: going forward, it appears that Wilkinson may not be used to restrain a person from publishing true information about himself, unless, perhaps, in extreme cases where the words are also threatening or abusive.

OPO is a welcome decision. In practical terms, jurists now have reasonably clear guidelines concerning the operation of Wilkinson in future cases. As a matter of principle, the Court should be commended for shrinking the ambit of this tort by requiring a subjective intent to cause severe distress. Without such a limitation, the tort threatens to capture a vast swath of human interaction and interfere unduly with freedom of expression. That said, it may be that the Court went too far in narrowing the tort's scope, by not considering more fully Lord Hoffmann's suggestion in Wainwright that severe distress short of harm be actionable. Lord Neuberger (with whom Lord Wilson agreed) indicated this may be the case in his short concurring judgment. According to His Lordship: “It is not entirely easy to see why, if an intention to cause the claimant significant distress is an ingredient of the tort and 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” (at [119]).