Revisiting the Tort in Wilkinson v Downton

Introduction

By Yaiman Bande

The law of tort is a branch of private law which is concerned with the rights and duties of individuals towards each other. Unlike the law of contract, tort law does not need a pre-arranged agreement to determine the rights and duties of parties. The courts may enforce such rights without a formal or informal agreement between the parties. Examples of such torts include, but is not limited to, trespass to the person and the tort of negligence. The tort in Wilkinson v Downton[1] is striking amongst other torts because it appears to have qualities of both trespass to the person and negligence. The applicability of this peculiar tort has caused as much diverse judicial opinion as it has caused debate among legal scholars. It is imperative to explore why.

Trespass to the person and Negligence

In law, it is well-known that in order to attach liability to a particular person, it is not enough to say that their actions were faulty, but rather they must also be under the influence of a particular frame of mind. Trespass to the person is a tort that requires direct interference with a person’s body or liberty. Ideally, it involves three torts: false imprisonment, assault and battery. The state of mind of the accused may be that of direct intent or negligence. However, since the tort of negligence governs negligent acts, the tort now only involves those actions that establish a direct intent.[2]

To make this point more clear, the case of Letang v Cooper[3] is particularly instructive. In that case, the claimant was run over by the defendant’s car while she was sunbathing. She brought the action three years after this incident. She couldn’t bring an action in negligence because she was time-barred from doing so by the Limitation Act. However, she could bring an action under trespass to the person because the limitation of bringing an action under statute was six years after the occurrence of the event. Nevertheless, the courts dismissed her claim and held that her action could only be brought under the tort of negligence. The reason was that unintentional acts fell in the purview of the tort of negligence. While acts done intentionally, fell under trespass to the person.?

The tort in Wilkinson v Downton

Now, it is necessary to consider the tort as established in Wilkinson v Downton. In that case, the claimant, whose husband had gone to the races for the day, was told by the defendant as a way of a practical joke that her husband was in an accident and had consequently broken his legs. In response to this devastating news, she became ill from nervous shock. On the strength of the reasoning behind the Letang case discussed earlier, she couldn’t sue under the tort of negligence because the act of the defendant was clearly intentional. In delivering judgment, Wright J held that the defendant was liable and in doing so, created a new tort. He said, “The defendant has, as I assume for the moment, 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... 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.”

Elements of the Tort

Taking a closer look, there are three elements that have to be considered in the tort of Wilkinson v Downton: (i.) a wilful act (ii.) physical harm must be caused and, (iii.) the act must be calculated to cause physical harm. [4] These components have also been summarized under case law as a mental element, conduct element and a consequent element.[5]

A wilful act

By wilful act, it appears from the holding in Wilkinson that this is contemplated to mean an act that is premeditated, deliberate and planned. It, therefore, by implication excludes any acts that are done by accident i.e. unintentional acts (these, as discussed earlier would fall under the tort of negligence). Furthermore, from the authority of case law, it is clear that this element can either be satisfied by the presence of actual intention or recklessness. An example where actual intention was present is the case of Janvier v Sweeney[6]. In that case, the defendant misrepresented to the claimant that he was part of the Scotland Yard. This was done to terrify her with the intent of making her hand over some letters that belonged to her employers. She suffered psychological harm due to this and successfully claimed under Wilkinson. By contrast, the case of Wilkinson did not suggest any actual intention to cause harm on the claimant. But it seems that the court imputed such intention on the ground that it was reckless for the defendant to have joked in such a manner and hence, he was liable.

Physical harm must be caused

In tort, trespass to the person is considered to be actionable per se .i.e. not requiring proof of damage. However, it could be deduced from the judgments of the courts that the tort in Wilkinson requires proof of damage. In the case of Janvier, psychiatric injuries sufficed as proof of damage. With regard to what exactly would amount to damage or harm, in order for this element to suffice, Lady Hale in Wong v Parkside Health NHS Trust[7] opined that it cannot be merely a claim for ‘distress, inconvenience or discomfort’ but it has to be ‘physical harm or a recognized psychiatric illness.’

The act must be calculated to cause physical harm

This element is perhaps where most of the debate in relation to this tort stems from. In the case of Wilkinson, Wright J said that the act in question must be calculated to cause physical harm. At first glance, it appears as if the words ‘calculated to cause physical harm’ applies only in scenarios where the defendant factually intends that his actions will bring actual physical harm on the claimant. However, the facts of Wilkinson seem to indicate otherwise. Indeed, as earlier mentioned, the tort includes not only instances where the defendant actually intends to cause physical harm but also instances where he is indifferent (or reckless) to the fact that his actions may cause a psychiatric illness to the claimant and intention is often times imputed by the courts.

Wilkinson v Downton in light of Trespass to the person and Negligence

In the Wilkinson case, it is no defence for the defendant to say that ‘more harm was done than he had foreseen.’ Neither will it be a defence for him to argue that he did not intend the act to bring out the results that it did. In the Wong case, Lady Hale held that, ‘the conduct complained of has to be such that physical or psychiatric injury 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 a result of his behaviour and is deliberately engaging in that behaviour.’ This likelihood of injury has to be foreseen by the reasonable man.[8]

It is this imputation of the intention on a defendant in a given particular set of facts that brings about debate because it is equivocal. The imputation of intention to cause harm arises from the notion that the defendant had reasonably foreseen he would cause harm and hence the imputation is justified. There is hardly any dispute about the test that likelihood of injury has to be foreseen using the reasonable man test. It is the holding that intention on the part of the defendant is imputed that brings about debate.

The problem of imputing intention may arise in two ways. Firstly, it gives rise to the danger that a judge may use it to support any finding of the defendant’s state of mind. In the Wong case, the court was tasked to enquire into whether the likelihood of injury ?could have been foreseen from the reasonable man’s point of view in order to impute intention. By contrast, in the judgment in C v D[9], the judge imputed intention on the claimant using the yardstick that the defendant was reckless as to whether he had caused psychiatric injury. It appears that the court in the C v D case was wrong in principle in imputing that intention which was clearly a different approach taken in light of Lady Hale’s holding in the Wong case.[10]

Secondly, commentators have argued ?by questioning the legal basis on which intention should be imputed. The answer to this as established by the Court of Appeal in the recent case of OPO v MLA[11]is that there ?should not be any justifiable reason ?for the defendant ?in inflicting physical harm on the claimant. This seems to be different from Lady Hale’s position in Wong where the likelihood of harm test was adopted. Furthermore, ?it appears from the plethora of authorities that the imputation itself has been taken as another ground in which to impute the intention which is particularly different from actual intention and recklessness, which are the only established states of mind present in the tort of Wilkinson v Downton.

In OPO v MLA, Arden LJ rejected counsel’s submission that the tort in Wilkinson could only apply in instances of subjective recklessness i.e. recklessness whereby the defendant knows intentionally that his actions would probably cause harm. His lordship held that ‘even if MLA does not intend to cause harm and is not reckless, the necessary intent can be imputed to him.’ This caused a significant amount of debate among legal scholars because it separates ‘imputation’ from ‘recklessness’, that is, subjective recklessness ?and neglects the essential fact that ‘recklessness’ has always been concerned with an assessment of likelihood of the defendant’s act causing the claimant’s harm. In other words, it suggests that the likelihood of injury test is only applicable to cases where subjective recklessness is present and it is open to the court to impute intention on the basis of other factors.[12] One of the characteristics of a good law is that it has to be certain and predictable. Based on these diverse judicial opinions, it appears that this tort is devoid of both.

Indeed, the crux of the debate arises from the relationship this tort shares with the tort of negligence. Lord Hoffman in the case of Wainwright v Home office[13] put it succinctly as follows: “Commentators and counsel have nevertheless been unwilling to allow Wilkinson v. Downton to disappear beneath the surface of the law of negligence. Although in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause?it. This submission was squarely put to the Court of Appeal in Wong v. Parkside Health NHS Trust and rejected. Hale LJ said that before the passing of the Protection from Harassment Act 1997 there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v. Downton with no leading role in the modern law.” ?Indeed, Lord Hoffman’s words sum up the position of this treatise and it is argued as a matter of policy that the tort in Wilkinson v Downton should be removed.

[1] [1897] 2 QB 57

[2] E A Martin, Oxford Dictionary of Law (5thedn, Oxford University Press 2003)507

[3] (1965) 1 QB 232

[4] F Quinn, Living Law: Tort Law(Pearson Education Limited 2012)325

[5] C D L Hunt, Wilkinson v Downton Revisited(2015)74 Cambridge Law Journal 393

[6] [1919] 2 KB 316

[7][2001] EWCA Civ 1721?

[8] n(6) 326

[9] [2006] EWHC 166

[10] Y K Liew, The Rule in Wilkinson v Downton: Conduct, Intention and Justifiability(2015)78(2) Modern Law Review 4

[11] [2014]EWCA Civ 1277

[12] n(12)

[13] [2004]2 AC 406