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Wilkinson v Downton [1897] QB 57 

Wilkinson v Downton [1897] QB 57
Chapter:
Wilkinson v Downton [1897] QB 57
Author(s):

Craig Purshouse

DOI:
10.1093/he/9780191897641.003.0040
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date: 11 April 2021

Full case judgment: The reported judgment, cited as [1897] QB 57, is available from the ICLR. Alternatively, you can view the full judgment for this case on the open-access BAILII website, http://www.bailii.org/ew/cases/EWHC/QB/1897/1.html

Other perspectives: Use the Law Trove search tools to read other authors’ accounts and commentaries on this case.

Facts

The defendant falsely told the claimant that her husband had broken both of his legs in an accident. He informed her that she should go in a cab with pillows to fetch him. The effect of the defendant’s practical joke was so severe that she suffered a nervous shock and became seriously ill. In addition to the claim for the expense of sending someone to collect her husband, she sought compensation for her illness and suffering.

Decision

The claimant succeeded in the Queen’s Bench Division. Wright J said that where a defendant had ‘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’ then the claimant would have ‘a good cause of action’ if there is no justification alleged for the act’ (at 59).

On the facts, Wright J maintained that the defendant’s statement could ‘produce grave effects under the circumstances upon any but an exceptionally indifferent person’ (at 59). As such, an intention to produce such an effect must be imputed. It was ‘no answer’ to say that more harm was done than was anticipated (at 59).

Furthermore, the fact that the claimant’s illness was caused by shock did not mean that it was too remote to found a claim. Although, at the time, there were authorities that indicated negligently caused psychiatric injury would be too remote, they did not apply, as here, where the wrong was inflicted wilfully.

Comment

Wilkinson v Downton is a significant case as it involved the creation of a new tort: that of wilful infringement of another’s right to personal safety. It is an intentional tort but, unlike trespass to the person, it is derived from the action on the case so is not actionable per se: it requires the claimant to have suffered some actionable damage. Further distinguishing the rule from trespass is the fact that the harm can be inflicted indirectly.

It therefore filled a gap in the law. The editors of Clerk and Lindsell on Tort, 22nd Edn at [15-14] state: ‘The man who poisons someone’s drink, who deliberately infects someone with a contagious disease, who startles someone descending a flight of stairs causing a fall, who prevents a doctor from treating a sick patient—in each case he ought to be liable even though the specific requirements of assault or battery are not satisfied.’

The rule has been successfully relied upon in subsequent cases such as Janvier v Sweeney [1919] 2 KB 316 (the defendant pretended to be a police officer and told the claimant that she was suspected of corresponding with a German spy in order to read letters belonging to her companion. The claimant suffered nervous shock as a result) and Khorasandjian v Bush [1993] QB 727 (the claimant was able to rely on the rule in order to obtain an injunction preventing a former partner from making threatening phone calls). However, a claimant who suffered post-traumatic stress disorder after harassment at work was unable to rely on the rule in Wong v Parkside Health NHS Trust [2003] 3 All ER 932. The defendant being rude and unfriendly was not enough to impute intention. Similarly, a wrongful and humiliating strip search by prison officers that resulted in the claimant suffering a psychiatric injury was not enough to found a claim. The prison officers had not intended to cause distress (Wainwright v Home Office [2004] 2 AC 406).

More recently, the elements of the tort have been clarified by the Supreme Court in O v Rhodes [2016] AC 219 (discussed elsewhere). However, it is hard to disagree with Lord Hoffmann’s assessment in Wainwright at 424, when he stated that the rule is ‘far more often discussed than applied.’

Wider questions

Why has the case been rarely applied? According to Lord Hoffmann, developments in the law of negligence permitting claims for psychiatric injury, together with the introduction of the Protection for Harassment Act 1997, have left the rule with ‘no leading role in the modern law’ (Wainwright, 425). However, is debatable that these causes of actions can entirely subsume the tort. Horsey and Rackley suggest that the rule could provide a civil remedy for those who are victims of ‘revenge porn’ whereby private sexual images of an individual are shared without their consent (Tort Law, 5th Edn, p 427) and Witting has suggested that it could provide a remedy for victims of bullying (https://blog.oup.com/2015/12/intentional-harm-tort-law/).