WILKINSON V DOWNTON REVISITED

Abstract

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]).