EXPLAIN WHETHER OR NOT THE PRINCIPLE OF WILKINSON V DOWTON’ TILL HAS A ROLE IN PROTECTING AN INDIVIDUAL FROM HARM
According to the Human Rights Act, Article 8:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Defendant, D, is liable in an action on the case for damages for intentional acts which are meant to cause damage to Plaintiff, P, and which in fact cause damage to Plaintiff.
NERVOUS SHOCK (Indirect & Unintentional but Intention may be imputed)
Nervous shock is a term used in English law to denote psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. It is most often applied to psychiatric disorders triggered by witnessing an accident, for example an injury caused to one’s parents or spouse. Although the term “nervous shock” has been described as “inaccurate” and “misleading”, it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law. Traditionally, the courts have been reluctant to grant damages for nervous shock in negligence cases as it could “lead to a proliferation of claims, and possibly fraudulent claims”.
This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not by an impact, e.g., by bullet, stick, sword but merely by a nervous shock through what he has seen or heard. As far as 1888, the Judicial Committee of Privy Council in Victorian Railway Commissioner v. Coultas, did not recognize injury caused by a shock sustained through the medium of eye or ear, without contact. They thought that an action cannot be sustained unless there was a physical contact or something akin to do with it.
In Dixon v Nova Scot ia,4 Justice Chipman of the Nova Scotia Court of Appeal remarked:
“Nervous shock is not so much a medical diagnosis, but rather a diagnosis at law or a legal label that has been hung on types of mental injury which courts have been prepared to recognize as worthy of recovery of damages. While the limits of liability have, from time to time varied, mere grief and sorrow have been universally excluded.”
Wilkinson v Downton — Case Story:
As a practical joke, Downton (D) told Wilkinson (P) that her husband had been seriously injured in an accident and was lying in a ditch with broken bones. Downton told Wilkinson that she was to bring two pillows to help carry him home. The Plaintiff suffered ‘vomiting and other more serious physical consequences, at one time threatening her reason and entailing weeks of suffering and incapacity ‘ as a result (i.e. a form of psychiatric injury) and sought damages for (amongst other things) mental anguish and her consequent illness.
The court found that the defendant meant the words to be acted upon, that they were acted upon and that he knew the words to be false. A sum of £l00 was awarded to compensate the Plaintiff for her loss and damage. Mr. Justice Wright held:
‘The defendant has willfully 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. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This willful injury is in law malicious, although neither malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.’
Wilkinson brought suit for damages resulting from her injuries and the jury returned a verdict in her favor. The defendant appealed on the grounds that the damage caused was merely nervous shock and therefore Wilkinson had no cause of action.
This establishes that doing an act calculated (in the legal sense of the word) to cause physical harm is actionable if physical damage results. It seems then that the claimant must show that the defendant’s act would cause harm to a person of ordinary firmness, and that the act caused the harm (and that it is not too remote). According to the ordinary principles of law, accountability will attach even if the act would not affect a person of ordinary sensibilities.
There appears to be some doubt as to the degree and nature of intention required for this tort. The word used in the original Wright J. Judgment is ‘calculated’. The term cannot be restricted to the normal meaning of the word ‘intention’ because in Wilkinson v Downton the defendant’s intention was not to inflict physical harm/psychiatric damage. Academic opinion and the case law suggest that the term means something between ‘intended’ and ‘foreseeable likely’.
* Practical joke -> cause mental harm -can bring on action: Wilkinson v Downton
FACT: Y can bring an action on the case against X for causing Y’s mental harm following the principles of Wilkinson v Downton. This action requires proof of intent and proof of damage, that is, proof that the D subjectively intended to shock the P and that the damage was objectively likely to result. Statements made to the P that are intended to cause harm are actionable if they cause mental harm.
Wilkinson v Downton reference in other cases:
A tort which is difficult to classify is to be found in the case of Wilkinson v Downton (1897) 2 QB 57, which was decided before liability in negligence for nervous shock was established. There was an intention to commit an act which did not fit well with the other person. The damage in this case was indirect and there was no application of physical force.
The legal basis for this proposition is not clear but the case has been followed to pass a judgment on other cases: Janvier v Sweeney (1919) 2 KB 316 and many other cases around the world.
Both Wilkinson v Downton and Janvier v Sweeney were the basis of reasoning in the Court of Appeal in Khorasandijian v Bush (1993)3 WLR 476, to stop the defendant harassing the plaintiff by making persistent telephone calls. That case may be regarged as an extension to the earlier law and came close to recognizing a common law right of privacy, though the authority of that decision is now questionable in the light of the House of Lords ruling in the Wainright case, in which it was held that even if the Human Rights Act 1998 had been in force at the particular time no remedy would be given for having distress merely because privacy was affected as opposed to some other interest. The Protection from Harassment Act 1997 creates civil remdies and criminal offences for harassment.
Although it is unusual for a claim to be brought for the tort in Wilkinson v Downton, it is possible to find some successful modern applications. In the case of C v D and Another (2006) EWHC 166(QB), a headmaster has been found liable under the principle in Wilkinson v Downton (1897) 2 QB 57, for committing an act of sexual abuse to a student which did not involve any form of touching. The plaintiff claimed that he had been sexually abused by the headmaster, D, and also argued that D’s employer, S, was also very much involved for that abuse. The judge found that D’s intentional deliberate of touching of C’s genitals constituted the tort of trespass to the person. C had made it clear that no claim in negligence was made against D. C also succeeded under the principle in Wilkinson v Downton, which was only available if the harm suffered was a recognized psychiatric injury. The judge ruled that C’s psychiatric injury could be attributed to a several causes, and D’s conduct was one of those causes. D had been reckless as to whether he would cause such injury to C, and this brought his conduct and state of mind within Wilkinson v Downton principle. Remedy of £20,000 and S was vicariously liable for the abuse that D had inflicted on C.
The American perspective on the deliberate infliction of harm
The equivalent principle to that in Wilkinson v Downton in the United States of America is summarised in Section 46 of the Re-statement (Second) of Torts. The tort is defined this: ‘one who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress….
The tort has three elements:
(a) The behavior must be extreme and outrageous;
(b) it must be intentional or reckless;
(c) it must cause severe emotional distress or bodily harm.
The key issue is the scope of activity covered by the tort. It does not extend to ‘mere insult, indignities, threats, annoyances, petty oppressions or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind’ There is only liability for conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.’
The American formulation of intention suffers from the same Wilkinson v Downton ambiguity as regards precisely what must have been intended, by simply stating that the relevant conduct must have been intentional or reckless. In Wilkinson v Downton it was held to be sufficient that the defendant did an act which was ‘calculated to cause physical harm’. The judgment does not make it clear whether the court found that the defendant foresaw/intended psychiatric injury (as opposed to merely wishing to play a practical joke). If a claimant in such a case does need to establish this degree of intention, then this action (as any similar action) would face almost insuperable evidential difficulties.
The last issue concerns what damage to the victim is recoverable under the Wilkinson v Downton tort. In Wilkinson v Downton itself the Plaintiff has clearly suffered physical injury. The position in negligence is as follows: ‘Damages are recoverable for any recognizable psychiatric illness’ (Hinz v Berry  2 QB 40, 42 per Lord Denning, MR)
It seems severe emotional distress falling short of actual illnesses does fall however within this tort. It follows then that the possible scope of Wilkinson v Downton (so far as recoverable damage is concerned) is far wider than that in negligence. This appears to have been the view of the Law Commission in its report entitled ‘Liability for Psychiatric Illness’. The Law Commission comments in a footnote:
‘Damages for psychiatric illness caused by an intentional tort appear to be available without special restriction (assuming that the tort is one which protects against personal injury rather than, e.g. economic loss.’ In Wilkinson v Downton the defendant caused the plaintiff physical damage unintentionally by making the practical joke deliberately.
The case Wilkinson v. Downton is one of the landmark British cases in the history of Common Law, as this was the case which recognized first the concept of the tort of nervous shock in the form of mental psychiatric illness and emotional distress. This was the first time when the judges held that a party may seek recovery for outrageous conduct that causes physical harm or mental distress. Since this case, the tort of nervous shock has developed a lot in a century’s time and many landmark cases have come which have set the guide lines for intentional infliction of nervous shock and enhanced the way the cases under nervous shock are now being judged. Tort of Nervous Shock is therefore considered as a separate tort, rather than falling under the tort of negligence as before.
1.R.K. Bangia, Law of Torts.
2.Winfield &Jolovicz, Torts.
3.Ratanlal&Dhirajlas Law of Torts.
1.Pace International Law Review 2006
2.The Albany Law Journal, 1897, Volume 55
3.Mayne’s Treatise on damages, John Dawson Mayne& Sir Lumley Smith, 1899