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Tort Law Lecture notes Durham University Year 1 Term 2 (Epiphany Term)
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These are Tort Law Lecture notes for Lectures 11 - 20 for Year 1, Term 2 aka Epiphany Term. For Durham University
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Lecture 13 – Intentional Infliction of Harm/ Distress &Protection from Harassment Act
Introduction
Structure of the notes:
• Look at Wilkinson v Downton tort:
o Difference between intentional infliction of indirect harm or distress (Wilkinson tort) and trespass to
the person.
o Elements of Wilkinson tort.
• Application and scope of the Protection from Harassment Act.
Where does the Wilkinson tort fit in?
Already done trespass to the person: battery (actual touch), assault (threat of touch) and false imprisonment.
• They all concern harm inflicted intentionally and directly...
• BUT if trespass to the person is limited to intentional infliction of direct harm, what can we use to address
harm which has been intentionally but indirectly inflicted?
o This is where the Wilkinson tort becomes relevant!
The Wilkinson tort is directed at protecting an individual from interference with their person – protect integrity.
Wilkinson tort v trespass to the person
Means of causing harm:
• Trespass against the person: direct infringements to the claimant’s person... there is an actual or threatened
physical interference.
• Wilkinson tort: harm is caused indirectly... there is no actual or threatened physical interference.
Proof of harm:
• Trespass to the person: harm is not an essential ingredient for a successful claim... which means that
trespass to the person is actionable per se (no need to prove loss).
• Wilkinson tort: physical harm/recognised psychiatric injury essential ingredient and must be proved in order
to succeed with this claim.
Tort in Wilkinson v Downton
This case introduced a new tort.
Downton decided to play a practical joke on Mrs Wilkinson. He told her husband had been in an accident. He told her she
needed to meet her husband at the hospital, she reacted badly. She had a violent shock to her nervous system which
brough vomiting and permanent consequences.
She had a claim because the act was calculated to cause physical harm. The harm here is her legal right to personal
integrity and safety. There was no justification.
, ‘The defendant has ... 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. That proposition
without more appears to me to state a good cause of action, there being no justification alleged for the act.’
Intention ought to be imputed... Because it is foreseeable that his act was so plainly calculated to produce some
effect of the kind that was experienced...
Court justifies nervous shock as physical injury as at this time it wasn’t possible to claim for psychiatric harm.
1919: Janvier v Sweeny
Sweeny told the claimant he was a police officer as he wanted to get documents they had. He told her she was in danger
of arrest. These threats caused the claimant psychiatric injury.
Approved the approach taken in Wilkinson but Wilkinson tort barely surfaced over the next 60 years in English tort
litigation. Sweeny confirms the Wilkinson tort.
What he told the claimant was calculated.
Wainwright v Home Office... not convinced.
Wainwright and he son strip searched when visiting their other son in prison. It was distressful and not performed in
accordance with prison rules. Her son developed PTSD but the mother didn’t develop a psychiatric harm.
Court critical of the Wilkinson court. Not convinced of the concept of intention. In this case, the claimants could not rely
on Wilkinson as it does not offer a remedy for mere distress and the necessary intention was not established. The police
officers had acted in good faith but were just sloppy by not following the rules.
• Ultimately suggested that in modern conditions these cases can be dealt with in negligence
O v V (or, Rhodes v OPO) Took a more restricting approach to the Wilkinson tort but didn’t follow Wainwright.
O son of a famous pianist Rhodes. Rhodes had experienced a terrible childhood and wrote a book about the graphic
accounts and dedicated this book to his son. O’s mum wanted it to not be published out of fear for O’s mental health.
(O already had mental health issues). She claimed against Rhodes saying publishing would indirectly cause
psychological harm.
Although the book was dedicated to O, it was not addressed to him. It was addressed to the world at large. The
defendant had a legitimate right to tell his story which was a reasonable excuse.
Imputed intention was mainstream legal thinking during Wilkinson but it no longer has a place in modern tort law.
Three elements to Wilkinson tort (indirect physical or psychological harm:
1) Conduct element: words or conduct directed towards the claimant for which there is no justification or
reasonable excuse.
2) Mental element: The defendant should intent to cause physical harm or severe mental or emotional
distress. Recklessness not enough, there must be direct intent.
3) Consequence element: the consequence required for liability is physical harm or recognised psychiatric
illness (these must be the product of the severe or emotional distress).
Some people say the Wilkinson tort is no longer important due to the Protection from Harassment Act.
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