Revival of the Rule in Wilkinson v Downton

Until very recently, the rule in Wilkinson v Downton was seen to be a tort of diminishing significance in English law. According to Wright J in that case, the tort arises when ‘[t]he defendant … wilfully [does] an act calculated to cause physical harm to the [claimant] … and has thereby in fact caused physical harm to [the claimant].’

Since that case was decided, two developments in the law have encroached into the ambit of the rule’s application. First, the law of negligence provided a cause of action where through the defendant’s negligence the claimant who was directly involved in the accident as a ‘primary victim’ suffered nervous shock. It is arguable that a ‘wilful’ act by the defendant would, to the same extent, count as a ‘negligent’ act for the purposes of a claim in the tort of negligence. Secondly, section 7(3) of the Protection from Harassment Act 1997 provides a civil remedy where a defendant engages in conduct amounting to ‘harassment’ ‘on at least two occasions’ where it relates to a single person, or ‘at least one occasion’ where it relates to two or more persons. Section 3(2) provides that damages may be awarded even if the claimant suffers mere anxiety.

In the recent Court of Appeal case of OPO v MLA [2014] EWCA Civ 1277, however, the potential relevance of the rule in Wilkinson v Downton resurfaced in a case where the claimant had neither a claim under the tort of negligence nor one under the 1997 Act. This paper doctrinally explores the Court of Appeal’s decision in relation to the rule in Wilkinson v Downton.

The Facts

In OPO v MLA, an application for an interim injunction was made to stop STL, a publisher, from publishing a semi-autobiographical book written by a talented young performing artist, MLA (The parties’ identities and relevant locations were anonymised by order of the court.). The book was an ‘artistic and insightful’ way of MLA speaking out concerning his past experiences of sexual abuse at school and consequential episodes of severe mental illness and self-harming, and how he coped with the trauma through his art. OPO, MLA’s 11-year-old son born of his first marriage, now dissolved, brought proceedings by his litigation friend against MLA and STL to prevent the publication of MLA’s book. OPO, who lived with MLA’s former wife in another country, ‘Ruritania’, suffered from attention deficit hyperactivity disorder, Asperger’s, Dysgraphia, and Dyspraxia. Expert evidence indicated that OPO would be adversely affected if he read the book – he might suffer psychiatric injury amounting to ‘physical harm’.

OPO’s Claims

OPO’s case was built on three separate torts – misuse of private information, negligence, and the rule in Wilkinson v Downton. The Court of Appeal dismissed the first of these two for reasons which we will not go into. OPO’s Wilkinson v Downton claim was based on a number of alleged facts: the book was dedicated to OPO; a number of passages in the book were directed to OPO; through an exchange of emails in 2009 between MLA and OPO’s mother, as well as a term of their divorce order (‘Recital K’), MLA had recognised that OPO should not be exposed to details of MLA’s past until he attained an appropriate age, and that he would use his best endeavours to protect OPO from any such detriment-causing information; OPO was ‘computer savvy’, and would seek to obtain information about the book from the internet.

The First Instance Decision

At first instance, Bean J rejected OPO’s claims. He held that the rule in Wilkinson v Downton did not extend beyond false reports. He reasoned that the modern statutory law of harassment would have been unnecessary if it was a legal wrong for anyone to do any deliberate act which was likely to cause psychiatric injury. In particular, he declined to open the floodgates, which would potentially make MLA liable for the psychiatric injury of any vulnerable readers of the book.

The Court of Appeal’s Decision

In the Court of Appeal, Arden LJ (with whom Jackson and McFarlane LJJ, in their brief judgments, agreed) granted the interim injunction on the basis that OPO had sufficiently favourable prospects at trial of successfully establishing his claim under the rule in Wilkinson v Downton. It was held that the view likely to be taken at trial was that the tort would extend beyond false words and threats. There must nevertheless be a lack of justification for the defendant’s conduct vis-à-vis the particular claimant; and in the circumstances of the case there was held to be a lack of justification for MLA to publish the book. It was also held, as to the mental element required, that intention could be imputed in the absence of actual intention or recklessness as to the causing of harm. Such intention was imputed to MLA since the book was dedicated to OPO, some parts of the book were directed to him, and MLA had through the 2009 emails and Recital K accepted that he should prevent OPO from suffering harm.

‘Calculated to Cause Physical Harm’

The decision in OPO v MLA is a significant one in relation to the understanding of the rule in Wilkinson v Downton. As to the conduct of the defendant, it suggests that any conduct can potentially engage the tort. Extending the tort beyond false words and actions is a welcome conclusion. This tort is meant to cover cases where a defendant indirectly inflicts physical harm to the claimant; and surely a wide range of actions or words are capable of so doing.

As to what it means to say that a defendant’s act was ‘calculated to cause physical harm’, previous authorities have suggested that this would be so when a defendant actually intends his acts to cause physical harm, or is reckless as to the fact that his acts are likely to cause the harm that eventuated. The Court of Appeal adds to this a third category of mental state – that of imputed intention. It is, however, unclear from the judgment what guidelines there are for the imputing of intention. Is this at the absolute discretion of a judge, or is there an objective yardstick for imputing intention? The judgment is also unclear about the precise relationship between the fact that the defendant’s conduct must ‘lack justification’ and the imputing of intention – do the same factors underlie the assessment of these elements of the tort?

Conclusion

OPO v MLA indicates how the rule in Wilkinson v Downton, which was once thought to be a ‘dying cause of action’, remains relevant today. It is, however, hoped that, if the case goes to full trial, courts will seize on the opportunity to clarify what it means to say that a defendant’s acts were ‘calculated to cause physical harm’.