Wilkinson V Downton - Subsequent Case Law

37. The difficulty in the judge's way was the decision of the Privy Council in Victorian Railway Comrs v. Coultas (1888) 13 App Cas 222, in which it had been said that nervous shock was too remote a consequence of a negligent act (in that case, putting the plaintiff in imminent fear of being run down by a train) to be a recoverable head of damages. RS Wright J distinguished the case on the ground that Downton was not merely negligent but had intended to cause injury. Quite what the judge meant by this is not altogether clear; Downton obviously did not intend to cause any kind of injury but merely to give Mrs Wilkinson a fright. The judge said, however, at p 59, that as what he said could not fail to produce grave effects "upon any but an exceptionally indifferent person", an intention to cause such effects should be "imputed" to him.

38. The outcome of the case was approved and the reasoning commented upon by the Court of Appeal in Janvier v. Sweeney 2 KB 316. During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some of her employer's documents and sent his assistant to induce her to co-operate by pretending to be from Scotland Yard and saying that the authorities wanted her because she was corresponding with a German spy. Mlle Janvier suffered severe nervous shock from which she took a long time to recover. The jury awarded her £250.

39. By this time, no one was troubled by Victorian Railway Comrs v. Coultas 13 App Cas 222. In Dulieu v. White & Sons 2 KB 669 the Divisional Court had declined to follow it; Phillimore J said, at p 683, that in principle "terror wrongfully induced and inducing physical mischief gives a cause of action". So on that basis Mlle Janvier was entitled to succeed whether the detectives intended to cause her injury or were merely negligent as to the consequences of their threats. Duke LJ observed, at p 326, that the case was stronger than Wilkinson v. Downton 2 QB 57 because Downton had intended merely to play a practical joke and not to commit a wrongful act. The detectives, on the other hand, intended to blackmail the plaintiff to attain an unlawful object.

40. By the time of Janvier v. Sweeney 2 KB 316, therefore, the law was able comfortably to accommodate the facts of Wilkinson v. Downton 2 QB 57 in the law of nervous shock caused by negligence. It was unnecessary to fashion a tort of intention or to discuss what the requisite intention, actual or imputed, should be. Indeed, the remark of Duke LJ to which I have referred suggests that he did not take seriously the idea that Downton had in any sense intended to cause injury.

41. Commentators and counsel have nevertheless been unwilling to allow Wilkinson v. Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the Court of Appeal in Wong v. Parkside Health NHS Trust EWCA Civ 1721; The Times, 7 December 2001 and rejected. Hale LJ said that before the passing of the Protection from Harassment Act 1997 there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v. Downton with no leading role in the modern law.

42. In Khorasandjian v. Bush QB 727 the Court of Appeal, faced with the absence of a tort of causing distress by harassment, tried to press into service the action for private nuisance. In Hunter v Canary Wharf Ltd AC 655, as I have already mentioned, the House of Lords regarded this as illegitimate and, in view of the passing of the 1997 Act, unnecessary. I did however observe, at p 707, that:

"The law of harassment has now been put on a statutory basis…and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence…The policy considerations are quite different."

43. Mr Wilby said that the Court of Appeal in Wong's case should have adopted this remark and awarded Ms Wong damages for distress caused by intentional harassment before the 1997 Act came into force. Likewise, the prison officers in this case did acts calculated to cause distress to the Wainwrights and therefore should be liable on the basis of imputed intention as in Wilkinson v. Downton 2 QB 57.

44. I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v. Downton RS Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney 2 KB 316, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Comrs case 13 App Cas 222 prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.

45. If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment, at QB 1334, 1350, paras 50-51, might have been inclined to accept such a principle. But the facts did not support a claim on this basis. The judge made no finding that the prison officers intended to cause distress or realized that they were acting without justification in asking the Wainwrights to strip. He said, at paragraph 83, that they had acted in good faith and, at paragraph 121, that:

"The deviations from the procedure laid down for strip-searches were, in my judgment, not intended to increase the humiliation necessarily involved but merely sloppiness."

46. Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter's case AC 655, to reserve my opinion on whether compensation should be recoverable. In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. The Protection from Harassment Act 1997 defines harassment in section 1(1) as a "course of conduct" amounting to harassment and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.

47. In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton 2 QB 57. It does not provide a remedy for distress which does not amount to recognized psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ, at QB 1334, 1355-1356, paras 67-72, that Wilkinson v Downton has nothing to do with trespass to the person.