Intentional infliction of harm – the Wilkinson v Downton doctrine in the modern day

Background

The principle that a claimant can claim damages for intentional infliction of mental suffering (not requiring any physical contact) comes from the case of Wilkinson v Downton [1897]. In that case, the defendant played a ‘practical joke’ in which he told the claimant, Mrs Wilkinson, that her husband had been seriously injured in an accident and that he was lying in a pub with both legs broken. This was false, but, believing it to be true, Mrs Wilkinson suffered severe nervous shock which had a permanent effect on her health. The court considered the defendant’s practical joke to be a deliberate act calculated to cause harm to the claimant, and that the effect on her was not too remote. She was successful in recovering damages.

Essentially, Wilkinson v Downton creates a tort of intentionally inflicting mental suffering, which a claimant can rely on in cases where other more traditional torts of assault or battery are not made out. The facts of Wilkinson are clearly unusual and, consequently, this tort was seldom relied upon for over 100 years since that case. When it has been argued, the courts have been clear that there must be recognised psychiatric injury (see Wong v Parkside [2001]) and general distress is not sufficient.

However, intentional infliction of mental suffering is now being argued before the courts more often. It was considered by the Supreme Court in 2015 in the case of OPO v MLA. In that case, a famous pianist, Mr Rhodes, wanted to publish a semi-autobiographical book which discussed his troubled life including details of him being sexually abused as a child. His ex-wife sought to prevent publication on the grounds that it would cause psychological harm to their son, who had Asperger’s syndrome. The Court of Appeal granted an injunction under Wilkinson v Downton ruling that even if the statement in question (in this case the details of his sexual abuse) was true, it was sufficient that the statement was unjustified and was intended to cause, or reckless about causing, psychiatric injury. The Supreme Court disagreed. It found that there were three elements to the tort: the conduct element, the mental element, and the consequence element. In this case neither the conduct element nor the mental element were satisfied. The conduct had to be unjustifiable, which it was not in this case. The mental element required intention to cause harm, not simply recklessness, and Mr Rhodes did not intend to cause harm to his son.

The Court of Appeal’s ruling would have constituted an extension of the Wilkinson doctrine but the Supreme Court curtailed it and the doctrine remains narrow in scope, primarily because it is a high bar to prove that a person by their conduct intended another to cause psychiatric harm. The doctrine was again considered more recently.

GKE v Gunning [2023]

In this case, the claimant brought a claim for psychiatric injury caused by her therapist making sexual comments and suggestions to her during therapy sessions. She did not allege any physical assault, so the claim was brought in (a) negligence and (b) the doctrine of intentional infliction of harm. The reason for the claimant raising intentional infliction of harm was because it would have allowed her to claim aggravated damages. The defendant was not legally represented as his professional liability insurance had been terminated.

The claim in negligence was successful, but the court had to separately consider the claim of intentional infliction of harm. The High Court examined the case law since Wilkinson and emphasised that using words that only cause distress, as opposed to psychiatric injury, was not enough. At para 227, the court found that the defendant was reckless as to his words causing harm to the claimant but he did not intend to cause harm. Ritchie J stated: “I do not consider that the courts should be quick to imply intention where there is no assault and where negligence already covers the need for compensation.” The lack of intention meant that aggravated damages were not awarded (although general damages for the negligent breach of duty were awarded at £10,000).

As a side note, another interesting point in this claim was that the claimant was classed as a vulnerable witness and allowed to give evidence by video link in advance of the trial. The defendant’s cross-examination questions had been provided to her solicitors in advance, but were also shown to her, which was not allowed and caused an ‘unlevel playing field’. For more information on this point see our article on this issue authored by my colleague, Lauranne Nolan which can be found here.

Commentary – Will we see a rise in claims for intentional infliction of harm?

The case of GKE v Gunning provides another example of the difficulty in relying on a doctrine which, despite being established over 100 years ago, has rarely been relied upon successfully. The requirement for intention to cause harm, and for the harm to be a recognised psychiatric illness, make it difficult to prove. The need for it to cause a recognised illness is no doubt a policy decision to avoid opening the floodgates – as Lord Hoffman pointed out in Wainwright v Home Office, “In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others… I am not sure that the right way to deal with it is always by litigation.”

Intentional infliction of harm is, however, being argued more frequently recently and that trend is likely to continue. Previous claims have usually centred on harm being inflicted by words spoken, but in the modern day it is likely that claimants will start to bring claims in other circumstances, such as for harm suffered as a result of private images being shared online without their consent. Due to the recent classification of such conduct as a criminal offence, the criminal courts have recently heard a number of cases of ‘image-based abuse’ – an example being the conviction of reality TV star Stephen Bear in March 2023, who received a 21-month prison sentence for sharing an intimate video of his ex-girlfriend online. This increase in criminal cases may well lead to a rise in civil claims. It will still be necessary for a claimant to prove that the defendant shared the intimate image/video with intention to cause psychiatric injury as opposed to being reckless as to whether such injury might be caused, but with the sharing of such images often being motivated by revenge, it may well be possible to prove such intention.

In fact, the first case of this type reached the civil courts in February 2023. In FGX v Gaunt, the claimant discovered that her partner had concealed a camera in their bathroom and had uploaded intimate images of her online, with a photo of her face, for which he had obtained payment from pornographic websites. The claimant suffered PTSD as a result. The judge stated that the impact on the claimant in such circumstances is akin to the impact of sexual abuse notwithstanding the abuse being image-based and not physical. General damages were awarded at £60,000. It should be noted that in FGX the defendant was not legally represented and did not participate in proceedings, meaning that judgment was entered in default of a defence and the hearing was only to assess quantum. Whether the outcome would have been any different had the defendant attempted to defend the claim is up for debate, but what this case shows is that there is an emerging precedent in the High Court for claimants to successfully claim compensation under Wilkinson v Downton for the psychiatric harm caused by having their intimate images shared online without their consent.

It is important to note that in the two recent cases of FGX and GKE, the events in question were contemporaneous, so limitation was not in issue. It would be more difficult for the courts to consider a claim for intentional infliction of harm when the events were historic, for example, a claim based on verbal abuse many years ago. This would require an assessment of what the alleged abuser’s intention was decades after the event. Further, from a causation perspective, any psychiatric effect on the claimant may be harder to disentangle from other life events. The claimant would have to prove that it was the events in question that caused a psychiatric illness, which may not be straightforward, particularly if the claimant has suffered other difficult life events.

It is likely that the civil courts will see more image-based abuse claims in the future. The question is whether the Wilkinson v Downton doctrine will be extended in other areas or whether the requirement for intention (not recklessness) to cause harm, and for the harm to be a recognised psychiatric injury, will keep the doctrine narrow in scope.