Compulsory Section Reading

Modernising the tort of Wilkinson v Downton, J.P.I.
Law 2023, 1, 13-35
For educational use only

Modernising the tort of Wilkinson v Downton
Rachael Mulheron *
Table of Contents
Introduction
Then … and now
Reforming the threshold harm
Reforming the "conduct element"
Reforming the intent element
Reforming the "consequence element"
A new defence
Conclusion
Appendix
Journal Article
Journal of Personal Injury Law
J.P.I. Law 2023, 1, 13-35
Subject
Torts
Other related subjects

Personal injury
Keywords
© 2023 Thomson Reuters. 1

Modernising the tort of Wilkinson v Downton, J.P.I. Law 2023, 1, 13-35
Causation; Intentional torts; Personal injury; Psychiatric harm; Tortious liability
Cases cited
Wilkinson v Downton [1897] 2 Q.B. 57; [1897] 5 WLUK 14 (QBD)
*J.P.I. Law 13 Abstract

A practical joke in the Albion pub in 1896 in East London spawned a cause of action, the rule in
Wilkinson v Downton , which persists to this day. However, the tort has suffered from limited utility
since Wright J’s famous judgment. It is argued, in this article, that the time has come to reform and
to modernise the tort, so as to compensate the claimant who has been the subject of a defendant’s
statement, made intentionally to cause that claimant serious emotional distress. Reforming the tort
will fill a gap in Tort law by enabling the protection of C’s personal integrity, in circumstances of
intentional wrongdoing, which other torts do not currently facilitate. It would also re-fashion the
tort for modern societal conditions in which one-off threats, suggestions, requests and statements—
written, image-based and pictorial, and directed towards C via social media platforms, electronic
communications, TikTok and other media—can do C substantial mental harm.
Introduction
The thesis of this article is that the time has come whereby the tort in Wilkinson v Downton, 1
promulgated by Wright J in 1897 and judicially tweaked since, should be reformed in English law
—whether judicially or statutorily—to constitute the following cause of action (Revised Wilkinson
Tort):
"The intentional infliction upon C of physical (bodily) injury, or serious emotional distress, which
is caused by D’s statements directed to C."
Presently, the tort (Current Wilkinson Tort) stands for the following cause of action:
"The intentional infliction upon C of physical (bodily) injury, or emotional distress giving rise to
a recognised psychiatric injury, which is caused, or materially contributed to, by D’s statements
and conduct."
If the reforms suggested in this article are implemented, the revised tort would provide a remedy
for statements made on D’s part which were made with the intention of causing C harm, and for
which present Tort law does not adequately provide. Incredibly, since its promulgation by Wright
J more than 120 years ago, the Current Wilkinson Tort has succeeded in four subsequent cases
in England 2 —literally a handful! It is difficult to envisage a tortious cause of action which has
been less useful in terms of successful *J.P.I. Law 14 outcomes 3 —and particularly in a context

whereby intent to cause C the requisite harm on D’s part is alleged which ought, theoretically, to
attract a greater willingness on the part of Tort law to provide redress for the injured party. 4 Yet,
if re-fashioned, the tort could become both relevant and important to modern societal conditions,
especially where D’s statements, invitations, suggestions and threats, disseminated via social
media platforms and e-communications with the intention of causing C serious emotional distress,
can be both far-reaching and damaging. It is also notable that two of the four successful cases have
occurred in the last decade, both concerning sexual impropriety perpetrated by an educator against
a pupil, suggesting that the tort may have an important role to play in a sector of society in which
vulnerability and inequality of power can feature.
To set the context at the outset, it is helpful to revisit the origins of the Wilkinson Tort, and why
the revised tort is needed as part of the English Tort law landscape. The following sections then
examine, element-by-element, the justifications and analysis which support the proposed changes
—dealing, in turn, with the requisite threshold harm; the "conduct element"; the "intent element";
and the "consequence element", encompassing causation and remoteness of damage. Defences are
also considered and the final section concludes.
The Wilkinson Tort has travelled, as so much common law does, to the four corners of the common
law world. 5 However, for the purposes of the reform recommendations contained in this article,
particular regard is given to English case law and statutory enactments. The tort has been afflicted
by uncertainty, 6 obscurity 7 and sparse usage in this jurisdiction—and has been judicially ascribed
unhappy adjectives such as that "peculiar tort" 8 —all of which has undermined its effectiveness
and raised the spectre of how it could usefully be refashioned. 9 In 2015, in Rhodes v OPO, 10
where the tort also failed, the Supreme Court sought to recast the tort’s elements somewhat, and
that decision and its reasoning provide an important reference point (sometimes departed from)
for the reforms which are suggested herein. Even from those many cases which have failed one
or more of the tort’s elements (see, for example, the recent example of BVC v EWF in 2019 11 ),
lessons can be learnt.
The bottom line is that the Current Wilkinson Tort suffers from extremely limited utility in its
current incarnation, but that there is a "gap" in English law that could be filled if the tort was to
be re-fashioned and modernised. *J.P.I. Law 15
Then … and now

To set the context of the era and circumstances in which the Current Wilkinson Tort arose: the
incident occurred in 1896 in the Albion Pub, located at 25 St Paul’s Road 12 in Bow Common,
London.

Photo dated 2005 © David Kinchlea, and reproduced with the kind permission of Mr Kinchlea
and The Lost Pubs Project.
Thomas Wilkinson became publican in 1895, 13 and Mr Downton, D, was a regular customer. On
9 April 1896, Mr Wilkinson went to the races at Harlow, and left his wife, Lavinia Wilkinson, C,
to manage the bar. D visited the pub that evening, and falsely told C, as an unpleasant practical
joke, that he had received a telegraphic message that her husband had been injured in an accident
involving a horse-drawn vehicle on his way back from the races, that he was lying "smashed up"
in The Elms pub in Leytonstone with two broken legs and with other serious injuries, and that C
should fetch him. C sent others by train to reach her husband, but they could not find him. In fact,
C’s husband returned safely from the races by train later that evening. However, the effects of the
practical joke on C were dramatic. She became seriously ill. As well as vomiting, her hair turned
white, and she suffered "a violent shock to her nervous system", all of which required extensive
medical treatment. C sued D for the harm caused by this incident. She recovered the cost of the
railway fares which had been incurred in the fruitless train journey to Leytonstone under the tort of
fraudulent misrepresentation (deceit). The more controversial head of damage (the "real question"
which was "without precedent", as Wright J put it 14 ) was the psychiatric injury which C had
suffered. Wright J permitted recovery of damages (£100) for this harm, inventing a new cause of
action for which the case now stands. *J.P.I. Law 16 15
Lord Hoffmann remarked, in Wainwright v Home Office 16 that the Wilkinson Tort was really
an accident of legal history and timing. A decade earlier, in the 1888 case of Victorian Railway

Commissioner v Coultas, 17 psychiatric injury was held not to be compensable in negligence,

because that type of harm was deemed as too remote at law. That decision was departed from in
1901 in Dulieu v White, 18 ironically another incident-in-a-pub case, where negligently-inflicted
psychiatric injury was recovered. In the meantime, however, Wilkinson v Downton came before
Wright J in 1897. Finding that Mr Downton did not actually intend to cause Mrs Wilkinson’s
psychiatric injury, but being unable to permit Mrs Wilkinson to recover in negligence, Wright
J devised a rule of inflicted psychiatric injury—not negligently-inflicted, but with an "imputed
intention" to inflict, because D’s practical joke was "calculated" to cause C psychiatric harm.
Lord Hoffmann noted that Lord Wright’s concept of "imputed intention" really "sailed as close to
negligence" as was possible, given the bulwark of Coultas. 19
However, the fact remains that the Current Wilkinson Tort has survived the modern advent of
negligently-inflicted psychiatric injury for secondary victims 20 (that being the sort of scenario
that Wilkinson v Downton most closely resembles, with the immediate "victim" being Thomas
Wilkinson, and with Lavinia, his wife, as claimant, being the secondary victim who shared a
close tie of love and affection with him 21 ). The Wilkinson Tort certainly has not (to quote Lord
Hoffmann in Wainwright 22 ) "disappeared beneath the surface of the law of negligence". It exists,
and is still claimed in a variety of scenarios—but it has been forlornly unsuccessful in most cases.
Law reform is only necessary if it fills a gap, and redresses existing inadequacies in the law. So,
why is the Revised Wilkinson Tort needed? It is suggested that there are three reasons (quite apart
from its widespread lack of successful application in current form).
First, other torts do not "cover the field", and potentially leave a gap in redress which the Revised
Wilkinson Tort is designed to fill. The statutory tort created by virtue of the Protection from
Harassment Act 1997 (PHA 1997) includes harassing incidents arising from speech, and also
allows for recovery of damages for emotional distress. However, purely by virtue of its statutory
drafting, it requires a course of conduct (two or more incidents), 23 and does not cover serious one-
off events, 24 nor individual acts by D that have no nexus with each other, 25 nor acts that occur out-
of-jurisdiction. 26 Private nuisance is still hampered by the Hunter rule of standing that requires C
to have a proprietary or possessory interest in the land where D’s interference with C’s peaceable
enjoyment has occurred, and damages awardable under the tort reflect its property-based nature. 27
Defamation will be inapplicable where D’s statement contains *J.P.I. Law 17 a threat but not a
defamatory imputation, or where it is made by D to C without publication to another. 28 Battery
has "rescued" some parties who sued (alternatively) under the Current Wilkinson Tort, but only
because there was direct application of force by D upon C; 29 absent that, battery does not apply.
Assault entails no application of force, but requires the imminent threat of physical force and an
overt ability to carry out the threat, which is usually missing in scenarios in which D utters a verbal
threat or statement intending to distress C. 30 The tort of injurious falsehood is directed towards
false statements which are calculated to harm the property, goods, or business or economic interests

of the claimant, entirely different types of interest than those which the Wilkinson v Downton tort
focusses upon. 31 Negligence giving rise to pure psychiatric injury, arising from carelessly-made
statements or conduct, requires both proof of a recognised psychiatric injury as a pre-requisite to
any recovery, 32 and a duty of care owed by D to C which may not arise as a matter of law. 33 Hence,
these various torts do not cover the legal territory which the Revised Wilkinson Tort proposes to
cover.
Secondly, criminal law will not fill the void either. The Criminal Injuries Compensation Fund
provides for compensation for mental injury (falling short of a recognised psychiatric injury) that
is consequential upon "a crime of violence", 34 but the types of statements to which the Revised
Wilkinson Tort is directed do not fall within this description, and hence, C would be ineligible
under that Fund. The enactment in 2015 of the criminal offence of disclosing private sexual
photographs with intent to cause distress 35 does not provide for compensatory redress either.
Thirdly, in the modern world of social media platforms, with the proliferation of text and email
communications, and with the increasing upload of humiliating TikTok posts, 36 D has a greater
ability than ever to "reach" C with statements which can cause C serious emotional distress. It
is notable that one of the four successful cases under the Current Wilkinson Tort was the first-
ever "sexting case" in English law giving rise to damages, but its success depended upon C’s
suffering a recognised psychiatric injury (a pre-requisite which will not be necessary under the
Revised Wilkinson Tort). 37 Hence, the modern world is very different from when Mr Downton
committed his practical joke in the Albion Pub in 1896, and the Wilkinson Tort should be revised
to reflect and to accommodate that reality. Although it has been academically suggested 38 that
the Wilkinson Tort is not particularly adept at dealing with victims who are threatened or coerced
into sending correspondence and images of a sexual nature, it is contended in this article that, with
some finessing, the tort could place victims in a much stronger position. Reforming the *J.P.I.
Law 18 substantive cause of action, together with the ongoing development of the online court
system in England, 39 may provide a real opportunity for C to access redress for serious emotional
distress caused by D’s intentional statements and threats.
Hence, the purpose of the following sections is to examine how each element of the Current
Wilkinson Tort would be amended under this reform proposal, either to ringfence the element
given the lesser pre-requisite damage of "serious emotional distress" or to reflect the fact, more
explicitly, that the Revised Wilkinson Tort is so much closer to trespass than it is to case.
Reforming the threshold harm

The Current Wilkinson Tort has long been legally described as an action on the case, and not a
trespass to the person, 40 a point to which attention will return when discussing the remoteness
element. For present purposes, it is accepted that, as with the Current Wilkinson Tort, the Revised

Wilkinson Tort will not be actionable per se, but will require proof of damage. In Wilkinson v
Downton, Wright J stated that C had to show that D had "infringe[d] her legal right to personal
safety, and has in fact caused physical harm to her". 41 However, it was accepted in Wainwright
(and evident from Wright J’s judgment itself) that any reference to "physical harm" included
psychiatric harm. 42
Physical (as in bodily, rather than mental) harm to C as a result of D’s intent to cause such harm
is claimable under the Current Wilkinson Tort, but has rarely featured in case law to date. Bodily
injury under the Current Wilkinson Tort is doctrinally "indirect" and typically "consequential".
It is indirect (and that is why it has long been designated as an action on the case) because it
is to be contrasted with the trespassory torts where C’s injury arises either from the intentional
and direct application of force to C’s person without consent (battery) or the apprehension of the
immediate application of force with the capacity to carry that out with immediate effect (assault).
Bodily injury under the Current Wilkinson Tort is (typically, but not necessarily) consequential
because mental harm is usually the primary harm being compensated for. This was the scenario
in both Wilkinson v Downton 43 itself, and subsequently. 44 It is doctrinally feasible that, had Mrs
Wilkinson suffered only bodily injury as a result of the telling of the practical joke, those would
have been recoverable as indirectly-inflicted injury, but thus far, successful claims for bodily injury
have accompanied intentionally inflicted mental harm. Some claimants 45 have not managed to
surmount the de minimis threshold that necessarily applies to the recovery of damages for bodily
injury (and, indeed, whether Mrs Wilkinson’s own injuries would now qualify is doubtful 46 ). In
other case law, the medical evidence has not been sufficient for the court to conclude or to infer
that physical injury to the claimant occurred by reason of the defendant’s conduct or statements. 47
Absent any actionable bodily injury, the claim brought by C under the Wilkinson Tort is one for
"pure" mental harm—and that is where the focus of the tort, and of this article, lie. *J.P.I. Law 19
In common with negligence, the Current Wilkinson Tort stipulates that (except where injunctive
relief is being urgently sought 48 ) damages for distress, anxiety, misery, anger, fright, humiliation,
indignation, etc, cannot be recovered, even if D intended, by his conduct or statements, to cause
C precisely that type of harm. 49 Proof that C suffered from a recognised psychiatric injury is
necessary ("an essential constituent element", as recently described in one case 50 ). This threshold
for actionable damage has been judicially described as "psychiatric injury in a technical sense,
i.e. a condition to which a recognised diagnostic label attaches", 51 and "a recognised medical
condition (such as clinical depression or post-traumatic stress disorder)", 52 and is typically (but
not always 53 ) assessed in accordance with standard diagnostic classifications. 54 In a substantial
departure, however, it is proposed that, under the Revised Wilkinson Tort, "serious emotional
distress" would be the minimum threshold injury required, which harm could fall short of a
recognised psychiatric injury. Under the revised tort, proof of a psychiatric injury would go to
quantum, but not to threshold liability.

This idea is not a novel one. As well as receiving academic 55 and law reform 56 support, some
English appellate judges have foreshadowed that a lesser form of mental harm ought to be
actionable under the Current Wilkinson Tort. Exactly 100 years after Wilkinson v Downton, Lord
Hoffmann remarked, in the private nuisance case of Hunter v Canary Wharf Ltd, that:
"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." 57
His Lordship also reserved opinion, in Wainwright, as to whether compensation should be

recoverable where there was "a genuine intention to cause distress" to C. 58 In Rhodes, the majority
observed 59 that Lord Hoffmann had left this important issue open, but that it was "common
ground" there that a recognised psychiatric injury was required. In a separate judgment, Lords
Neuberger and Wilson stated that "there *J.P.I. Law 20 is plainly a powerful case for saying that,
in relation to [the Wilkinson Tort], … it should be enough for [C] to establish that he suffered
significant distress as a result of D’s statement". 60
In the author’s view, the "powerful case" for reform of this sort must be considered through both a
medical and a legal lens. The law’s current insistence upon a recognised psychiatric injury under
the Current Wilkinson Tort is arguably flawed under both lenses.
The medical perspective

From a psychiatrist’s point of view, the distinction between emotional distress and anxiety on the
one hand, and a recognised psychiatric injury such as depression or post-traumatic-stress-disorder
on the other, is not as clear-cut as the common law would lead one to believe (as the author has
discussed previously 61 ). In its submission to the England and Wales Law Commission’s study on
mental harm, the British Medical Association stated that "[t]here is no sudden cut-off point where
grief and other distresses suddenly become psychiatric illnesses". 62 Some courts have made the
same point. In Dickie v Flexcon Glenrothes Ltd, the claimant had argued, "simply because anxiety
and psychiatric injury were treated differently by the common law, it did not mean to say that
they were, in fact, different types of injury". 63 Having listened to the psychiatric evidence, the
court agreed:
"anxiety and psychiatric harm are both, in my view, conditions with a similar aetiology, both
sharing similar symptoms but with one being more serious than the other … it seems quite artificial
to attempt to draw a borderline between anxiety and psychiatric illness caused by harassment
… the victim of harassment is not entitled to damages for a label, but for what he has actually
suffered." 64

Moreover, some medical scholars point out that "[f]rom the beginning of psychiatric nosology
in the late 19th century until the 1970s, anxiety and depression were widely accepted in the
non-psychoanalytic psychiatric community as different manifestations of one affective spectrum
disorder", but that it was actually pharmacological innovation which prompted the view that
anxiety disorders were somehow different from other, more serious, conditions:
"The rise of psychopharmacology that started in the 1950s led to the development of drugs that had
a relatively specific antidepressant (e.g. tricyclics) or anxiolytic effect (e.g. benzodiazepines), and
supported a dichotomization between depression and anxiety. During the development of the 3rd
edition of DSM-III, the drafting of the sections on depressive and anxiety disorders was assigned
to two different advisory committees, which contributed to the fact that anxiety and depression
were included as completely different disorders in DSM-III [1980]." 65
Other medical scholars have remarked on the lack of realism which the categorisation approach
of mental disorders in DSM-III brought about, and which DSM-IV largely followed:
"[given] the high comorbidity of general anxiety and depressive disorders, the clinical difficulty
of teasing these disorders apart, and the meanings of symptoms to patients, I remain skeptical
about the *J.P.I. Law 21 utility of keeping these problems separate in a new classification. It
seems likely that major depression and general anxiety disorders are manifestations of a similar
underlying disease process." 66
To the relief of other medical commentators, a significant feature of DSM-5 in 2013 67 was to
move away from the strict categorisation approach of mental disorders which the earlier editions
had adhered to:
"the use of strict categorical boundaries has given the impression of psychiatric disorders as
unitary, discrete phenomena [whereas] [t]hroughout general medicine, conditions are frequently
conceptualized on a continuum from ‘normal’ to pathological, without relying on a singular
threshold to distinguish the presence or absence of disease." 68
Hence, the English common law’s insistence upon a "bright-line" distinction between emotional
distress and anxiety on the one hand, and a recognised psychiatric injury on the other, has long
been considered, medically, to be artificial and unrealistic.
It is suggested that some of the features of a "generalised anxiety disorder" 69 as was categorised in
the first version of DSM-V could indicate the type of "serious emotional distress" that could trigger
the Revised Wilkinson Tort, i.e. distress that: (1) is "excessive and typically interferes significantly
with psychosocial functioning"; (2) is "pervasive, pronounced, and [with] longer duration"; (3)
causes "impairment in social, occupational, or other important areas of functioning"; and (4) is
accompanied by physical symptoms such as irritability, being easily fatigued, or disturbed sleep. 70
Hence, the types of factors to which regard might be had, when assessing whether C has suffered

the requisite mental harm, could include: how seriously C’s cognitive functions and participation
in daily activities were impaired as a result of D’s intentional acts; the length of time for which
the impairment was suffered; the extent of medical care which C required as a result of D’s acts;
the extent to which C’s functioning in social or employment settings was affected; and the extent
of any accompanying physical symptoms. 71
The legal perspective

Moreover, four reasons justify, at law, a lower damage threshold under the Revised Wilkinson Tort.
First, it is an intentional tort which requires deliberate statements by D—there is nothing careless or
accidental about it. Whatever the arguments may be for permitting the recovery of something less
than a recognised psychiatric injury in negligence, 72 the argument in favour of a lower threshold
of injury is much stronger where intent on D’s part is concerned. An appropriate quid pro quo is
that D should be held to greater account for intentionally-caused harm. This is the point made by
Lord Hoffmann in Hunter v Canary Wharf, i.e. "the policy considerations are quite different". 73 In
Rhodes, the Supreme Court put it similarly: "negligence and intent are very different fault elements
and there are principled reasons for *J.P.I. Law 22 differentiating between the … possible extent
of liability for causing personal injury in either case". 74 The stricter the intent element is construed,
the stronger this argument.
Secondly, a lesser form of harm, i.e. emotional distress, is permitted for many common law torts
which lie at the "intentional" or "malicious" end of the spectrum, e.g. for the trespassory torts
of battery, assault and false imprisonment; 75 and for malice-based torts such as the malicious
prosecution of criminal proceedings and (since 2016) civil proceedings. 76 Some judicial dicta also
suggests that for the tort of misfeasance in public office, C must have suffered from a "grievous
non-physical reaction" that may fall short of a recognised psychiatric illness. 77 In that regard, the
Current Wilkinson Tort has always sat uncomfortably with these common law cousins.
Thirdly, claims for anxiety or distress, unaccompanied by any physical injury, are sufficient for
various statutory torts which entail wrongful intentional conduct by D. For example, Parliament
has decreed that the lower threshold of damage is appropriate under the PHA 1997 ("[r]eferences to
harassing a person include alarming the person or causing the person distress" 78 ). This provision
has arguably stultified any strong judicial willingness to recouch the Current Wilkinson Tort to
permit recovery for mere emotional distress 79 (albeit that it is contended in this article that the
PHA does not "cover the field", hence the need for the Revised Wilkinson Tort). In Mbasogo, it
was pointed out that various additional statutory torts which proscribe intentional discriminatory
practices also provide compensation for "injury to feelings" amounting to distress. 80 It is also
notable that, for injury arising from a "crime of violence", the Criminal Injuries Compensation
Scheme permits recovery for mental injury that is disabling, but falls short of a "medically
recognised illness or condition". 81

The final point draws upon Lord Neuberger’s judgment in Rhodes, i.e. that if the tort only requires
that there be an intent on D’s part to cause "significant distress as a result of D’s statement" as a
minimum (as discussed later in the article 82 ), then it is "not entirely easy" to reconcile that element
of the tort with a threshold requirement that C must have suffered something more than that, viz.
a recognised psychiatric injury. 83 Consistency demands that the elements of threshold damage
and intent coalesce.
Thus, the Revised Wilkinson Tort’s allowance for a lesser form of damage than a recognised
psychiatric injury would be consistent both with existing statutory regimes and with other
intentional common law torts. It would also make doctrinal sense. However, it is certainly not the
author’s contention that every trivial or transient emotional distress caused to C by D’s intent to
cause severe emotional distress should be compensated. A de minimis threshold has long applied
to claims for mental injury in English Tort law, 84 and suggestions as to how the threshold of
"serious emotional distress" could suitably be assessed have been made above. *J.P.I. Law 23 85
Reforming the "conduct element"

In what was described in Rhodes as "the conduct element" of the Current Wilkinson Tort, 86 it is
proposed that the Revised Wilkinson Tort should be amended in four important respects.
Conduct versus statements

Over the decades, the Current Wilkinson Tort has expanded in English law, such that three types of
conduct can trigger the tort: (1) where D conveys false information to C, knowing that information
to be untrue, but which C believes to be true, which Wilkinson v Downton itself and other case
law 87 demonstrate; or (2) where D verbally threatens C, which has the effect of pestering and
intimidating C, causing C to suffer harm, but without an overt act indicating an immediate intention
to commit battery (otherwise the threat would amount to assault); 88 or (3) where D commits an
intentional act (lawful or unlawful) against C which D intends to cause C harm. Under this last-
mentioned category, various acts have been judicially noted as being at least capable of triggering
the tort—from deliberately letting a guard dog out of police control 89 to locking C out of her
office and setting off her car alarm; 90 from deleting the contents of a person’s Facebook profile
that contained intimate poems and photographs of C’s 91 to taking someone hostage to demand
money from family member C for his safe release; 92 and from conducting a strip search of C
contrary to the protocols required by prison rules, 93 to videoing C whilst he was in the shower
naked. 94 The case law demonstrates that the Current Wilkinson Tort has expanded well beyond
its original inception of a false statement.

However, there has long been judicial disquiet about this expansion. In Rhodes, Lord Neuberger
considered that the Current Wilkinson Tort should be limited to "distressing statements"; 95 extra-
curial commentary has favoured that restriction; 96 and earlier authorities had sought to limit the
tort in that way too. 97 The question hence arises as to whether intentional conduct, in the absence
of statements, should continue to be covered under the Revised Wilkinson Tort.
On balance, the author considers that it should not. Rather, the Revised Wilkinson Tort should
focus upon D’s statements which are intended to inflict emotional distress on C. For these
purposes, the meaning of "statements" should be widely-construed, to encompass the conveyance
of false information, orally or in writing (similarly to the position under the Current Wilkinson
Tort, the conveyance of true information would not be caught up within its ambit); threats,
express or implied; requests and demands; warnings; and images, silent videos, and pictorials,
as well as words. Hence, it is entirely within the scope of the Revised Wilkinson Tort that a
defendant’s sending sexual images of himself to the claimant and telling her that he loved her via
Facebook messaging, as part of grooming behaviour which ultimately led to *J.P.I. Law 24 sexual
activity; 98 or a defendant’s encouragement to the claimant to send to him indecent images of
herself together with "sexual banter" in text and email messages between them, 99 would constitute
the sort of "statements" necessary to invoke the tort.
The main concern in so restricting the tort is: what about the one-off incidents of conduct by D
which involve no statements directed to C (recognising that a course of conduct would potentially
be covered by the PHA 1997)? The reality is that, under the Current Wilkinson Tort to date, most
cases in which reliance has been placed on D’s conduct have involved statements too. 100 Hence,
those sort of cases would be covered by the Revised Wilkinson Tort, precisely because of the
statements involved. For the rare case of D’s conduct, absent any statements, which causes C either
physical harm or psychiatric injury, then in the author’s view, C should be left to his compensatory
remedies elsewhere—via assault, battery, or the statutory tort under the PHA 1997, if D’s conduct
was intentional; or via negligence, or to negligent assault (to the extent that that line of authority is
developed 101 ), if D’s conduct was reckless or careless; or via the Criminal Injuries Compensation
Fund, if D’s conduct constitutes a "crime of violence" against C. Actions for infringement of the
ECHR may also be possible in the event that D is a public authority (e.g. for the strip-search of the
mother in Wainwright, in which no actionable statements were made towards the mother during
the search, a remedy for infringement of art.8 could arguably have been possible, had the case not
preceded the implementation of the ECHR into English domestic law 102 ).
In essence, there is no sufficient gap that requires that the Revised Wilkinson Tort should remain
operative for one-off incidents of conduct which occur absent any statements. Moreover, this
reform would return the tort more closely to its roots, a position which some judges have also
preferred, rather than "lump[ing] together physical actions and statements". 103

Directed statements
The very point of Mr Downton’s practical joke was to upset the publican’s wife into thinking that
her husband was lying seriously injured elsewhere. The statement was directed to Mrs Wilkinson,
and was conveyed to her directly too. However, two questions immediately arise under the Revised
Wilkinson Tort—does D’s statement need to be addressed to C directly and "in person"; and does
it need to be directed to C as an individual, or can it be addressed to C as one of a group (or even
more widely)?
As to the first question, can it sensibly be suggested that, had Mr Downton told his practical
joke about Mr Wilkinson’s "accident" to a barmaid at The Albion, who then relayed it to Mrs
Wilkinson who was in her rooms upstairs, Mr Downton would not have been found liable? This
invokes the concept of the "distant victim", whereby D’s statement or threat is plainly directed
towards C, but it is said not in the presence of C but in the presence of third party (TP) who
then passes it onto C causing C emotional distress. It has been rarely litigated under the Current
Wilkinson Tort—and when it has arisen, it was without the benefit of any argument on the
point. 104 Elsewhere in Commonwealth case law, 105 these types *J.P.I. Law 25 of cases have
been regarded as "exceptional". 106 However, in the author’s view, they should not be ruled out
under the Revised Wilkinson Tort. This would accord with modern societal conditions, whereby
serious threats and false statements can be made about C on social media platforms and via
electronic communications, and which are then passed onto C. Chain-like communications are
more of a reality now. Of course, the role of the TP in such cases will be legally relevant, in that
C’s emotional distress could be exacerbated by how the information or threat was communicated
to C by that intermediary. That issue goes to causation, however, and not to the conduct element.
As to the second question, there is a marked judicial division of opinion as to whether or not D’s
statement must be directed to C as an individual, or as one of a group, under the Current Wilkinson
Tort. The tort has certainly been judicially discussed in scenarios where D’s statements were not
directed towards C individually, but in which C was caught up—and the judicial reactions have
been quite different. In Breslin v McKenna, warnings about the planning, planting, and detonation
of the bomb at Omagh which killed 29 people were not directed particularly towards any of the
12 claimants who sued the Irish Republican Army, 107 and whilst the Wilkinson Tort did not
succeed there (battery did), there was no judicial discussion of the fact that it may have been
an inappropriate scenario for the tort altogether because the statements (and conduct) concerned
the public-at-large. In Rhodes, however, there was explicit consideration of the point. Where the
concert pianist Mr Rhodes intended to publish his autobiography Instrumental, dedicated to his son
OPO, which outlined the violent sexual abuse perpetrated upon Mr Rhodes from a young age, and
which (it was alleged) would cause serious emotional distress to OPO, C, if published, the Supreme
Court members agreed that, despite the dedication, the book’s content was not directed towards
OPO. It was destined for "a wide audience", 108 hence non-actionable. The majority remarked
that the Wilkinson Tort could be triggered where D’s statements were directed to a group (even
a large group such as a theatre audience where D falsely shouts out a warning "fire" 109 ), but not

to the public-at-large (as here). To add further confusion to the mix, Lord Neuberger preferred
that D’s statement should be aimed at C as a "particular individual (or [within a] relatively small
group of individuals)". 110 Hence, the point is unresolved and remains arguable under the Current
Wilkinson Tort. 111
For the purposes of the Revised Tort, it is suggested that D’s statements should be directed to C,
either as an individual or as a member of a small and identifiable group (thereby excluding a large
group of attendees at a theatre or the public-at-large). The key reasons for that suggestion are that:
(1) a narrowly-directed statement is an appropriate quid pro quo for permitting a lesser form of
damage under the Revised Wilkinson Tort and for permitting the "distant victim" scenario; and
(2) it is appropriate that, in an era when statements, threats, and information, can be published
to the world-at-large, or to something very akin to it, via social media platforms and via e-
communications, it is unrealistic to cater for every claimant who may be caught up in the threat,
but which is not directed towards that C either individually or as one of a small group. This reform
suggestion provides an important ring-fence for liability.
False statements and intermediate acts

Under the Revised Wilkinson Tort, it is the statement itself which must cause the injury to C.
This was the case where, say, Mr Downton falsely informed Mrs Wilkinson that her husband was
lying *J.P.I. Law 26 grievously-injured, or work colleagues threatened Mrs Wong with physical
retaliation if she reported colleagues’ absences.
However, making a false statement may not directly bring about serious emotional distress to C.
Rather, by failing to tell the truth, D’s statement may create an opportunity for an intermediate
act to take place, and it is that act which causes C emotional distress. This aligns more with an
omission—in which D, via his statement, has created the opportunity for harm to occur to C via a
third party’s (TP’s) acts. In such a case, the Current Wilkinson Tort has not applied. For example,
in W v Essex CC, 112 the foster parents of boy G were not injured by the misinformation by the
Council’s officer (D) that G (TP) was not known or suspected of sexual abuse. Rather, they were
injured by the consequences of that false information, in that they allowed G to come under their
roof as a foster child, after which he sexually molested all four of their children. A claim under
Wilkinson v Downton was considered to be untenable in that case. 113 It is not being suggested that
the Revised Wilkinson Tort should apply to that scenario either. Omission scenarios, where it is
TP who perpetrates the acts that bring about C’s emotional distress, should not be actionable.
Excusing D’s conduct

Under the Current Wilkinson Tort, D’s statements or conduct must have no justification or
reasonable excuse. The Supreme Court declared, in Rhodes, that this was not a defence, with the
burden of proof resting on D; but rather, the burden of proving that D’s words or conduct were
inexcusable or unjustifiable rested upon C. 114 This interpretation was surprising to this author. It

is suggested that the Rhodes view should be reversed under the Revised Wilkinson Tort for two key
reasons. First, that approach would render it consistent with the PHA 1997 ’s statutory tort which
provides for statutory defences that are akin to "justification or reasonable excuse", 115 and for
which the burden rests on D. 116 Secondly, under the trespassory torts such as assault and battery,
D also bears the burden of proving defences such as consent, lawful justification, or necessity. 117
Hence, the Revised Wilkinson Tort would be doctrinally clearer if D bore the burden of proving
that his statements were made with justification or reasonable excuse.
Reforming the intent element

The intent element underpinning the Current Wilkinson Tort has been a slippery eel—and clearly,
any uncertainty on this point should be categorically removed under the Revised Wilkinson Tort.
Lord Hoffmann’s cautionary statement in Wainwright bears noting—"you have to be very careful
about what you mean by intend". 118
At the outset, what, precisely, does D have to intend? Under the Current Wilkinson Tort, the
Supreme Court affirmed, in Rhodes, that D must have intended either to cause C a recognised
psychiatric injury, or to cause serious (or severe) emotional distress which in fact resulted in
psychiatric injury. 119 The latter option amounted to a recasting of the tort created in Wilkinson v
Downton (as it was the former option that Wright J had endorsed). 120 Academically, this recast
was described as a "broader standard [of intent]" *J.P.I. Law 27 121 and a "middle course", 122
and which reduced the evidential burden upon C. 123 The importance of the point falls away under
the Revised Wilkinson Tort, however, since it will be sufficient if D intended to cause C emotional
distress—and where no recognised psychiatric injury is necessary, either as what D intended, or
as to the outcome for C. It also follows that, if C suffers emotional distress from D’s statements
but the evidence is that if D intended to improve C’s well-being via those statements ("misguided
as it may have been"), then D will not possess the requisite intent, and the Wilkinson Tort will fail,
under both Current 124 and Revised versions. D’s intent must be to do harm.
Intent on a spectrum: the possibilities

Under the Current Wilkinson Tort, there are no less than six types of intent which have been
judicially identified, sometimes with different terminology, and none of which has helped the
clarity of the tort.
Wilful intent on D’s part to harm C has clearly sufficed. It means that D "actually wanted to produce
such harm" 125 or had a "genuine intent" to cause C such harm. 126 Subjectively, D desired that
outcome. That sort of intent was made out in Janvier v Sweeney, 127 where there was "an actual
intention to terrify" C for the purposes of blackmail. 128

However, something lesser has sufficed too. In Wilkinson v Downton itself, Wright J said that Mr
Downton had, by means of his practical joke, committed "an act so plainly calculated to produce
some effect of the kind which was produced, that an intention to produce it ought to be imputed to
[D]". 129 This concept of imputed intent was further defined in Wong to mean that D did not actually
intend the harm, but was taken to have meant to cause C the relevant harm, via a combination of
two matters, objectively assessed, viz. "the likelihood of such harm being suffered as the result of
D’s intentional behaviour, and D’s deliberately engaging in that behaviour". 130 In other words, D’s
words or conduct were so likely to produce the harm C suffered that an intention to cause that harm
could be imputed to D. This type of imputed intention has also been judicially ascribed the phrases
of objective recklessness 131 or an imputed intention by operation of law. 132 It was applied by the
Court of Appeal (before the case proceeded the Supreme Court) in Rhodes, i.e. that Mr Rhodes,
D, did not intend to cause emotional distress to his son OPO, C, by publishing his autobiography,
but the medical evidence was that the graphic accounts of sexual abuse perpetrated upon his father
meant that the son’s emotional distress was the likely consequence of that publication. 133
There has been a "twist" on the "imputed intent by operation of law" test under the Current
Wilkinson Tort, in that some appellate judges have analysed imputed intent as a subjective test,
i.e. whether D knew that C’s harm was likely to result from his statements or conduct. 134 This
may be termed an imputed intent by operation of law, subjectively-assessed. As another variation
on the theme, it has muddied the waters. *J.P.I. Law 28 It has also meant that a thoughtless and
rather stupid D could escape liability; as he did not know the likely result of his words or conduct,
and hence, had no requisite intent. 135
However, the death-knell of any form of imputed intent by operation of law under the Current
Wilkinson Tort was sounded by the Supreme Court in Rhodes, as having "no proper role in the
modern law of tort" 136 (just as it had been abolished in Criminal law five decades ago 137 ). The
Supreme Court did not criticise the Court of Appeal below for having applied the doctrine of
imputed intent by operation of law to find in C’s favour, 138 given that Wong ’s Court of Appeal had
earlier endorsed it; but both the doctrine, and the result in C’s favour, were overturned in Rhodes.
Rather, the Supreme Court majority preferred the concept of imputed intention as a matter of fact
139
for the Current Wilkinson Tort, 140 i.e. even where D may not have had the intention to cause
harm to C and may well have given no thought to its likelihood, the requisite intent could still be
proven by inferring, as a matter of fact, that D intended to cause severe emotional distress to C. In
Mbasogo, the Court of Appeal was of the view that this form of intent was "at least capable of proof
in Wong", 141 given the unpleasant conduct of C’s work colleagues towards her (ultimately, the
Court of Appeal did not need to decide the issue in Wong, given that C did not suffer the requisite
psychiatric injury). Since then, imputed intent to inflict emotional distress on C could be inferred
from the facts in the sexting case of C v WH, i.e. from D’s grooming activities, C’s and D’s age
disparity, and C’s known vulnerability as a pupil given her special educational needs. 142 It was

also inferred as a matter of fact in MXX v A Secondary School, again involving sexual activity
against a pupil, this time perpetrated by a work experience placement teacher, in circumstances
where the claimant MXX had told the perpetrator, via Facebook messaging which preceded the
sexual activity, that she had been self-harming and had other emotional problems, and where it
"must have been obvious" to the perpetrator that his conduct would cause severe emotional distress
to MXX. 143 By contrast, there was no imputed intent on the part of Mr Rhodes to cause his son
emotional distress that could be inferred from the facts. 144
Yet another form of intent was put forward by Lord Hoffmann in Wainwright, viz. where D "acted
without caring whether he caused harm [to C] or not". 145 This is a form of intent based upon
recklessness. In C v D, 146 Field J noted that this type of intent could be useful under the Current
Wilkinson Tort where it was not likely that C’s mental harm would occur, and indeed, it was useful
there. The headmaster, D, did not intend pupil C to suffer psychiatric harm by his pulling down C’s
trousers and staring at his genitals, and nor was the incident likely to cause C harm so as to impute
intention by operation of law. But D had been reckless as to whether he caused such injury to C,
and that was sufficient to prove intent. By contrast, this type of recklessness could not be proven in
Wainwright itself 147 or elsewhere. 148 However, in Rhodes, 149 the Supreme Court unanimously
rejected recklessness (oddly enough, not citing C v D at all), declaring it to be insufficient for the
Current Wilkinson Tort. The term had not been used by Wright J himself, and *J.P.I. Law 29 it
was too slippery a concept to define easily. Post-Rhodes, it has been accepted that recklessness is
insufficient under the Current Wilkinson Tort. 150
An even lesser form of intent was raised, but discounted, in Wong, viz. that the Wilkinson Tort is
committed if there is deliberate conduct by D which will foreseeably lead to alarm or distress to
the claimant. 151 Albeit that this is probably not a form of intent strictly-speaking, it is just another
form of the reasonable foreseeability test. Although applied under Canadian law, 152 it was refuted
by different English Courts of Appeal 153 as being insufficient under the Current Wilkinson Tort,
and nor was it approved by the Supreme Court in Rhodes. Quite the reverse; actual intent, or
inferred intent as a matter of fact, were preferred there.
Hence, a very wide array of mental states has been discussed, or applied, in relation to the Current
Wilkinson Tort, from "actual intent" to what is "foreseeable".
The suggestion for the Revised Wilkinson Tort

If a lesser form of damage is to be permitted under the Revised Wilkinson Tort, then with an "air
of realism", suitable ring-fences must apply to preclude floodgates concerns. True to that aim, it is
suggested that intent should take one of only two forms under the revised tort—that D manifested
either:
i. an actual intention to cause C serious emotional distress, subjectively-assessed; or

ii. an inferred intention to cause C serious emotional distress, objectively assessed, and by
having regard to extrinsic facts such as: C’s age; 154 any antecedent relationship between
C and D; 155 the ease or difficulty with which C is able to ascertain the veracity of D’s
statements; 156 D’s demeanour when making the statements; 157 any economic, physical,
or social vulnerability on C’s part; 158 any direct knowledge by D of C’s characteristics
or propensities that rendered C more vulnerable to emotional distress; 159 the number of
perpetrators making statements directed to C; 160 the consequences for those with a close
tie of love and affection with C as a result of D’s statements; 161 and the frequency of D’s
statements. 162 These are the types of factors, derived from case law under the Current
Wilkinson Tort, from which an intent to cause emotional distress to C could suitably be
inferred as a matter of fact.
The meanings of these two types of intent are clear, and both are capable of application on any
given set of facts. Nothing else should suffice under the Revised Wilkinson Tort. *J.P.I. Law 30
Reforming the "consequence element"
Reforming causation
Under the Current Wilkinson Tort, the causal link between D’s words or conduct and C’s harm
can be proven if D caused, or materially contributed to, that harm. Stricter "but-for" causation—
which requires C to prove that, had D’s words or conduct not occurred, then on the balance of
probabilities, C’s harm would not have occurred 163 —has been duly applied under the Wilkinson
Tort in English law. 164
However, and more controversially, the weaker "material contribution" causal test was explicitly
endorsed, and applied, in C v D. 165 Actually, the approach that damages should be apportioned as
between D’s tortious acts and the innocent causes of C’s damage, because D materially contributed
to C’s damage, was derived from negligence and breach of statutory duty giving rise to physical
injury, by virtue of the Bonnington principle. 166 That causal theorem specifically arose where D’s
breach exposed C to a harmful agent, where C was also exposed to that same agent innocently,
and where D’s breach had a cumulative effect upon the severity of C’s injury. In C v D, and having
duly cited Bonnington, the court then noted that the theorem requires that D’s intentional words
or conduct were a material contribution towards, or "a more than trivial cause" of, C’s mental
harm—and, on that basis, the court should apportion the mental harm which was caused by D’s
tortious conduct, and that which was caused by other sources, "on a common sense basis". 167
The judge accepted that there were many causes that contributed to C’s psychiatric injury, apart

from the voyeuristic conduct of D, the headmaster of C’s school. These included: a strong lack
of trust of authoritarian figures; a lifelong condition of Anti-Social Personality Disorder; C’s
dysfunctional family; the brutal way that C was treated by senior boys at boarding school; his
mother’s indifference when he told her of D’s conduct at the infirmary, which led to the breakdown
of his relationship with his parents because of a sense of betrayal; and his troubled relationship with
his father showing a rejection of paternal authority. 168 It was a long list of potential contributing
causes. Nevertheless, C recovered proportionate damages, on the basis that D’s conduct made a
material contribution to his psychiatric condition. 169
This weaker causal theorem which permits proportionate damages and which was applied in C v
D (and in some later cases too) is perhaps a corollary both of the sympathy which these types of
cases inevitably elicit, and of the undoubted medical dilemma of allocating mental harm to one
particular event on the balance of probabilities. 170 However, query whether that weaker causal
link should not suffice under the Revised Wilkinson Tort, and that a strict but-for test should be
required. In other words, if C’s serious emotional distress would probably have occurred anyway
(on the basis of medical evidence), then no causal link should be established. This position is
potentially arguable for two reasons.
First, the quid pro quo (and ring-fence) for the lower threshold of damage (i.e. emotional distress)
is that there ought to be a strict causal connection of the sort that is usually applicable to actions
on the case, *J.P.I. Law 31 of which negligence is the prime category. A weaker causal theorem,
coupled with a lesser type of damage, opens a potential floodgates of claims which must be guarded
against. Secondly, the Bonnington theorem has not, to date, been applied expansively under the tort
of negligence (quite the contrary 171 ), and it has required "one agent" in play. A similar viewpoint
should arguably be applied under the Revised Wilkinson Tort for doctrinal consistency (and there
was no single agent operative in C v D). Otherwise, fractional damages are being permitted, which
has long been rejected in English Tort law. If Stephen Hotson was unable to recover 25% of the
damages awardable for his necrotic hip-joint on the basis that there was a 25% probability that
medical negligence caused that necrosis, 172 then it is arguably inconsistent that C should recover
a proportion of damages for his mental harm in C v D on the basis of the headmaster’s conduct
when the other possible causes such as C’s innate personal characteristics and difficult family
circumstances induced psychiatric illness in an entirely different way. True it is that claimants with
pre-existing psychological vulnerabilities, or who are subject to other circumstances that impinge
upon their mental health, may thus be precluded if the material contribution test is done away with
—but compromises are necessary, especially where the threshold of injury is reduced to that of
emotional distress falling short of a psychiatric injury. Ultimately, this question as to whether or
not to permit the material contribution to damage test in the context of the Revised Wilkinson Tort
is very finely-balanced.
Reforming remoteness of damage

The remoteness element has two sub-parts, viz. reasonable foreseeability of the relevant damage,
and the normal fortitude rule—and both apply under the Current Wilkinson Tort. The Supreme
Court did not refer to the particular requirements of the "consequence element" in Rhodes (it did
not have to), but, as mentioned previously, the tort has long been treated as an action on the case 173
(and Wright J certainly considered it to be so, stating that "damage is a necessary part of the cause
of action" 174 ), for which causation and remoteness are relevant.
Accordingly, in Wilkinson v Downton, Wright J explicitly and necessarily considered two

matters: (1) whether the effect on Mrs Wilkinson of Mr Downton’s false tale "was, to use the
ordinary phrase, too remote to be regarded in law as a consequence for which the defendant
is answerable" 175 (it was not, and the extent of C’s harm did not matter, as it never does in a
remoteness enquiry); and (2) whether Mrs Wilkinson’s nervous shock was reasonably foreseeable
in a person of normal fortitude. Regard had to be made to "the effect [that] was produced on
a person proved to be in an ordinary state of health and mind", and Mr Downton’s tale would
foreseeably produce mental harm in anyone other than "an exceptionally indifferent person". 176
That this passage endorsed the normal fortitude rule under the Current Wilkinson Tort was
confirmed, dicta, in Page v Smith. 177 As always, it is not necessary for C to be a personal of normal
mental fortitude herself. Mrs Wilkinson was 178 —but that is legally beside the point. Once the
damage is foreseeable in a person of normal fortitude as a result of D’s statements, then D must
take an emotionally fragile C as he finds him, "vulnerabilities and all". But it means that where
the occurrence of mental harm as a result of D’s words is unforeseeable and highly idiosyncratic
in a person of normal fortitude, then that damage is not compensable under the Current Wilkinson
Tort. *J.P.I. Law 32 179
However, the question arises as to whether remoteness should have any role to play under the
Revised Wilkinson Tort. In the author’s view, it should not, for three doctrinal reasons.
First, the author has a lot of sympathy for the views of Lord Woolf CJ in Wainwright, wherein
his Lordship said, of the Wilkinson Tort, that, "I am not sure I would regard it as an action on the
case"; that "[w]hile the tort is not conventional trespass, it is closer to trespass than negligence";
and "[w]e are here concerned with an intentional tort and intended harm. In such a situation, unlike
negligence, problems as to forseeability do not arise". 180 Academically too, the Current Wilkinson
Tort has been viewed as "objectionable conduct closely analogous to trespass". 181 Lord Woolf
suggested that whether or not the Wilkinson Tort was an action on the case "is only of historic
interest". 182 This author agrees. What should matter is the doctrinal clarity of Tort Law—and
weaving an intentional tort together with a test of foreseeability of damage is, and always was,
an uncomfortable fit.
Secondly, doing away with reasonable foreseeability of damage would bring the Revised
Wilkinson Tort into line with trespassory torts such as battery and assault, where there is no such
requirement. It is one of the advantages that the trespassory torts enjoy over the Current Wilkinson

Tort (and negligence), that C "is able to recover for unforeseeable damage". 183 Similarly, under
the statutory tort contained in the PHA 1997, the kind of damage suffered by C as a result of
D’s harassment does not have to be reasonably foreseeable either, where D engages in deliberate
conduct of the kind which D knows will amount to harassment. 184 For all intentional torts (of
which the Revised Wilkinson Tort is one), D should not be able to escape the consequences of his
intent to cause serious emotional distress, no matter how unforeseeable those consequences may
be. 185 Essentially, under the Revised Tort, if D intended (actually, or inferred as a matter of fact) to
cause serious emotional distress to C, then if D could not reasonably foresee all the consequences
which actually occurred to C (say, the whitening of Mrs Wilkinson’s hair as a result of the practical
joke), that should not matter to the question of liability.
Thirdly, the ring-fence of strict but-for causation, tentatively suggested for the Revised Wilkinson
Tort, allays fears of floodgates, should the requirement of reasonable foreseeability of serious
emotional distress in a person of normal fortitude be done away with. Besides, it should not
be supposed that the egg-shell condition of some claimants, i.e. those who have a pre-existing
vulnerability to serious emotional distress, will be irrelevant to the outcome of cases under the
Revised Wilkinson Tort. It may be that a court concludes (on the basis of medical evidence) that C’s
mental harm is attributable, on the balance of probabilities, to a naturally-recurring manifestation
of a pre-existing psychiatric condition, rather than to any statement or threat on D’s part. Causation
would thus fail.
A new defence
Under the Current Wilkinson Tort, D can escape liability if his words or conduct were undertaken
with justification or reasonable excuse. In Rhodes, the publication of Mr Rhodes’ autobiography
was justified, because having "struggled to cope with the consequences of his suffering in the way
that he has struggled, [he] has the right to tell the world about it", and there was an overriding
public interest "in others being *J.P.I. Law 33 able to listen to his life story in all its searing
detail". 186 It has already been suggested 187 that the burden of establishing this defence should
be borne by D.
Apart from that, it is not in the public interest that all instances in which there was an intent on D’s
part to inflict emotional distress on C by means of statements should be "actionable". To apply a
defence of implied consent to the infliction of emotional distress (of the sort that applies in battery
to excuse, say, everyday applications of force upon C’s person such as handshaking or jostling on
cramped public transport, 188 or incidents of horseplay and games 189 ) may seem unrealistic and
artificial. However, appellate judges have hinted at something approaching that in key statements
to date, e.g. that the tort "must not interfere with the give and take of ordinary human discourse
(including unpleasant, heated arguments, whether in domestic, social, business or other contexts,
sometimes involving the trading of insults or threats)", 190 and that "it might not be in the public
interest to allow the law to be set in motion for [every] boorish incident". 191

It is contended herein that there ought to be a "not in the public interest to litigate" defence available
under the Revised Wilkinson Tort. Naturally, drawing the line between statements intended to
inflict emotional distress on C which are actionable and non-actionable may be challenging and
finely-drawn, and will depend upon all the facts and circumstances. However, arriving at such
judgments is frequently part of a court’s task. Modern societal conditions in which hate-filled,
threatening, or demeaning statements can be directed at others via social media platforms and via
e-communications will require close examination under the Revised Wilkinson tort, to ascertain
whether this defence is appropriate. However, it is already evident under the Current Wilkinson
Tort that some scenarios would seem to potentially fit within that defence.
For example, things are said in the workplace which may be emotionally distressing but not
actionable. Managerial criticisms would usually fall within the "justification and lawful excuse"
defence noted above, 192 but other cases also show the unpleasantness and resentment that
colleagues can intentionally exhibit towards each other. Whilst a threat of retaliation against C by
a co-employee would have been actionable in Wong (but for the lack of the threshold harm of a
psychiatric injury), the remainder of the catalogue of co-employees’ words and conduct amounted
to mere "rudeness and unfriendliness". 193 In Wainwright too, Lord Hoffmann remarked that work
colleagues "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 the right way
to deal with it is by litigation". 194 Horseplay incidents are another potential scenario to which the
defence could apply. The practical joke by Mr Downton was on the actionable side of the line,
but in Wainwright, Lord Scott remarked that some of life’s trials and tribulations (citing initiation
ceremonies at, say, schools, university colleges, or military regiments 195 ) could entail humiliation
but the law should not generally compensate for them. The ordinary hurly-burly of everyday life is
another potential scenario (again, Lord Scott cited retail scenarios in which, say, a shop assistant,
bouncer, or barman may be publicly offensive to a customer, causing personal humiliation and
emotional distress, but which would be non-actionable 196 ). Domestic disputes may also be deeply
unpleasant to the participants, *J.P.I. Law 34 but as the dispute between former partners in BVC
v EWF 197 demonstrates, that scenario will rarely be on the actionable side of the tort line either.
Finally, just as with Defamation and Privacy, a tort which is directed at C’s civil remedies arising
from D’s making of statements potentially attracts the ECHR art.10, which enshrines the human
right to freedom of expression. While it was "in the public interest" that Mr Rhodes’ autobiography
be published in Rhodes, Lord Neuberger did not consider that the Current Wilkinson Tort should
be permitted to interfere with "normal, including trenchant, journalism and other writing". 198 His
Lordship, the only Law Lord to address art.10, noted that "the common law should be generally
consistent with the Convention", and pointed out that, under some Strasbourg jurisprudence, some
"personally insulting" statements had infringed art.10, but that the need for restriction upon D’s
freedom of speech "must be established convincingly". 199 The same balancing exercise should
apply under the Revised Wilkinson Tort.

Of course, these defences and the balancing exercise are in addition to the existing procedural
safeguards that preclude abusive, vexatious, or improper litigation. 200 In the aftermath of the
successful sexting case of C v WH, the NSPCC stated that "whilst damages could help discourage
potential abusers, there is a danger that young people could just use this as a way to get
cash by suing one another". 201 However, the prospect of "engineered" or "vexatious" claims is
procedurally manageable, and should never be a reason for negating substantive law reform that
seeks to provide redress to genuine victims of D’s wrongdoing.
Conclusion
The five principal recommendations for reform of the Wilkinson Tort which have been made
throughout this article are contained in the Appendix. The Revised Wilkinson Tort would, it
is suggested, provide far more utility for modern-day life than the Current Wilkinson Tort can
muster. Its allowance for serious emotional distress, rather than a recognised psychiatric injury, is
supportable both legally and medically. A century after Wilkinson v Downton was handed down,
this step was foreshadowed in Hunter v Canary Wharf, and it is time that the suggestion became
a reality. However, if that step is taken, then the revised tort should be suitably ring-fenced by
amendments to the conduct, intent, and causation elements, and by removal of foreseeability of
damage altogether.
In the most recent judicial word on the Current Wilkinson Tort, Williams J remarked that Rhodes
had set fairly tight strictures around the cause of action, and which reflected a wider judicial policy
that "the circumstances in which tortious liability will result from words or conduct which cause
psychiatric injury are limited, and that the parameters have been carefully identified to ensure an
appropriate balance with freedom of expression rights". 202 It is an undeniable objective of the
reforms put forward in this article that such a policy should be modified so that the importance
afforded to freedom of expression should be tempered by the recognition that statements can
cause very serious damage to people—and, in today’s social media era, to young, vulnerable and
impressionable people. Indeed, words can harm to just the same extent that actions can. 203
The practical joke in the Albion pub on 9 April 1896 spawned a line of jurisprudence which persists
to this day. However, by reforming the Wilkinson Tort as suggested, it is hoped that it will fill a
gap in Tort law by enabling the protection of C’s personal integrity in circumstances of intentional
wrongdoing which other torts, such as the PHA 1997, private nuisance, negligence, and assault
and battery, do not currently *J.P.I. Law 35 facilitate. It would serve to compensate those who
have been the subject of statements that D made, intentionally to cause C emotional distress, and
which have no justification or lawful excuse.
But most importantly of all, Wright J’s legacy of seeking to provide a cause of action for those who
are intentionally harmed by another’s words would be preserved and enhanced, by re-fashioning

the tort for modern societal conditions in which one-off threats and statements—written, image-
based and pictorial, and directed towards C via social media platforms, electronic communications,
TikTok and other media—can, undeniably, do C substantial mental harm.
Appendix
A summary of the proposed reforms under the Revised Wilkinson Tort
1. Pre-requisite damage: Proof of "serious emotional distress" is the minimum threshold

injury required, where "pure mental" harm is claimed under the Revised Wilkinson
Tort. Unlike under the Current Wilkinson Tort, that harm can fall short of a recognised
psychiatric injury. Damages may also be recovered for consequential bodily injury,
psychiatric injury, or economic harm (if any). Diagnosis of a recognised psychiatric
injury merely goes to quantum of damages, but not to threshold liability.
2. Directed statements (not conduct): D’s statements which trigger the operation of the
Revised Wilkinson Tort may be written, oral, pictorial, or image-based, and contain
information, threats, requests, or warnings. Unlike the Current Wilkinson Tort, the
Revised Wilkinson Tort does not cover scenarios in which D’s conduct (absent any
statement) causes C harm. Instead, where D intends to cause C physical harm or
psychiatric injury by sole reason of his conduct, then C is left to his compensatory
remedies elsewhere. Under the Revised Wilkinson Tort, D’s statements must be directed
to C, but do not need to be made to C in person. Contrary to the position under the
Current Wilkinson Tort, it is sufficient if C learns of D’s statement via a third party
(TP). The causal link between D’s statement and C’s Harm may be severed by the
time, manner, and circumstances in which TP conveys the statement to C. Under the
Revised Wilkinson Tort, D’s statement must be directed to C, either individually or as
one of a small and defined group; and liability for omissions is explicitly excluded. Any
allegation that D’s statements were made with justifiable excuse or reason should be
treated as a defence, the burden of so establishing resting on D.
3. The requisite intent: D’s intent to inflict harm on C as a consequence of his statements
must be either actual or inferred as a matter of fact. All other forms of intent which have
been recognised and/or applied under the Current Wilkinson Tort should be rejected
under the Revised Wilkinson Tort.
4. Narrowing causation and removing remoteness: As a ring-fence upon potential liability,

causation under the Revised Wilkinson Tort may be recast to require a strict but-for
causal link between D’s statement and C’s harm. Establishing causation via proof that
D’s statement materially contributed to that harm, which applies under the Current
Wilkinson Tort, may not suffice. Further, given that the Revised Wilkinson Tort is an

intentional tort, it is not necessary to establish that C’s harm was reasonably foreseeable
in a person of normal fortitude (i.e. the remoteness of damage enquiry which applies
under the Current Wilkinson Tort does not apply). In the face of an intention to cause C
emotional distress, considerations of foreseeability of C’s harm are legally irrelevant.
5. A new defence: In addition to a defence that D’s statement was justified or made with
reasonable excuse, a new defence is available to D under the Revised Wilkinson Tort,
to reflect the reality that not every unpleasantness, even should it give rise to serious
emotional distress, is worthy of litigation. This proposed defence is that the incident
is "non-actionable in the public interest". A necessary balancing act is also required
under art.10 (freedom of expression), given that English Tort law should be developed
consistently with the ECHR.
Rachael Mulheron
Footnotes
1 Wilkinson v Downton [1897] 2 Q.B. 57 QBD.

2 Apart from the source case, the tort has been proven in: Janvier v Sweeney
[1919] 2 K.B. 316 CA; C v D [2006] EWHC 166 (QB); C v WH [2015] EWHC
2687 (QB); [2016] E.L.R. 1; and MXX v A Secondary School [2022] EWHC 2207
(QB). In a few other cases, urgent injunctive relief has been awarded where C
has apprehended the intentional infliction of physical or psychiatric injury, but
without all elements of the tort being met, e.g. Khorasandjian v Bush [1993]
Q.B. 727 CA at 736; [1993] 3 W.L.R. 476 (nuisance calls caused C "an enormous
weight of stress"); Burnett v George [1992] 1 F.L.R. 525 CA; [1993] 1 F.C.R.
1012 (following a relationship breakdown, C was molested and left with "a
burning resentment"). Quia timet injunctive relief was obtained in both.
3 It was pled, but unsuccessfully, in, e.g. In re Child C [2015] EWFC 79 at [63];
[2017] 1 F.L.R. 82; Sabados v Facebook Ireland [2018] EWHC 2369 (QB) at
[29]; [2019] W.T.L.R. 1361; Countess of Caledon v Commissioner of Police of
the Metropolis [2016] EWHC 2214 (QB) at [36]; BVC v EWF [2019] EWHC
2506 (QB).
4 A point also made in: J. Murphy, "Tort’s Hierarchy of Protected Interests" (2022)
81 C.L.J. 356, 380.
5 To provide a sample of authorities: Canada: Barker v Barker 2020 ONSC 3746 at
[1209] (Ont); Champ’s Mushrooms v Guo 2018 BCSC 650 at [86] (BC). Ireland:

Cully v Commissioner of An Garda Siochana [2022] IECA 18 at [132]; Carey

v Minister for Finance [2010] IEHC 247 at [3.5]. Australia: Grosse v Purvis
[2003] QDC 151 at [452] (Qld); Carter v Walker [2010] VSCA 340 at [170]
(Vic); Magill v Magill (2006) 226 C.L.R. 551 (HCA). Singapore: Nina Duwi
Koriah v Noor Hayah binte Gulam [2019] SGDC 285 at [20]. New Zealand:
Deliu v Hong [2013] NZHC 735 at [91]. Hong Kong: Wong Tai Wai v Hong Kong
SAR Govt [2004] HKCA 261 at [32]. Kenya: MKK v CWN [2016] EKLR 1 at
[36]. Fiji: AG of Fiji v Singh [2015] FJCA 161 at [81]. Samoa: Tutuila v Punitia
[2012] WSSC 107 at [137]. Scotland: Robertson (AP) v Scottish Ministers [2007]
CSOH 186 at [15]; SLC, Defamation (Rep.248, 2017), [2.7]. United States:
Snyder v Phelps 131 S Ct 1207 at 1223 (2018); Bailey v Unocal Corp 700 F
Supp 396, fn.5 (ND Cal, 1997) ("the origin of the intentional infliction tort can be
traced to English common law … things in merry old England were getting out of
hand").
6 per Wainwright v Home Office [2001] EWCA Civ 2081 at [75]; [2002] Q.B.
1334 (the tort "[has] puzzled generations of lawyers"); Ruffley v Saint Anne’s
School [2017] IESC 33 at [54] ("a difficult topic").
7 A v Hoare [2006] EWCA Civ 395 at [136]; [2006] 1 W.L.R. 2320 (an "obscure
tort, whose jurisprudential basis remains unclear"); Rhodes v OPO [2015] UKSC
32 at [51]; [2016] A.C. 219 ("seldom invoked in practice"); Wainwright v Home
Office [2003] UKHL 53 at [36]; [2004] 2 A.C. 406 ("far more often discussed
than applied").
8 W v Essex CC [1999] Fam. 90 CA at [56] (Stuart-Smith LJ); [1998] 3 W.L.R.
534.
9 Various academic commentators have also lamented the tort’s lack of utility,
e.g. R. Bagshaw, "Deceit Within Couples" (2001) 117 L.Q.R. 571, 574; J. Coad,
"Privacy—Art 8. Who Needs It?" (2001) 12 Entertainment L. Rev. 226, 230–
32; J. Adams, "Trespass in a Digital Environment" (2002) 1 Intellectual Property
Quarterly 1, 6–7; A. Johnstone, "Putting the Cart Before the Horse?" (2004)
63 Cambridge L.J. 15, 18; I. Goold and C. Kelly, "Who’s Afraid of Imaginary
Claims? Common Misunderstandings of the Origin of the Action for Pure
Psychiatric Injury in Negligence 1888–1943" (2022) 138 L.Q.R. 58, 72. For an
interesting historical overview of the case, see too: M. Lunney, "Practical Joking
and its Penalty: Wilkinson v Downton in Context" (2002) 10 Tort L. Rev. 168.
10 Rhodes v OPO [2015] UKSC 32; [2015] E.M.L.R. 20.
11 BVC v EWF [2019] EWHC 2506 (QB). The claim was not actually pleaded in
Piepenbrock v London School of Economics and Political Science [2022] EWHC
2421 (KB), but the court considered that the claim would not have reasonable
prospects of success there either.
12 Now called St Paul’s Way, courtesy of a road name change in 1939. As a
historical note, the Albion Pub remained in the Wilkinson family until 1915 (per
the Census entries reproduced at PubWiki, at https://pubwiki.co.uk/LondonPubs/
MileEnd/AlbionStPauls.shtml). This legal landmark in Bow closed as a pub in

1990, and was demolished in 2005 (as noted at https://www.pubology.co.uk/

pubs/2806.html and www.whatpub.com/pubs/ELC/14391/albion-bow).
13 Post Office London Directory—Streets and Commercial (Kelly & Co. Limited:
London, 1895) pp.648 and 1,525, accessed at the Tower Hamlets Local History
Library and Archives.
14 Wilkinson v Downton [1897] 2 Q.B. 57 at 58 and 61, respectively.
15 Wright J explicitly precluded recovery of that head of damage by virtue of the
claim in deceit (at 58).
16 Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 40.
17 Victorian Railway Commissioner v Coultas (1888) 13 App. Cas. 222 (PC, on
appeal from the Vic SC) at 226.
18 Dulieu v White & Sons [1901] 2 K.B. 669 CA.
19 Also the explanation for the tort’s origins in the Court of Appeal below:
Wainwright v Home Office [2001] EWCA Civ 2081 at [41]. However, the
Supreme Court majority suggested that Wright J would have known that he
was not bound to follow Victorian Railway Commissioner v Coultas (1888) 13
App. Cas. 222 (as a Privy Council decision whose authority had already been
doubted by the Court of Appeal just prior to Wilkinson, per Pugh v London,
Brighton and South Coast Railway Co [1896] 2 Q.B. 248 CA), and, hence, could
have allowed recovery in negligence, but that Coultas did not involve a "wilful
wrong", whereas Wilkinson did. This uncertainty about what actually motivated
Wright J’s decision aptly sums up the Tort!
20 per McLoughlin v O’Brian [1983] 1 A.C. 410 HL; [1982] R.T.R. 209.
21 Actually, the scenario of where the immediate victim is not harmed, but where
the secondary victim believes that the immediate victim has been injured (or
killed) and suffers mental harm as a result, involves the concept of the "elevated
primary victim": see R. Mulheron, Principles of Tort Law, 2nd edn (CUP, 2020),
pp.239–41.
22 Wainwright v Home Office [2003] UKHL 53 at [41].
23 Protection from Harassment Act 1997 s.7(3).
24 Noted in Rhodes v OPO [2015] UKSC 32 at [108]. See too: Ruffley v Saint
Anne’s School [2017] IESC 33 at [17] (the Wilkinson Tort may cover "an isolated
but sufficiently grave incident from which intention to cause severe distress may
suffice if psychiatric injury results"). Also claimed in Breslin v McKenna [2009]
NIQB 50, on the basis of the one-off fatal bombing at Omagh Town.
25 The nexus was lacking in, e.g. Andresen v Lovell [2009] EWHC 3397 (QB).
26 As in Mbasogo v Logo Ltd [2006] EWCA Civ 1370; [2007] Q.B. 846 (conducts
and statements as part of a planned coup in Equatorial Guinea were committed
out-of-jurisdiction, and were outside the reach of the Act).
27 Hunter v Canary Wharf Ltd [1997] A.C. 655; [1997] 2 W.L.R. 684 HL. Both
aspects are discussed further in R. Mulheron, Principles of Tort Law, 2nd edn
(CUP, 2020), Ch.16, pp.835–42, 899–906.

28 Gross threatening images sent solely to C are not defamatory, cf. Charleston v
News Group Newspapers Ltd [1995] 2 A.C. 65; [1995] 2 W.L.R. 450 HL.
29 e.g. the son’s in Wainwright v Home Office [2003] UKHL 53; the victims’ in the
Omagh Bombing case [2009] NIQB 50. In MXX v A Secondary School [2022]
EWHC 2207 (QB), the court considered that both assault/battery and the tort in
Wilkinson v Downton [1897] 2 Q.B. 57 could be proven in the alternative, albeit
that the nub of the case was that the defendant school was not vicariously liable
for the perpetrator’s commission of these torts.
30 As in Mbasogo v Logo Ltd [2006] EWCA Civ 1370 (no overt capacity to carry
out threats imminently).
31 Joyce v Sengupta [1993] 1 W.L.R. 337; (1992) 142 N.L.J. 1306 CA; Spring v
Guardian Assurance [1995] 2 A.C. 296; [1994] 3 W.L.R. 354 HL, although the
falsity of the statement in Wilkinson is "in the same spirit" as the tort of injurious
falsehood, noted by J. Murphy, "The Vitality of Injurious Falsehood" (2021) 137
L.Q.R. 658, 669.
32 McLoughlin v O’Brian [1983] 1 A.C. 410 HL.
33 Bici v Ministry of Defence [2004] EWHC 786 (QB) (dicta, as a duty of care was
owed by soldiers to civilians there).
34 Criminal Injuries Compensation Scheme 2012 (as amended) [4], and Annex B.
35 By virtue of the Criminal Justice and Courts Act 2015 s.33(1).
36 See e.g. E. Dunkley and H. Shearing, ‘TikTok abuse ‘is pushing teachers over
the edge’" BBC News, 13 November 2021; N. Bryan, "TikTok school abuse:
Teachers quitting over paedophile slurs" BBC News, 21 November 2021. Given
that many such videos are posted by children, two related questions arise: (1)
whether the children’s parents can be liable for their children’s intentional torts
under ratification or vicarious liability principles; and (2) whether TikTok can
become liable for hosting the statement which infringes the Revised Wilkinson
Tort, similar to the principle in Defamation law whereby search engine providers
and webhosts may transmute from "facilitator" to "publisher" where offending
material is not removed within a reasonable time of notification (per Tamiz v
Google Inc [2013] EWCA Civ 68; [2013] 1 W.L.R. 2151). Space limitations
preclude further detailed consideration of these two issues, but both arguably
merit attention, should the Wilkinson Tort be reformed as suggested.
37 C v WH [2015] EWHC 2687 (QB). C was awarded £25,000 for that particular
tort. For commentary, see J. Wheeler, "Casenote" [2016] J.P.I.L. 28, 30.
38 e.g. C. McGlynn, "Image-based Sexual Abuse" (2017) 37 O.J.L.S. 534, 558; D.
Bunting, "Sexting Damages Case: The Legal Issues" (2016) 166 N.L.J. 6, 6.
39 As proposed by the MOJ, Transforming our Justice System (2016); and Briggs
LJ, Civil Courts Structure Review: Final Report (2016). For developments since
then, see e.g. J. Rosenberg, The Online Court: Will IT Work? (Legal Education
Foundation, 2020). The present Pilot for Online Civil Money Claims for up to
£10,000, as set out in Practice Direction 51R, does not cover personal injury

claims, but the Government’s and Judiciary’s hopes for an online system for all
lower-value civil claims are ambitious.
40 Trespasses are direct acts, whereas the acts under the Wilkinson Tort are treated
as indirect interferences with C’s person, such that the latter "has nothing to do
with trespass to the person": Wainwright v Home Office [2003] UKHL 53 at [47]
(Lord Hoffmann), and in the court below: [2002] Q.B. 1334 CA at [67]–[72].
41 Wilkinson v Downton [1897] 2 Q.B. 57 at 58.
42 Wainwright v Home Office [2003] UKHL 53 at [10], and accepted in Rhodes v
OPO [2015] UKSC 32 at [73] as being common ground in that case.
43 Wilkinson v Downton [1897] 2 Q.B. 57 at 58 ([t]he effect of D’s statement on C
"was a violent shock to her nervous system, producing vomiting and other more
serious and permanent physical consequences at one time threatening her reason,
and entailing weeks of suffering and incapacity", emphasis added).
44 Janvier v Sweeney [1919] 2 K.B. 316 CA (as well as the mental illness of
neurasthenia, C suffered from "shingles and other physical ailments").
45 Sullivan v Boyle [2013] IEHC 104 at [35] (weight loss and disrupted sleep did
not qualify as physical harm).
46 Reilly v Merseyside RHA (1995) 6 Med. L.R. 246 CA (temporary physical
manifestations of vomiting and sweating not sufficient to constitute physical
damage in negligence).
47 As was the case in: MXX v A Secondary School [2022] EWHC 2207 (QB) at
[159].
48 e.g. Khorasandjian v Bush [1993] Q.B. 727 at 736; [1993] 3 W.L.R. 476 CA
(nuisance calls caused C "an enormous weight of stress"); Burnett v George
[1992] 1 F.L.R. 525; [1993] 1 F.C.R. 1012 CA (following a relationship
breakdown, C was molested and left with "a burning resentment"). Quia timet
injunctive relief was obtained in both. Some academic scholars argued that these
cases should herald the wider recognition of a lower threshold of injury under
the Wilkinson Tort, e.g. R. Kidner, "Nuisance and Rights of Property" [1998]
Conveyancer and Property Lawyer 267, 269.
49 e.g. the mother’s claim in Wainwright v Home Office [2003] UKHL 53, [47];
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [12]; (2002) 99(2)
L.S.G. 28; C v D [2006] EWHC 166 (QB) at [87], [89], re the first incident of the
two litigated; Mbasogo v Logo Ltd [2006] EWCA Civ 1370 at [41] (C suffered
"serious anxiety, distress, and disruption to his personal life and work"); Powell
v Boldaz [1998] Lloyd’s Rep. Med. 116; (1997) 39 B.M.L.R. 35 CA at 46–48; A v
Hoare [2006] EWCA Civ 395 at [135].
50 Piepenbrock v London School of Economics [2022] EWHC 2421 (KB) at [172].
51 Burns v Boots UK Ltd [2011] CSOH 182 at [10]; 2011 Rep. L.R. 124.
52 Alseran v Ministry of Defence [2017] EWHC 3289 (QB) at [878].
53 The principal case signifying a departure from a strict adherence to the diagnostic
classifications being Page v Smith [1996] A.C. 155; [1995] 2 W.L.R. 644 HL,

as discussed in R. Mulheron, "Rewriting the Requirement for a ‘Recognized

Psychiatric Injury’ in Negligence Claims" (2012) 32 O.J.L.S. 77, 91.
54 DSM-V (American Diagnostic and Statistical Manual of Mental Disorders,
5th edn (American Psychiatric Association, 2013) and ICD-11 (International
Statistical Classification of Mental and Behavioural Disorders, 11th edn (World
Health Organisation, 2019).
55 See e.g. P. Handford, Mullany and Handford’s Tort Liability for Psychiatric
Damage, 2nd edn (Thomson LBC, 2006), p.712; N. Mullaney, "Civil Actions
for Childhood Abuse in Australia" (1999) 115 L.Q.R. 565, 571; J. Bridgeman
and M. Jones, "Harassing Conduct and Outrageous Acts: A Cause of Action
for Intentionally Inflicted Mental Distress?" (1994) 14 Legal Studies 180;
P. Glazebrook, "Wilkinson v Downton: A Centenary Postscript" (1997) 37
Irish Jurist 46; N. Moreham, "Privacy in the Common Law: A Doctrinal and
Theoretical Analysis" (2005) 121 L.Q.R. 628, 654; C. Hunt, "Wilkinson v
Downton Revisited" (2015) 74 Cambridge L.J. 392, 395; E. Descheemaeker,
"Rationalising Recovery for Emotional Harm in Tort Law" (2018) 134 L.Q.R.
602, 621; and I. Goold and C. Kelly, "Who’s Afraid of Imaginary Claims?
Common Misunderstandings of the Origin of the Action for Pure Psychiatric
Injury in Negligence 1888–1943" (2022) 138 L.Q.R. 58, tracing through the
recognition of mental harm as an injury in and of itself, analogous "to a broken
leg" (at 76), in cases such as Wilkinson v Downton [1897] 2 Q.B. 57.
56 Particularly the Scottish Law Comm, Damages for Psychiatric Injury (Rep
196, 2004) [3.7] ("In the case of intentional wrongdoing, we now think that
the defender should normally be liable for the harm he intended to cause: this
should include distress, anxiety, grief, anger etc, whether or not this amounts
to a medically recognised mental disorder"). As the passage suggests, the
Commission changed its view on this point, between Consultation Paper
(proposal 1(1)) and the Final Report.
57 Hunter v Canary Wharf Ltd [1997] A.C. 655 HL at 707 (emphasis added).
58 His comments were seemingly more reserved, however: Wainwright v Home
Office [2003] UKHL 53 at [46]–[47]; and Lord Scott rejected outright the notion
of compensation for injured feelings arising from intentional acts (at [62]).
59 Rhodes v OPO [2015] UKSC 32 at [64]–[67], quote at [73].
60 Rhodes v OPO [2015] UKSC 32 at [119], and also [116]. As others have noted,
this point was a key differential between Lord Neuberger and the majority, and
hence, it was extraordinary that Lord Wilson agreed with both judgments: A.
Dickinson, "A Ruritanian Ordeal" (2015) 131 L.Q.R. 542, 545.
61 R. Mulheron, "Rewriting the Requirement for a ‘Recognized Psychiatric Injury’
in Negligence Claims" (2012) 32 O.J.L.S. 77, 100–2.
62 EWLC, Liability for Psychiatric Illness (Rep.249, 1998), p.51 fn.79. For similar
sentiments, see Scottish Law Comm, Damages for Psychiatric Injury (Rep.196,
2004), [2.3].

63 Dickie v Flexcon Glenrothes Ltd 2009 G.W.D. 35-602 at [63] (re a claim arising
under the PHA 1997 (Scotland)).
64 Dickie v Flexcon Glenrothes Ltd 2009 G.W.D. 35-602 at [165]. Ultimately, the
claim for mental harm was unsuccessful for other reasons.
65 H. Moller, "The Relevance of ‘Mixed Anxiety and Depression’ as a Diagnostic
Category in Clinical Practice" [2016] European Archives of Psychiatry and
Clinical Neuroscience 725 (footnotes omitted). See too P. Swift, Living with
Anxiety (Mental Health Foundation, 2014), p.12 ("the psychiatric profession first
codified diagnostic criteria for all the different disorders as recently as 1980, [per]
DSM-III").
66 D. Stewart, "Commentary on ‘Psychosocial Origins of Depressive and Anxiety
Disorders’, Part 2" in D. Goldberg (ed), Diagnostic Issues in Depression and
Generalised Anxiety Disorder (American Psychiatric Assoc, 2010), p.352.
67 Available in full-text at https://cdn.website-
editor.net/30f11123991548a0af708722d458e476/files/uploaded/DSM
%2520V.pdf.
68 D. Regier, "The DSM-5: Classification and Criteria Changes" (2013) 12 World
Psychiatry 92, 95. The most recent version of DSM-5 includes text revisions up
to and including March 2022. However, the points made in the accompanying
text relate to the first version of DSM-5 published in 2013, as that is sufficient to
show the constant evolution of medical knowledge and analysis.
69 Coded as 300.02 in DSM-V (2013), 222–26.
70 Coded as 300.02 in DSM-V (2013), 222–23, under the heading, "Diagnostic
features".
71 The author has previously argued that a "grievous non-physical reaction" should
be permitted as the threshold damage for negligence in English law (see R.
Mulheron, "Rewriting the Requirement for a ‘Recognized Psychiatric Injury’
in Negligence Claims" (2012) 32 O.J.L.S. 77, 100–2), and proposed (at 109)
various factors that should govern whether the threshold was met. These factors
were developed with the assistance of discussions with consultant psychiatrist Dr
David Gill.
72 As argued by the author, (R. Mulheron, "Rewriting the Requirement for a
‘Recognized Psychiatric Injury’ in Negligence Claims" (2012) 32 O.J.L.S. 77,
100–2) and cited with approval, re the suggestion of a lower threshold of damage
for negligence, and the factors at 109, in: Saadati v Moorhead [2017] 1 S.C.R.
543 (SCC) at [21], [31], [38].
73 See Hunter v Canary Wharf Ltd [1997] A.C. 655 HL at 707.
74 Rhodes v OPO [2015] UKSC 32 at [63].
75 Alseran v Ministry of Defence [2017] EWHC 3289 (QB) at [878]; [2019] Q.B.
1251.
76 Willers v Joyce [2016] UKSC 43 at [43]; [2018] A.C. 779 (described as an
"injury to health" under those torts).

77 Hussain v CC of West Mercia [2008] EWCA Civ 1205 at [19] (Maurice Kay
LJ), and referenced subsequently (without the need to decide the point) in: N
(Uganda) v Secretary of State for the Home Dept [2014] EWHC 3304 (QB) at
[56]; Kimathi v Foreign and Commonwealth Office [2018] EWHC 1305 (QB) at
[29].
78 per PHA 1997 s.7(2); and see too, Majrowski v Guy’s and St Thomas’s NHS
Trust [2005] EWCA Civ 251 at [7]; [2005] Q.B. 848 (the Act "goes further than
the common law in providing for damages for anxiety falling short of injury to
health").
79 e.g. Hunter v Canary Wharf Ltd [1997] A.C. 655 HL at 707; Wong v Parkside
Health NHS Trust [2001] EWCA Civ 1721 at [29]–[30]; Austen v University of
Wolverhampton [2005] EWHC 1635 (QB) at [7].
80 Mbasogo v Logo Ltd [2006] EWCA Civ 1370 at [97], citing: the Sex
Discrimination Act 1975, the Race Relations Act 1976, and the Disability
Discrimination Act 1995. See too P. Handford, Mullany and Handford’s Tort
Liability for Psychiatric Damage, 2nd edn (Thomson LBC, 2006), pp.714–15.
81 Criminal Injuries Compensation Scheme 2012 (as amended), pp.46–47 (per the
Tariff table).
82 See the section on Reforming the intent element below.
84 AD v Bury MBC [2006] EWCA Civ 1 at [78]; [2006] 1 W.L.R. 917.
85 See text accompanying fn.71 above.
86 Rhodes v OPO [2015] UKSC 32 at [73]. The other elements in this article, the
"intent" and the "consequence" elements, are also derived from the majority’s
description in Rhodes.
87 Janvier v Sweeney [1919] 2 K.B. 316 CA (Private detective Sweeney knew that
his statements that Mademoiselle Janvier was assisting a German spy and was in
danger of arrest were false). Conversely, where D believes the statements to C
to be true, the Wilkinson Tort cannot apply: Sullivan v Boylan [2013] IEHC 104
(debt collector, D, believed the alleged debtor, C, to owe money to a builder).
88 As in Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 (D threatened
to have an ex-convict retaliate against C).
89 Gloster v Chief Constable of Greater Manchester [2000] P.I.Q.R. P114 CA;
[2000] Po. L.R. 61 (mentioned as an example)
90 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 (the tort failed, as
there was no recognised psychiatric injury suffered).
91 Sabados v Facebook Ireland [2018] EWHC 2369 (QB) at [29] (the tort being
"conceivable").
92 A dicta example in Rhodes v OPO [2015] UKSC 32 at [85].
93 As in Wainwright v Home Office [2004] 2 A.C. 406 HL.
94 As in C v D [2006] EWHC 166 (QB).

96 M Arden, "Privacy and Third Parties to Criminal Proceedings" (2017) 76

Cambridge L.J. 469, 470. cf. though, the abuse of dead bodies or non-consensual
dealing with separated bodily parts whereby "such claims usually involve
acts rather than statements": R. Nwabueze, ‘Regulation of Bodily Parts:
Understanding Bodily Parts as a Duplex" (2019) 15 Intl. J. of the Law in Context
515, 523.
97 A v Leeds Teaching Hospital NHS Trust [2004] EWHC 644 (QB); [2005] Q.B.
506 ("a deliberate and wilful misstatement of fact"); Khorasandjian v Bush
[1993] Q.B. 727 CA at 735 ("false words or verbal threats"); Dulieu v White &
Sons [1901] 2 K.B. 669 at 683 ("the only physical action of the wrong-doer [in
Wilkinson] was that of speech").
98 As in MXX v A Secondary School [2022] EWHC 2207 (QB). The difficulty for
MXX in this case is that, whilst the perpetrator may have committed the tort,
the relevant statements did not occur during the perpetrator’s work experience
placement with the defendant school, and hence, the school was not vicariously
liable for the placement teacher’s tort.
99 As in C v WH [2015] EWHC 2687 (QB) at [89]; [2016] E.L.R. 1.
100 e.g. in Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, C’s work
colleagues threatened that an ex-convict would harm her if she reported her work
colleagues’ absences from work; in MXX v A Secondary School [2022] EWHC
2207 (QB) and in C v WH [2015] EWHC 2687 (QB), the respective defendants’
grooming conduct was accompanied by text messages; and in the hostage-taking
scenario posed as a hypothetical scenario in Rhodes v OPO [2015] UKSC 32, a
threat conveyed to family members was also envisaged.
101 Discussed in R. Mulheron, Principles of Tort Law, 2nd edn (CUP, 2020), pp.692–
94.
102 See Wainwright v Home Office [2003] UKHL 53 at [51] (Lord Hoffmann), noting
that Buxton LJ, in the court below (at [62]), thought that C would have a "strong
case" under art.8.
103 As Lord Neuberger put it in Rhodes v OPO [2015] UKSC 32 at [102].
104 See Austen v University of Wolverhampton [2005] EWHC 1635 (QB) at [10] (it
was assumed, by reference to Canadian authority, that "it is no bar to recovery
that the statement was not made by D directly to C’).
105 Noted in R. Mulheron, Principles of Tort Law, 2nd edn (CUP, 2020), Ch.WD
(online) pp.470–71, citing several authorities from Australia, New Zealand and
Canada.
106 Carter v Walker [2010] VSCA 340 at [264], [268].
107 Breslin v McKenna [2009] NIQB 50 at [266]; [2007] N.I. 201.
109 Rhodes v OPO [2015] UKSC 32 at [74] (in that scenario, "the relevant words or
conduct were directed … [to] a group. A person who shouts ‘fire’ in a cinema,
when there is no fire, is addressing himself to the audience").

111 Ironically, whether there may be a course of harassing conduct which is

targeted at an individual X, but where C, who is associated with X, can sue for
harassment, has been controversial under the PHA 1997 too, as discussed in R.
Mulheron, Principles of Tort Law, 2nd edn (CUP, 2020), Ch.HA (online), pp.265–
66, by reference to e.g. Thomas v News Group Newspapers Ltd [2001] EWCA
Civ 1233 at [30]; [2002] E.M.L.R. 4; and Levi v Bates [2015] EWCA Civ 206 at
[26]; [2016] Q.B. 91.
112 W v Essex CC [1998] EWCA Civ 614 at [56] affirmed on appeal.
113 As noted in W v Essex CC [1999] Fam. 90 CA at [56]; [1998] 3 W.L.R. 534, and
this particular claim was not appealed further.
115 See PHA 1997 s.1(3)(c) ("in the particular circumstances, the pursuit of the
course of conduct was reasonable").
116 KD v Chief Constable of Hampshire [2005] EWHC 2550 (QB) at [146]; [2005]
Po. L.R. 253; Levi v Bates [2009] EWHC 1495 (QB) at [8].
117 R. (on the application of Lumba) v Secretary of State for the Home Department
[2011] UKSC 12 at [65]; [2012] 1 A.C. 245.
118 Wainwright v Home Office [2003] UKHL 53 at [44]–[45].
120 SLC, Defamation (Rep 248, 2017), [2.7].
121 C. Hunt, "Wilkinson v Downton Revisited" (2015) 74 Cambridge L.J. 392, 394.
122 A. Dickinson, "A Ruritanian Ordeal" (2015) 131 L.Q.R. 542, 544.
123 As earlier scholarly commentary foreshadowed, if that change to the tort was
made: J. Coad, "Privacy—Art 8. Who Needs It?" (2001) 12 Entertainment L.
Rev. 226, 231.
124 Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB) at [58]; (2019)
166 B.M.L.R. 76.
125 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [10] (Hale LJ).
126 Wainwright v Home Office [2003] UKHL 53 at [46]–[47] (Lord Hoffmann).
127 Janvier v Sweeney [1919] 2 K.B. 316 CA.
128 Affirmed in Wainwright v Home Office [2001] EWCA Civ 2081 at [44] (Lord
Woolf CJ).
129 Wilkinson v Downton [1897] 2 Q.B. 57 at 58–59.
130 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [12]. This form of
intent, whilst endorsed, was not established in Wong.
131 Wainwright v Home Office [2001] EWCA Civ 2081 at [79] (Buxton LJ), and cited
in: Rhodes v OPO [2015] UKSC 32 at [60].
132 Rhodes v OPO [2015] UKSC 32 at [45], [81] (D "is to be taken as a matter of law
to intend the natural and probable consequences of his acts").
133 Noted in Rhodes v OPO [2015] UKSC 32 at [24].
134 Khoransandjian v Bush [1993] Q.B. 727 CA at 735; (1993) 25 H.L.R. 392,
cited in Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [12], and
Bowler v Walker and Northampton HA [1996] P.I.Q.R. P22 CA at P31. See too

Wainwright v Home Office [2001] EWCA Civ 2081 at [78]–[79] (Buxton LJ),
citing the law report editor’s headnote in Janvier v Sweeney [1919] 2 K.B. 316
CA.
135 Also noted by N. Moreham, "Beyond Information: Physical Privacy in English
Law" (2014) 73 Cambridge L.J. 350, 363.
137 per DPP v Smith [1961] A.C. 290 HL; [1960] 3 W.L.R. 546 overruled by the
Criminal Justice Act 1967 s.8.
140 Rhodes v OPO [2015] UKSC 32 at [85] and [86].
141 Mbasogo v Logo Ltd [2006] EWCA Civ 1370 at [95].
142 C v WH [2015] EWHC 2687 (QB) at [89].
143 MXX v A Secondary School [2022] EWHC 2207 (QB) at [157]–[158].
144 Rhodes v OPO [2015] UKSC 32 at [89]. Nor was any such intent capable of
proof in: Piepenbrock v London School of Economics [2022] EWHC 2421 (KB)
at [170], describing the notion as "fanciful" on the facts of that case.
146 C v D [2006] EWHC 166 (QB) at [99]–[100], citing remarks in Wainwright v
Home Office [2001] EWCA Civ 2081 (Lord Woolf CJ).
147 Rather, the two prison officers who conducted the strip search carried it out in
a matter-of-fact way, chatting to each other about unrelated matters, with no
intention to humiliate C: Reese v Darlington Memorial Hospital NHS Trust
[2003] UKHL 52 at [50]; [2004] 1 A.C. 309.
148 Bici v Ministry of Defence [2004] EWHC 786 (QB).
149 Rhodes v OPO [2015] UKSC 32 at [87] (majority); [113] (Lord Neuberger,
minority).
150 Brayshaw v Apsley Surgery [2018] EWHC 3286 (QB) at [56]; BVC v EWF
[2019] EWHC 2506 (QB) at [208].
151 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [11], citing J.
Fleming, The Law of Torts, 9th edn (LBC, 1998), p.38.
152 Rhodes v OPO [2015] UKSC 32 at [70]–[71] citing Rahemtulla v Vanfed Credit
Union [1984] 3 W.W.R. 296 (BCSC).
153 Powell v Boldaz [1998] Lloyd’s Rep. Med. 116 CA; (1997) 39 B.M.L.R. 35; and
Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [11].
154 Re the young pupils in C v D [2006] EWHC 166 (QB) and C v WH [2015]
EWHC 2687 (QB).
155 Re the unpleasant nature of the debt-collector and debtor relationship in Sullivan
v Boyle [2013] IEHC 104; the relationship of teacher-pupil in C v WH [2015]
EWHC 2687 (QB); cf. the distant relationship which the son had with his father in
Rhodes v OPO [2015] UKSC 32.
156 Re Mrs Wilkinson’s geographic distance from her husband and the physical
difficulty of reaching him.

157 Re the matter-of-fact, rather than vindictive, strip search conducted by the prison
officers in Wainwright v Home Office [2003] UKHL 53.
158 Re the young pupil in C v D [2006] EWHC 166 (QB); the potential economic
detriment to Mrs Wilkinson should her husband be unable to continue to act as
publican in Wilkinson; the wartime environment for alleged spies in Janvier v
Sweeney [1919] 2 K.B. 316.
159 Re the characteristics of the pupil in C v WH [2015] EWHC 2687 (QB) who
attended a special educational needs school.
160 Re the three employees who acted in concert against C in Wong v Parkside
Health NHS Trust [2001] EWCA Civ 1721.
161 The hostage example in Rhodes v OPO [2015] UKSC 32; and the consequences
for the President’s family in Mbasogo v Logo Ltd [2006] EWCA Civ 1370.
162 However, to reiterate, a one-off incident is sufficient under the Revised (and
Current) Wilkinson Tort.
163 per Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1
Q.B. 428 QBD; [1968] 2 W.L.R. 422.
164 e.g. Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 (C conceded
that the actionable threat had not caused her emotional distress, but that it was
attributable to earlier incidents of rudeness and unfriendliness). cf. in MXX v A
Secondary School [2022] EWHC 2207 (QB) at [163], the court was prepared
to accept, on the basis of the medical evidence, that the perpetrator’s grooming
and sexual abuse of the claimant caused the claimant to suffer psychiatric harm.
Similarly: C v WH [2015] EWHC 2687 (QB) at [89].
165 C v D [2006] EWHC 166 (QB).
166 per Bonnington Castings Ltd v Wardlaw [1956] A.C. 613; [1956] 2 W.L.R. 707
HL (re silica dust to which C was exposed, innocently and negligently). Also
applied, in negligence, in Bailey v Ministry of Defence [2008] EWCA Civ 883;
[2009] 1 W.L.R. 1052 (re a weakened post-operative state, caused by negligence
and innocent pancreatitis).
167 C v D [2006] EWHC 166 (QB) at [98], [102].
168 C v D [2006] EWHC 166 (QB) at [101], [104].
169 The quantum for each of the heads of damage was qualified by the statement,
"the need to apportion because the actionable abuse is but one of the causes of the
psychiatric injury": C v D [2006] EWHC 166 (QB) at [105], [107], [110].
170 See e.g. L. Khoury, Uncertain Causation in Medical Liability (Hart Publishing,
2006), pp.46–55. For other examples of the proportionate damages approach,
see: C v WH [2015] EWHC 2687 (QB) at [86] (30% of C’s psychiatric injury
attributable to D’s abuse); and FGX v Gaunt [2023] EWHC 419 (KB), which was
a judgment on assessment of damages only, but where C v WH was cited with
approval (at [38], [56]).
171 The Bonnington principle failed in both B v Ministry of Defence (the Atomic
Veterans case) [2012] UKSC 9; [2013] 1 A.C. 78 and Petroleum Co of Trinidad

and Tobago Ltd v Ryan [2017] UKPC 30, further discussed in R. Mulheron,
Principles of Tort Law, 2nd edn (CUP, 2020), pp.439–43.
172 Hotson v East Berkshire HA [1987] A.C. 750 HL at 793; [1987] 3 W.L.R. 232,
and discussed at 409–13.
173 Wainwright v Home Office [2003] UKHL 53 at [47] (Lord Hoffmann), noted at n
40 above.
177 Page v Smith [1996] A.C. 155 HL at 177; [1995] R.T.R. 210 (where negligence
was at issue, and not the Wilkinson Tort).
178 Wilkinson v Downton [1897] 2 Q.B. 57 at 58 (the consequences of the practical
joke on Mrs Wilkinson "were not in any way the result of previous ill-health or
weakness of constitution; nor was there any evidence of predisposition to nervous
shock or any other idiosyncrasy").
179 As in Powell v Boldaz [1997] EWCA Civ 2002 ("[counsel] submits that
psychiatric injury to the [parents] was reasonably foreseeable … [but] I do not
accept it"; the Wilkinson Tort failed).
180 Wainwright v Home Office [2001] EWCA Civ 2081, quotes at [48], [49], and
[50], respectively.
181 J. Coad, "Privacy—Art 8. Who Needs It?" (2001) 12 Entertainment L. Rev. 226,
16; J. Adams, "Trespass in a Digital Environment" (2002) 1 Intellectual Property
Quarterly 1, 7, citing J. Ziegler, Ringwood’s Outline of the Law of Torts, 5th edn
(Sweet and Maxwell, 1924), p.169; C. Brennan, "Wilkinson v Downton as a
Novel Basis for an Interim Injunction against Publication" (2015) 31 Professional
Negligence 33, 36.
182 Wainwright v Home Office [2001] EWCA Civ 2081 at [48].
183 Wainwright v Home Office [2001] EWCA Civ 2081 at [71] (Buxton LJ).
184 Laing Ltd v Essa [2004] EWCA Civ 2 at [31]; [2004] I.C.R. 746 (the 1997
Act "demonstrate[s] that it is possible to create a statutory tort which does not
incorporate the reasonable foreseeability test"); Jones v Ruth [2011] EWCA Civ
804 at [25], [32]–[33]; [2012] 1 W.L.R. 1495 (trial judge ruled out some of
C’s damage as being unforeseeable, but reinstated on appeal when the test of
reasonable foreseeability was rejected under PHA 1997).
185 Noted in, e.g. Breslin v McKenna [2009] NIQB 50 at [272] (re assault and
battery); and Carey v Minister for Finance [2010] IEHC 247 at [4.57] (re
intentional torts generally).
187 See Reforming the "conduct element": Excusing D’s conduct above.
188 Wilson v Pringle [1987] Q.B. 237 CA at 243; [1986] 3 W.L.R. 1 (unless that
consent is contrary to the public interest: R. v Coney (1882) 8 Q.B.D. 534; R. v
Donovan [1934] 2 K.B. 498; (1936) 25 Cr. App. R. 1).
189 Blake v Galloway [2004] EWCA Civ 814 at [21]; [2004] 1 W.L.R. 2844.

190 Rhodes v OPO [2015] UKSC 32 at [111] (Lord Neuberger).

191 Wainwright v Home Office [2003] UKHL 53 at [46] (Lord Hoffmann).
192 As it is also defended under the PHA 1997 s.1(3)(c): Majrowski v Guy’s and
St Thomas’s NHS Trust [2005] EWCA Civ 251 at [82]; [2005] Q.B. 848, and
affirmed in [2006] UKHL 34.
193 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721 at [17] (noting the
"threat is different").
194 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721.
196 Wainwright v Home Office [2003] UKHL 53.
197 BVC v EWF [2019] EWHC 2506 (QB) at [211].
199 Rhodes v OPO [2015] UKSC 32 at [120], citing several authorities. See too,
European Court of Human Rights Registry, Guide on Article 10 of the ECHR (30
April 2021), pp.96, 103.
200 Pursuant to the powers vested in the court under Civil Procedure Rules 3.1 and
3.4.
201 Quoted in N. Titheradge, "Damages Awarded in ‘Sexting Case’ for the First
Time" BBC News, 30 November 2015.
202 Piepenbrock v London School of Economics [2022] EWHC 2421 (KB) at [156].
203 A point also made earlier in C. Stirling, "A Modern Take" (2015) 165 N.L.J.
7667, 13.

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Modernising the tort of Wilkinson v Downton, J.P.I.

Law 2023, 1, 13-35

For educational use only

Then … and now

Reforming the threshold harm

Reforming the "conduct element"

Reforming the intent element

Reforming the "consequence element"

Journal of Personal Injury Law

J.P.I. Law 2023, 1, 13-35

Other related subjects

© 2023 Thomson Reuters. 1

Causation; Intentional torts; Personal injury; Psychiatric harm; Tortious liability

*J.P.I. Law 13 Abstract

© 2023 Thomson Reuters. 2

Then … and now

© 2023 Thomson Reuters. 3

© 2023 Thomson Reuters. 4

Commissioner v Coultas, 17 psychiatric injury was held not to be compensable in negligence,

© 2023 Thomson Reuters. 5

Reforming the threshold harm

© 2023 Thomson Reuters. 6

© 2023 Thomson Reuters. 7

His Lordship also reserved opinion, in Wainwright, as to whether compensation should be

The medical perspective

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© 2023 Thomson Reuters. 9

The legal perspective

© 2023 Thomson Reuters. 10

Reforming the "conduct element"

Conduct versus statements

© 2023 Thomson Reuters. 11

© 2023 Thomson Reuters. 12

© 2023 Thomson Reuters. 13

False statements and intermediate acts

Excusing D’s conduct

© 2023 Thomson Reuters. 14

Reforming the intent element

Intent on a spectrum: the possibilities

© 2023 Thomson Reuters. 15

© 2023 Thomson Reuters. 16

The suggestion for the Revised Wilkinson Tort

© 2023 Thomson Reuters. 17

Reforming the "consequence element"

© 2023 Thomson Reuters. 18

Reforming remoteness of damage

© 2023 Thomson Reuters. 19

Accordingly, in Wilkinson v Downton, Wright J explicitly and necessarily considered two

© 2023 Thomson Reuters. 20

© 2023 Thomson Reuters. 21

© 2023 Thomson Reuters. 22

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1. Pre-requisite damage: Proof of "serious emotional distress" is the minimum threshold

4. Narrowing causation and removing remoteness: As a ring-fence upon potential liability,

© 2023 Thomson Reuters. 24

1 Wilkinson v Downton [1897] 2 Q.B. 57 QBD.

© 2023 Thomson Reuters. 25

Cully v Commissioner of An Garda Siochana [2022] IECA 18 at [132]; Carey

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1990, and was demolished in 2005 (as noted at https://www.pubology.co.uk/

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© 2023 Thomson Reuters. 28

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as discussed in R. Mulheron, "Rewriting the Requirement for a ‘Recognized