1. WHY IS THE AUTHOR WRITING THIS ARTICLE?

The author appears to be writing this article to propose a reform of the tort
established in Wilkinson v Downton, a case from 1896. The tort, as it stands,
involves intentional infliction of physical or emotional distress caused by the
defendant's statements and conduct. The author argues that the current tort,
as articulated by Wright J in 1897, has suffered from limited utility and
proposes a Revised Wilkinson Tort. The revised version aims to address gaps
in the current tort and modernize it to provide compensation for intentional
statements that cause serious emotional distress to the claimant.

The author suggests that the tort has faced challenges and limitations over the
years, with rare successful applications in English law. The proposed reform
aims to make the tort more relevant to contemporary societal conditions,
especially in the context of social media, electronic communications, and
online platforms.

The author discusses the need for reform by highlighting three main reasons:
the inadequacy of other torts in covering the field, the limitations of criminal
law in providing redress, and the changing dynamics of communication in the
modern world, particularly through social media. The proposed Revised
Wilkinson Tort seeks to fill a perceived gap in the law and provide a remedy
for intentional statements causing serious emotional distress.

2. DIFFERENCE BETWEEN CURRENT AND REVISED WILKINSON

TORT?
The article suggests that reform is needed for the Wilkinson Tort, transforming
it into the Revised Wilkinson Tort. The proposed cause of action is defined as
the intentional infliction upon the claimant of physical or serious emotional
distress caused by the defendant's statements directed towards C. This
reform aims to fill a gap in tort law, providing redress for intentional statements
causing harm, an aspect not adequately addressed by existing torts.

The Current Wilkinson Tort, involves intentional infliction of physical injury or

emotional distress leading to a recognized psychiatric injury, caused by the
defendant's statements and conduct. However, the text argues that the
Current Wilkinson Tort has suffered from limited utility and proposes reforms
to make it more relevant and effective.

The text suggests that the Revised Wilkinson Tort should require proof of
serious emotional distress, which could be a lower threshold than the
recognized psychiatric injury demanded by the Current Wilkinson Tort. From a
medical perspective, the distinction between emotional distress and
recognized psychiatric injury is not clear-cut therefore "serious emotional
distress" should be a sufficient threshold.
The article also proposes reforms in the conduct element of the tort,
suggesting limitations to focus primarily on D's statements intended to inflict
emotional distress on C. The proposed reform aims to distinguish between
distressing statements and intentional conduct, aligning the tort more closely
with its original intent.

3. WHY IS THERE A NEED TO REFORMULATE THIS TORT?

The author advocates for the reformulation of the Wilkinson Tort, contending
that the current state of the tort has resulted in limited utility, with only a few
successful cases in over 120 years. This limited success prompts the author
to argue for the need to revisit and reform the tort to make it more effective in
providing remedies for intentional harm caused by statements.

A significant factor is the gap in Tort law that the Revised Wilkinson Tort could
fill. The proposed reform aims to compensate claimants who have
experienced intentional harm through statements, a type of harm not
adequately addressed by existing torts. The author argues that the revised tort
could offer a more fitting remedy for situations where the intent is to cause
serious emotional distress.

Secondly, the modern societal conditions call for a reform as per the author. It
is essential to increase the scope of application of this particular tort to
encompass modern communication methods, including social media and
electronic communications. The author argues that statements and content
disseminated with the intent to cause emotional distress can have far-reaching
and damaging effects in these contexts, thus a more relevant and responsive
formulation of the Wilkinson Tort is required.

A reform is also needed to safeguard personal integrity. The author argues

that the proposed changes aim to safeguard individuals from intentional
wrongdoing, especially in cases where existing torts may fall short in providing
redress for harm caused by statements with the intention to distress. The
author notes that two of the four successful cases under the Current Wilkinson
Tort occurred in the last decade, both involving sexual impropriety, suggesting
a potential role for the tort in addressing vulnerabilities and power imbalances
in certain sectors of society.

4. WHAT REFORMS HAS THE AUTHOR SUGGESTED IN THRESHOLD

OF HARM ELEMENT?

The author proposes significant reforms to the threshold harm element of the
Wilkinson Tort, seeking to redefine the type of harm necessary for the cause
of action. In the Current Wilkinson Tort, actionable damage requires proof of a
recognized psychiatric injury as an essential component. However, the author
advocates against this requirement in the Revised Wilkinson Tort. The
proposed reform suggests that "serious emotional distress" should be
considered the minimum threshold injury required for the cause of action.

Under the author's proposed changes, serious emotional distress would be

recognized as a lesser form of mental harm compared to the current
insistence on a recognized psychiatric injury. This adjustment is seen as a
means of making the Wilkinson Tort more accessible, allowing claimants to
establish liability even without meeting the stringent criteria for recognized
psychiatric injury.

The suggested reform recognizes a broader range of emotional harm as

grounds for legal action such as distress, anxiety, misery, anger, fright,
humiliation.

The author refers to law reform’s support for the idea that a lesser form of
mental harm should be actionable under the Wilkinson Tort. The author also
stresses upon the need to consider the proposed reform from both a legal and
a medical standpoint. The current insistence on a recognized psychiatric injury
is challenged on both fronts.

5. WHAT WERE THE JUSTIFICATIONS FOR LOW THRESHOLD?

Four justifications are presented for a lower damage threshold under the
Revised Wilkinson Tort.

Firstly, since the tort is intentional and requires deliberate statements by the
defendant, the argument for allowing recovery for something less than a
recognized psychiatric injury is stronger when intent is involved. Lord
Hoffmann's point in Hunter v Canary Wharf is referenced, emphasizing the
different policy considerations for intentional torts. The stricter the intent
element, the more compelling the argument for a lower threshold of injury.

Secondly, the author argues that many intentional or malicious torts, such as
battery, assault, false imprisonment, malicious prosecution, and civil
proceedings since 2016, permit recovery for a lesser form of harm, i.e.,
emotional distress. This contrasts with the discomfort felt in placing the
Current Wilkinson Tort alongside these common law cousins.

Thirdly, the author notes that various statutory torts allow claims for anxiety or
distress without requiring physical injury. The Protection from Harassment Act
1997 (PHA 1997) is cited as an example, stating that references to harassing
a person include causing distress. This statutory precedent, along with other
intentional discriminatory practices, supports the argument for a lower damage
threshold.
The final justification draws upon Lord Neuberger's judgment in Rhodes,
suggesting that if the tort only requires intent to cause significant distress, it is
inconsistent to mandate a higher threshold, such as a recognized psychiatric
injury. Consistency demands alignment between the elements of threshold
damage and intent.

The author clarifies that the proposed reforms do not intend to compensate for
every trivial or transient emotional distress caused by D's intent. A de minimis
threshold for mental injury claims in English Tort law is acknowledged. The
focus is on establishing a threshold of "serious emotional distress," and
suggestions for assessing this threshold have been provided earlier in the
article.

6. WHAT REFORMS HAS THE AUTHOR SUGGESTED FOR

CONDUCT?
The author suggests reforms to the conduct element of the Wilkinson Tort,
proposing a focus on D's statements intended to inflict emotional distress on
C. The Current Wilkinson Tort has expanded to cover three types of conduct
triggering the tort: false information conveyed to C, verbal threats causing
harm, and intentional acts intending to harm C. The author acknowledges
judicial disquiet about this expansion, especially concerning intentional
conduct without statements.

The proposal for the Revised Wilkinson Tort recommends limiting it to D's
statements rather than intentional conduct alone. The meaning of
"statements" is broadly construed to include conveying false information,
threats, requests, warnings, and various forms of communication like images
and videos. This broad interpretation ensures that a wide range of intentional
actions causing emotional distress fall within the scope of the Revised
Wilkinson Tort.

However, the author raises a concern about one-off incidents of conduct by D

that involve no statements directed to C. The author argues that cases of
intentional conduct without statements are rare under the Current Wilkinson
Tort, and compensatory remedies for physical or psychiatric injury resulting
from such conduct are available through other legal avenues like assault,
battery, negligence, or the Criminal Injuries Compensation Fund. The author
emphasizes that there is no significant gap that necessitates the Revised
Wilkinson Tort to cover conduct without statements.