TORT ARTICLE QUESTIONS + ANSWERS

Question 1: Describe the proposed reforms to the Wilkinson Tort as

outlined in the article.
Brief Answer: The proposed reforms aim to modernize the tort by
focusing on intentional infliction of physical injury or serious emotional
distress caused by the defendant's statements directed towards the
claimant. This revised version seeks to address the inadequacies of the
current tort, particularly in cases involving intentional harm caused by
the defendant's statements, especially in the context of social media and
electronic communications

Question 2: What were the circumstances surrounding the original

Wilkinson v Downton case, and what was the outcome?
Brief Answer: The original case occurred in 1896 at the Albion Pub in
London, where Mr. Downton played a practical joke on Mrs. Wilkinson
by falsely informing her that her husband had been seriously injured in
an accident. Despite Mrs. Wilkinson's husband returning safely later that
evening, Mrs. Wilkinson suffered severe emotional distress, leading to
physical symptoms and requiring extensive medical treatment. The court
permitted recovery of damages for the harm caused by the incident,
establishing a new cause of action for the intentional infliction of
emotional distress.

Question 3: Explain the reasons presented in the article for the need to
reform the Wilkinson Tort.
Brief Answer: The article presents three main reasons for the need to
reform the Wilkinson Tort. Firstly, it argues that existing torts do not
adequately cover situations where individuals suffer intentional
emotional distress caused by specific statements. Secondly, it highlights
the limitations of criminal law in providing redress for such harms.
Finally, it emphasizes the changing landscape of communication,
particularly with the rise of social media, which necessitates updating
legal frameworks to address modern forms of harm.

Question 4: How does the proposed reform of the Wilkinson Tort aim to
address the shortcomings of the current tort?
Brief Answer: The proposed reform aims to address the shortcomings of
the current tort by focusing explicitly on intentional infliction of
emotional distress caused by the defendant's statements. This revision
seeks to provide a remedy for harms that are not adequately addressed
under existing torts and to adapt to the realities of modern
communication, particularly the prevalence of harmful statements
disseminated through social media platforms.

Question 5: Discuss the significance of the Wilkinson Tort in the context

of modern societal conditions, as argued in the article.
Brief Answer: The article argues that the Wilkinson Tort has
significance in modern society, particularly in addressing intentional
harm caused by statements disseminated through social media platforms
and electronic communications. It suggests that the proposed reform
could provide a remedy for victims of intentional emotional distress,
especially in contexts where statements are intended to cause harm but
do not necessarily lead to physical injury or recognized psychiatric
injury
Question 6: Explain the doctrinal differences between the Current
Wilkinson Tort and the Revised Wilkinson Tort regarding the threshold
harm required for a claim. Provide examples from the text to support
your answer.
In the Current Wilkinson Tort, actionable damage typically requires
proof of a recognized psychiatric injury, such as clinical depression The
following are potential 5-mark Questions from the Third and Fourth
Heading of the article. Note that the answers are kept brief or detailed
for your understanding and are not to be replicated in exam. Please write
your own Answers for these questions to avoid or post-traumatic stress
disorder. This threshold for actionable damage has been described as
"psychiatric injury in a technical sense" and necessitates a condition
with a recognized diagnostic label. However, under the Revised
Wilkinson Tort, the threshold harm required is lowered to "serious
emotional distress," which may fall short of a recognized psychiatric
injury. This shift in threshold harm aligns more closely with intentional
torts, acknowledging the intentional nature of the defendant's conduct
and the policy considerations surrounding intentional harm. For
example, while the Current Wilkinson Tort mandates proof of a
recognized psychiatric injury, the Revised Wilkinson Tort would permit
claims based on significant distress caused intentionally by the
defendant's statements or conduct, even if it does not meet the criteria
for a recognized psychiatric illness.

Question 7: Discuss the proposed reform of the "conduct element" in the

Revised Wilkinson Tort. How does it differ from the current
understanding of the tort, and what are the reasons behind this proposed
reform?
The proposed reform of the "conduct element" in the Revised Wilkinson
Tort focuses on limiting the tort to distressing statements directed at the
claimant. Unlike the Current Wilkinson Tort, which has expanded to
encompass various types of intentional conduct, the Revised Tort would
primarily concern statements intended to inflict emotional distress on the
claimant. This reform suggests that D's statements should be narrowly
directed at C, either individually or as part of a small and identifiable
group, excluding statements made to a large audience or the public-at-
large. The reasons behind this proposed reform include aligning the tort
more closely with its original intent, addressing modern societal
conditions where threats and false statements are disseminated widely
via electronic communication, and ensuring a clearer doctrinal
framework for liability. By focusing on directed statements, the Revised
Wilkinson Tort aims to provide a more coherent and predictable basis
for determining liability in cases involving intentional infliction of
emotional distress.

Question 8: Explain the distinction between false statements and

intermediate acts under the Revised Wilkinson Tort. Provide examples
from the text to illustrate your answer.
Under the Revised Wilkinson Tort, liability primarily arises from D's
statements directly causing emotional distress to C. However, in some
cases, D's false statements may create an opportunity for an intermediate
act by a third party (TP), which then causes emotional distress to C. In
such scenarios, where D's statement indirectly leads to harm through the
actions of a third party, the Revised Tort may not apply. For instance, in
the case of W v Essex CC mentioned in the text, the foster parents were
not directly harmed by the council's false information but suffered
emotional distress due to the consequences of that misinformation when
they allowed the foster child into their home, leading to sexual abuse of
their children. In such cases, where the emotional distress is caused by
the actions of a third party rather than directly by D's statements, the
Revised Wilkinson Tort may not provide grounds for liability.

Question 9: Discuss the proposed shift in burden of proof regarding

excusing D's conduct under the Revised Wilkinson Tort. How does this
proposed reform align with other areas of tort law, and what are the
reasons behind this proposed shift?
The proposed reform in the burden of proof regarding excusing D's
conduct under the Revised Wilkinson Tort suggests that D should bear
the burden of proving justification or reasonable excuse for their
statements or conduct. This proposed shift aligns with other areas of tort
law, such as the statutory tort under the PHA 1997, where defendants
bear the burden of proving defenses like justification or reasonable
excuse. Additionally, it is consistent with principles in trespassory torts
like assault and battery, where the burden of proving defenses like
consent or lawful justification rests on the defendant. The reasons behind
this proposed shift include ensuring doctrinal clarity and consistency
within tort law, providing a clearer framework for determining liability,
and aligning the burden of proof with the intentional nature of the
defendant's conduct in intentional torts like the Revised Wilkinson Tort.
By placing the burden on D to prove justification or reasonable excuse,
the Revised Tort aims to provide a fair and coherent basis for assessing
liability in cases involving intentional infliction of emotional distress.

Question 10: Compare and contrast the approach to actionable harm

under the Current Wilkinson Tort and the proposed approach under the
Revised Wilkinson Tort. How does the proposed reform address the
shortcomings of the current threshold for actionable damage? Provide
examples from the text to support your answer.
Under the Current Wilkinson Tort, actionable harm typically requires
proof of a recognized psychiatric injury, such as clinical depression or
post-traumatic stress disorder. This strict threshold has posed challenges
for claimants, as it may not always accurately reflect the harm suffered.
In contrast, the proposed approach under the Revised Wilkinson Tort
lowers the threshold to "serious emotional distress," which may not
necessarily meet the criteria for a recognized psychiatric injury but is
still significant enough to warrant compensation. This reform addresses
the shortcomings of the current threshold by acknowledging that
emotional harm, even if it does not reach the level of a recognized
psychiatric injury, can still be severe and deserving of legal remedy. For
example, the text discusses cases where claimants have struggled to
meet the stringent threshold for actionable harm under the Current
Wilkinson Tort, either due to the de minimis threshold for bodily injury
or insufficient medical evidence to prove physical injury. The proposed
reform recognizes that emotional distress, even if it does not manifest as
a recognized psychiatric injury, can have serious consequences for the
claimant's well-being and should be compensable under the law.
Moreover, the text highlights the medical perspective on the distinction
between emotional distress and psychiatric injury, noting that the
categorization of mental disorders has evolved over time and may not
accurately capture the spectrum of emotional harm experienced by
individuals. By shifting the focus to "serious emotional distress," the
Revised Wilkinson Tort aims to better align with modern understandings
of mental health and provide a more inclusive framework for
compensating harm.

Question 11: Explain the significance of the "conduct element" in the

Wilkinson Tort. How does the proposed reform in the "conduct element"
under the Revised Wilkinson Tort aim to clarify and streamline the tort's
application? Provide examples from the text to support your answer.
The "conduct element" in the Wilkinson Tort pertains to the actions or
statements of the defendant that give rise to the claimant's emotional
distress. Currently, the tort encompasses various types of conduct,
including false statements, verbal threats, and intentional acts, which
may not always align with the original intent of the tort. The proposed
reform in the "conduct element" under the Revised Wilkinson Tort seeks
to clarify and streamline the tort's application by focusing primarily on
statements intended to inflict emotional distress on the claimant. For
instance, the text discusses cases where the Wilkinson Tort has been
expanded to cover a broad range of conduct, including deliberate acts
that may not involve direct communication with the claimant. However,
there has been judicial disquiet about this expansion, with some
advocating for a more narrow interpretation focused on distressing
statements directed at the claimant. By limiting the tort to statements
intended to cause emotional distress, the Revised Wilkinson Tort aims to
provide a clearer and more coherent basis for determining liability.
Additionally, the proposed reform addresses modern societal conditions,
such as the dissemination of threats and false information through
electronic communication and social media platforms. By focusing on
directed statements, the Revised Wilkinson Tort acknowledges the
changing landscape of communication while ensuring that liability is
appropriately attributed to intentional acts intended to harm the claimant
emotionally.

Question 12: Explain the significance of the intent element in the

Wilkinson Tort as discussed in Racheal Mulheron's article. What are the
two main forms of intent proposed for the Revised Wilkinson Tort, and
how do they address the complexities surrounding intent in the current
framework? Provide examples from the text to support your answer.
The intent element in the Wilkinson Tort, as outlined in Racheal
Mulheron's article, refers to the mental state of the defendant (D)
concerning the harm inflicted on the claimant (C). Mulheron highlights
the complexities and uncertainties surrounding intent in the current
framework and proposes two main forms of intent for the Revised
Wilkinson Tort. Firstly, the proposed form of actual intention entails D
manifesting a subjective intent to cause serious emotional distress to C.
This subjective assessment focuses on D's actual desire or purpose to
inflict harm on C, irrespective of the likelihood of harm occurring.
Secondly, Mulheron suggests an inferred intention, which involves an
objective assessment of D's behavior and its likely impact on C. This
assessment considers extrinsic factors such as C's age, the nature of the
relationship between C and D, and any vulnerabilities or characteristics
of C known to D. Based on these factors, the court could infer that D
intended to cause serious emotional distress to C, even if D did not
subjectively desire such an outcome. These proposed forms of intent aim
to provide clarity and consistency in determining liability under the
Revised Wilkinson Tort, addressing the various complexities and
ambiguities associated with intent in the current framework. By
establishing clear criteria for assessing intent, the Revised Wilkinson
Tort seeks to enhance predictability and fairness in adjudicating claims
related to emotional harm.

Question 13: Discuss the evolution of the concept of intent in the

Wilkinson Tort as described in Racheal Mulheron's article. How has the
judiciary grappled with different forms of intent, and what criticisms
have been raised regarding its application? Provide examples from the
text to support your answer.
Racheal Mulheron's article outlines the evolution of the concept of intent
in the Wilkinson Tort, highlighting the judiciary's struggle with different
forms of intent and the criticisms associated with its application.
Initially, the Wilkinson Tort recognized various forms of intent,
including actual intention to harm and imputed intention based on the
likelihood of harm resulting from D's conduct. However, these multiple
forms of intent led to confusion and inconsistency in the application of
the tort. For instance, courts debated whether D's intent should be
assessed subjectively (based on D's actual state of mind) or objectively
(based on the likely consequences of D's conduct). Additionally, there
were disagreements regarding the threshold for establishing intent, with
some advocating for a stringent requirement of actual desire to harm
while others endorsed a broader standard based on the foreseeability of
harm. Critics argued that the ambiguity surrounding intent in the
Wilkinson Tort undermined its effectiveness and predictability, making
it difficult for claimants to establish liability and obtain redress for
emotional harm.

Question 14: Explain the judicial stance on imputed intent in the

Wilkinson Tort, as discussed in Racheal Mulheron's article. How has the
judiciary's perspective evolved over time, and what impact has this
evolution had on the application of the tort? Provide examples from the
text to support your answer
In Racheal Mulheron's article, the discussion on imputed intent in the
Wilkinson Tort reflects the judiciary's evolving perspective and its
impact on the application of the tort. Initially, courts recognized imputed
intent as a means of attributing intent to D based on the likelihood of
harm resulting from D's conduct, even if D did not subjectively desire
such harm. This approach aimed to hold D accountable for the
foreseeable consequences of their actions, promoting fairness and
accountability in tort law. However, the judiciary's stance on imputed
intent has shifted over time, with some courts questioning its validity
and appropriateness in modern tort law. In the case of Rhodes, the
Supreme Court criticized imputed intent by operation of law, arguing
that it had no proper role in the modern law of tort. This decision
signaled a departure from the previous reliance on imputed intent and
emphasized the importance of establishing D's intent based on factual
evidence rather than legal presumptions. This evolution in the judiciary's
perspective on imputed intent has influenced the application of the
Wilkinson Tort, leading to greater emphasis on factual analysis and the
assessment of D's intent based on objective criteria. As a result,
claimants seeking to establish liability for emotional harm must provide
clear evidence of D's intent rather than relying solely on legal
presumptions.

Question 15: Discuss the proposed reforms to the intent element in the
Revised Wilkinson Tort, as outlined in Racheal Mulheron's article. How
do these reforms aim to enhance clarity and consistency in the
application of the tort? Provide examples from the text to support your
answer.
Racheal Mulheron's article proposes reforms to the intent element in the
Revised Wilkinson Tort, intending to improve clarity and consistency in
its application. The proposed reforms suggest two main forms of intent:
actual intention and inferred intention. Actual intention involves D's
subjective desire to cause serious emotional distress to C, providing a
clear standard for assessing D's culpability based on their mental state.
Inferred intention, on the other hand, entails an objective assessment of
D's behavior and its likely impact on C. This assessment considers
extrinsic factors such as the nature of the relationship between D and C,
any vulnerabilities of C known to D, and the foreseeable consequences
of D's conduct. By incorporating these objective criteria, the proposed
reforms aim to provide a more nuanced understanding of D's intent and
its relevance to the tortious claim. Overall, these reforms seek to
enhance clarity and consistency in determining liability under the
Revised Wilkinson Tort by establishing clear criteria for assessing D's
intent. By providing a structured framework for evaluating intent, the
reforms aim to promote fairness and predictability in adjudicating claims
related to emotional harm.

Question 16: Explain the concept of recklessness in the context of the

Wilkinson Tort as discussed in Racheal Mulheron's article. How has the
judiciary's treatment of recklessness evolved over time, and what
significance does it hold in determining liability for emotional harm?
Provide examples from the text to support your answer
In Racheal Mulheron's article, recklessness in the context of the
Wilkinson Tort refers to a state of mind where D acts without caring
whether harm is caused to C or not. Initially, recklessness was
considered a viable form of intent under the Wilkinson Tort, allowing
claimants to establish liability based on D's disregard for the potential
consequences of their actions. However, the judiciary's treatment of
recklessness has evolved over time, leading to shifts in its significance in
determining liability for emotional harm. In earlier cases such as C v D,
Field J noted that recklessness could be sufficient to establish intent
under the Wilkinson Tort, particularly in situations where the likelihood
of harm occurring was low but D's actions were nonetheless reckless.
Nevertheless, in the case of Rhodes, the Supreme Court unanimously
rejected recklessness as a valid form of intent under the Wilkinson Tort.
The court argued that recklessness was too slippery a concept to define
easily and did not provide a reliable basis for assessing D's culpability.
Consequently, post-Rhodes, recklessness was deemed insufficient to
establish liability for emotional harm under the Wilkinson Tort. This
evolution in the judiciary's treatment of recklessness highlights the
challenges associated with establishing intent in cases of emotional
harm. While recklessness may have been considered a viable form of
intent in earlier jurisprudence, recent decisions have underscored the
need for clearer and more objective criteria for assessing D's mental
state. As a result, claimants seeking to establish liability for emotional
harm must now rely on more robust evidence of D's intent, rather than
mere recklessness, to succeed in their claims.

Question 17: Discuss the application of the "material contribution" test

in the case of C v D within the context of the tort of Wilkinson v
Downton. What factors did the court consider in determining whether
the defendant's conduct materially contributed to the claimant's harm?
In the case of C v D, the court applied the "material contribution" test in
assessing causation within the framework of the Wilkinson v Downton
tort. This test allows for liability if the defendant's conduct materially
contributed to the claimant's harm, even if other factors also played a
role. The court considered various factors in determining whether the
defendant's conduct met this standard. These factors included: The
presence of other potential contributing causes to the claimant's harm,
such as pre-existing psychological vulnerabilities and difficult family
circumstances. The severity and cumulative effect of the harm caused by
the defendant's conduct compared to other contributing factors. The
nature of the defendant's intentional words or conduct and their impact
on the claimant's mental state. Whether the defendant's conduct
exacerbated the claimant's existing condition or triggered a new
manifestation of harm. The overall impact of the defendant's actions on
the claimant's mental well-being, considering both direct and indirect
consequences. By considering these factors, the court determined that
the defendant's conduct made a material contribution to the claimant's
psychiatric condition, warranting the award of proportionate damages.

Question 18 : Evaluate the arguments for and against adopting a strict

"but-for" causation test in the Revised Wilkinson Tort. How does this
approach differ from the current application of the "material
contribution" test, and what implications might it have for liability in
cases involving emotional distress?
Adopting a strict "but-for" causation test in the Revised Wilkinson Tort
would require the claimant to prove that, but for the defendant's words
or conduct, the harm would not have occurred. This approach differs
from the current application of the "material contribution" test, which
allows for liability if the defendant's conduct materially contributed to
the harm, regardless of other factors. Arguments in favor of the strict
"but-for" test include its clarity and certainty in determining causation,
reducing the potential for unjust outcomes and excessive liability.
However, opponents argue that this approach may be too rigid and fail to
account for complex cases where multiple factors contribute to the harm.
It may also preclude deserving claimants from obtaining redress for
emotional distress caused by the defendant's actions. Ultimately, the
choice between these approaches involves balancing the need for justice
for claimants with the need to prevent unjust outcomes and excessive
liability for defendants.

Question 19: Explain the role of the remoteness element in the tort of
Wilkinson v Downton. How does the concept of reasonable
foreseeability of damage and the normal fortitude rule influence liability
in cases involving emotional distress?
In Wilkinson v Downton, the remoteness element comprises two sub-
parts: reasonable foreseeability of the relevant damage and the normal
fortitude rule. Reasonable foreseeability of damage requires that the
harm inflicted upon the claimant by the defendant's words or conduct
was reasonably foreseeable. The normal fortitude rule states that if the
harm would foreseeably affect a person of normal fortitude, then the
defendant is liable, regardless of the claimant's actual mental resilience.
These principles influence liability in cases involving emotional distress
by establishing a standard for determining when the defendant's actions
give rise to liability. If the harm inflicted upon the claimant was
reasonably foreseeable and would affect a person of normal fortitude,
then the defendant may be held liable for the emotional distress caused.

Question 20: Critically analyze the arguments for abolishing the role of
remoteness in the Revised Wilkinson Tort. What implications might this
have for the assessment of liability in cases involving intentional
infliction of emotional distress?
Abolishing the role of remoteness in the Revised Wilkinson Tort raises
several doctrinal considerations and potential implications for liability.
Arguments in favor of this approach include aligning the tort more
closely with intentional torts like battery and assault, where remoteness
is not a requirement. This could provide clarity and consistency in
determining liability for intentional infliction of emotional distress.
However, opponents argue that removing remoteness considerations
may lead to unjust outcomes and excessive liability, particularly if
unforeseeable consequences result from the defendant's actions.
Additionally, it may undermine the principles of fairness and
proportionality in tort law. Ultimately, the decision to abolish
remoteness in the Revised Wilkinson Tort requires careful consideration
of its doctrinal implications and potential impact on the assessment of
liability

Question 21: Compare and contrast the application of causation and

remoteness in the tort of Wilkinson v Downton with other torts such as
negligence. How do these differences reflect the unique characteristics
and policy considerations of intentional torts involving emotional
distress?
The application of causation and remoteness in the tort of Wilkinson v
Downton differs from other torts such as negligence due to the
intentional nature of the conduct involved. In negligence, causation
typically follows a strict "but-for" test, requiring the claimant to prove
that, but for the defendant's actions, the harm would not have occurred.
Remoteness considerations focus on whether the harm was a reasonably
foreseeable consequence of the defendant's actions. In contrast, the
Wilkinson v Downton tort allows for liability if the defendant's conduct
materially contributed to the claimant's harm, and reasonable
foreseeability of damage is assessed based on the normal fortitude rule.
These differences reflect the unique characteristics and policy
considerations of intentional torts involving emotional distress, where
the focus is on the defendant's intentional infliction of harm rather than
mere negligence. The intentional nature of the conduct may justify
different standards for establishing causation and assessing remoteness,
considering the heightened culpability associated with intentional
wrongdoing.

Question 22 : How does the article propose to modernize the defense

under the Wilkinson Tort, and what potential scenarios does it suggest
could be covered under this defense?
The article proposes the introduction of a "not in the public interest to
litigate" defense under the Revised Wilkinson Tort. This defense would
delineate between statements intended to inflict The Following are the
Potential Questions From Headings 7 & 8. Note that the answers are
kept brief or detailed for your understanding and are not to be replicated
in exam. Please write your own Answers for these questions to avoid
plaigarism. emotional distress on the plaintiff that are actionable and
those that are not. The text suggests that this defense could be applicable
to various scenarios, such as workplace criticisms, rudeness and
unfriendliness among colleagues, horseplay incidents, and domestic
disputes. It emphasizes that determining the boundary between
actionable and non-actionable statements would depend on the facts and
circumstances of each case.

Question 23: How does the Revised Wilkinson Tort aim to balance
freedom of expression rights with the protection of individuals from
emotional distress caused by statements?
The Revised Wilkinson Tort aims to balance freedom of expression
rights with the protection of individuals from emotional distress by
introducing a defense based on the public interest in not litigating certain
statements. This defense acknowledges the need to preserve freedom of
expression in situations involving normal discourse, including
unpleasant arguments and insults, while also recognizing the potential
harm caused by deliberate and unjustified infliction of emotional
distress. The proposed reform emphasizes the importance of ensuring
that statements causing serious damage, particularly in today's social
media era, are appropriately addressed.
Question 24: What are some examples provided in the text where
statements or actions causing emotional distress may not be actionable
under the Revised Wilkinson Tort?
The text provides several examples where statements or actions causing
emotional distress may not be actionable under the Revised Wilkinson
Tort. These include managerial criticisms in the workplace, rudeness and
unfriendliness among colleagues, horseplay incidents, and domestic
disputes. The defense of "not in the public interest to litigate" would
potentially apply to these scenarios, recognizing that certain forms of
emotional distress are inherent in everyday interactions and may not
warrant legal intervention.

Question 25: How does the article suggest the Revised Wilkinson Tort
could address concerns regarding freedom of expression, particularly in
the context of journalism and other forms of writing?
: The article suggests that the Revised Wilkinson Tort should be
consistent with the European Convention on Human Rights, particularly
Article 10, which enshrines the right to freedom of expression. It
proposes that the tort should not unduly interfere with normal journalism
and other forms of writing, including trenchant expressions. The
balancing exercise between protecting individuals from emotional
distress and safeguarding freedom of expression should be conducted
with the recognition that restricting speech must be convincingly
justified.

Question 26: What procedural safeguards does the text mention to

prevent abusive or vexatious litigation under the Revised Wilkinson
Tort, and why does it argue that these concerns should not hinder
substantive law reform?
The text mentions existing procedural safeguards that preclude abusive,
vexatious, or improper litigation. These safeguards ensure that claims
are not "engineered" or pursued for improper reasons. Despite concerns
about potential abuse of the legal system, the text argues that these
procedural safeguards are manageable and should not impede
substantive law reform aimed at providing redress to genuine victims of
emotional distress. It emphasizes that the need for reform to address the
harms caused by intentional wrongdoing outweighs concerns about
potential misuse of the legal process.