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MODERINISING THE TORT OF WILKINSON VS DOWNTOWN
(Rachael Mulheron)

Structure of Tort Article

¯
1. Aim of Article
2. Origins of Wilkinson vs Downtown Tort
3. Why Revised Test is needed?
4. Justifications of Reforms
a) Conduct Element
b) Intention Element
c) Consequence Element (Along with causation and
Remoteness of Damage).
5. Defences
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Part – One
Aim of Article
a) Reforms to constitute the Revised Test for Wilkinson vs Downtown.
b) Difference between current test and Revised Test
Current Test Revised Test
Intention infliction upon C of Physical Intentional Infliction upon C of Physical
Injury or emotional distress giving rise to a Injury or emotional Stress, caused by D’s
recognized psychiatric injury, caused or Statements directed to C.
materially contributed by Defendants
Statements and conduct.

a) Recognized PI a) Emotional Stress

b) Statements and Conduct b) Statements

c) Practical Application is very limited. No successful outcomes on the basis of current test.
Practically used in four cases.
d) Revised Test can perfectly deal with the Modern Societal conditions
i. Dissemination of statements with respect to Social Media.
ii. Important role to play in Vulnerable sector or the sector where power gap
exist : Schools (Example) : Two cases were related to sexual abuse by
educationist.
c) Rhodes vs OPO : Reference Point for Reforms*
This case involved an autobiography written by a father, James Rhodes, involving sexual
assault and his own psychosis. The mother, acting on behalf of the child (OPO), sued to
obtain an injunction preventing publication of the autobiography, claiming that it would
inflict extreme emotional distress on OPO were he to ever read it. The lower court
dismissed the application on the basis that there was no cause of action in tort law. OPO
appealed and the court of appeal held that “there was no claim in misuse of private
information or in negligence, but that the claim for intentionally causing harm should go
for trial.” The court of appeal granted an interim injunction on the basis that intention to
cause harm could be imputed to Rhodes even if that intention was indirect, and a trial date
was set. Rhodes appealed to the Supreme Court of the United Kingdom. Appeal allowed.
The Supreme Court held that the tort under Wilkinson v Downton consists of three
elements:

1. A conduct element
2. A mental element
3. A consequence element
The conduct element requires "words or conduct directed towards the claimant for which there
is no justification or reasonable excuse, and the burden of proof is on the claimant." In the
present case the court placed great emphasis on freedom of speech and held that "freedom to
report the truth is a basic right to which the law gives a very high level of protection." The
mental element meanwhile requires an "intention to cause physical harm or severe mental or
emotional distress".This overruled the Court of Appeal judgment that held recklessness to be
sufficient. It was held that Rhodes did not intend to cause psychiatric harm or severe mental or
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emotional distress to his son. The consequence element requires evidence of physical harm or
recognised psychiatric illness but was not relevant in this case.

d) BCV vs EWF : The Claimant (“C”) applied for summary judgment in a claim for misuse
of private information and harassment, and to strike out D’s counterclaim. The privacy
claim arose from a website created by the Defendant (“D”), giving his account of his
relationship with C, and the harassment claim from a series of email communications from
D to C, over a period of some two years, and from publication of the website itself. D was
granted an ex parte injunction on 27 June 2018 by Nicklin J. By that order, D was
restrained from contacting or harassing C, from publishing the website or any of its
contents to the world at large, and from publishing any of the information set out in a
confidential schedule, or any information which was liable to or might identify C as a party
to the proceedings or as the subject of the confidential information. The information set out
in the confidential schedule was information concerning C’s sexuality and his relationship
with D; his sexual life, including intimate details of sexual activity; his health, including
intimate details relating to his mental and sexual health; his family life, including
relationships with his mother and brother; financial information; and allegations that he
had been involved in criminal or regulatory wrongdoing. The interim injunction was
continued by Nicklin J on 4 July 2018, and by Dingemans J on 22 November 2018, on both
occasions in the absence of D. D made a cross-application seeking an order striking out the
claim pursuant to CPR 3.4 and discharging the interim injunction on six grounds: (1) C did
not have his centre of interests in England and Wales; (2) no alleged act or alleged harm
has occurred in England and Wales; (3) the injunction interfered with D’s rights under
Article 10 and Article 8 of the ECHR; (4) the claim was an abuse of process as per Jameel
v Dow Jones; (5) the claim was an abuse of process as the “nub” of C’s claim was
reputation; and (6) C should not be entitled to any equitable relief as he had breached the
clean hands doctrine. Following the granting of the interim injunction and the return date,
D had made a challenge to the Court’s jurisdiction, putting in evidence to the effect that he
currently lived and worked in Switzerland, had done so since 2017, and was in Zürich on
27 June 2018 when the Claim Form and accompanying documents were served on him by
email. The challenge to jurisdiction was heard on 5 October 2018 by Karen Steyn QC
sitting as a deputy judge of the High Court. The deputy judge dismissed D’s application
with costs, BVC v EWF [2018] EWHC 2674 (QB). She held that C had a good arguable
case that this jurisdiction was the state in which he had the centre of his interests, and that
in any event a real and substantial tort (namely misuse of private information) had been
committed within the jurisdiction. D sought permission to appeal from the judgment of
Karen Steyn QC but was refused permission by Floyd LJ on 14 February 2019. C filed and
served a Particulars of Claim and D filed and served a Defence and Counterclaim. In the
counterclaim, D relied on causes of action in ‘negligence, battery and assault, intention
infliction of harm (sic), trespass to goods, conversion, deceit, malicious prosecution and
abuse of process’. D strongly disputed in the Defence that this jurisdiction was the centre
of the Claimant’s interests, maintaining that in reality that centre was State B. C maintained
that it was not open to the Defendant to pursue his jurisdictional challenge since that had
been conclusively and finally determined by the deputy Judge.
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PART - TWO
(Origins of Wilkinson vs Downtown Tort)

1. Facts : Thomas Wilkinson became publican in 1895, 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 ) 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.
2. Para 59 of Judgment : D had willfully made a false representation to W intending to cause
some physical harm to W, by infringing her right to personal safety, with no justification
for doing so. Although D did not intend the harm which was caused, this ‘wilful injuria’
is malicious in law. The injury caused to W was not too remote and could have been
foreseen, and therefore taken to have been intended.
3. J Wright : “It is difficult to imagine that such a statement, made suddenly and with
apparent seriousness, could fail to produce grave effects under the circumstances upon any
but an exceptionally indifferent person, and therefore an intention to produce such an effect
must be imputed, and it is no answer in law to say that more harm was done than was
anticipated, for that is commonly the case with all wrongs.”
4. Criticisms : Lord Hoffman in the case of Wainwright vs Home Office.

a) Lord Hoffman : Decision of Wilkinson is an accident of legal History

b) Concept of imputed intention resemble with “Concept of Negligence”.
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PART THREE
Why Revised Test is needed?
Reform Proposal

A. Three reasons suggested by Writer.

Reason No. 01 : Tort Law does not cover Gap if revised Wilkinson test is not adopted.
1) Protection form Harassment Act 1997 (PHA) : Deals with harassing incidents but
require course of conduct (there must be more than two continuous conduct to make
any one liable for the said tort).
2) Private Nuisance : It deals with emotional stress or disturbance – however, hunter vs
Canary wharf clog i.e. proprietary interest has stiff left the gap.
3) Defamation : It do not deal with threats. Only derogatory remarks against claimant.
4) Battery : Actual infliction of force required
5) Assault : Threat of Imminent physical force, do not deal with mental threat.
6) Tort of Injurious falsehood : a tort in which statements are the cause of damage to
products – business or property.
7) Negligence Tort(s) : Negligence (Simple Negligence and Psychiatric injury) are
restricted to Negligence. Do not deal with intentional torts.

Reason No. 02 : Criminal Law does not cover Gap if revised Wilkinson test is not adopted.
1) Criminal Injuries compensation Fund : It is only crime which deals with
mental injuries, however crime is mandatory.
2) Criminal Offence of Disclosing private Sexual photographs : It do not fill gaps
as well.

Reason No. 03 : Effect of Revised Wilkinson Test on Modern World of Social Media .
1) 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, 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 recognized psychiatric injury (a pre-requisite which will not be
necessary under the Revised Wilkinson Tort).
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PART FOUR

NEED TO REFORM THRESHOLD HARM

General Principle
1) Wilkinson vs Downtown is not actionable per se. Harm is mandatory i.e.
Physical Injury or Recognized Psychiatric Injury.
2) Actionable per se : Endorsed by J Wright in the case of W v D with words as :
claimant must have to show that D had infringed her legal right to personal
safety and has infact cause physical harm to victim. Physical harm means bodily
harm or psychiatric harm.

Current Test Revised Test

Not actionable per se Not actionable per se

Physical harm recoverable under W v D Tort

1. Physical harm is recoverable under W v D but rarely featured in case

law on the basis of :
i. Physical Injury is not directly recoverable. (Harm is indirect).
Why not directly recoverable? Claimants will go for Assault and
Battery.
ii. Physical injury is consequential as W v D tort is primarily for
mental harm.

Current Test Revised Test

Physical Injury is recoverable : No Diff Physical Injury is recoverable : No Diff

Mental Harm

1. Negligence Tort: Harm must be recognized psychiatric harm.

Emotions, grief, sorrow, pain etc. are not sufficient. Negligence does not
cover gap as W v D (Current) tort also require recognized psychiatric
harm.
Current Test Revised Test
Recognized PI Serious emotional distress

Endorsement for reforms by Academics - Jurists and Judges

1. 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.
2. 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".
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Current Test Approach with regards to Recognized psychiatric injury is flawed

1. As per writer, reform(s) with respect to threshold harm i.e. Recognized Psychiatric Injury
must be considered through :
i. Medical Perspective
ii. Legal Perspective

1. Medical Perspective

a. 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.
b. England and Wales Law Commission’s study on mental harm : British Medical
Association stated that "[t]here is no sudden cut-off point where grief and other
distresses suddenly become psychiatric illnesses.
c. 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, infact, different types of injury".
d. 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" .
e. 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
f. DSM-IV : major depression and general anxiety disorders are manifestations of a
similar underlying disease process.
g. DSM-5 : Same disorders
h. The English common law’s insistence upon a "bright-line" distinction between
emotional distress and anxiety on the one hand, and a recognized psychiatric injury
on the other, has long been considered, medically, to be artificial and unrealistic.
i. Suggestions : Some of the features of a "generalized anxiety disorder" as was
categorized 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.
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2. Legal Perspective

There are four reasons justify, at law, a lower damage threshold under the Revised
Wilkinson Tort.

1) Reason No. 01: It is an intentional tort which requires deliberate statements by

D—there is nothing careless or accidental about it. D should be held to greater
account for intentionally-caused harm. Lord Hoffman endorsed this concept in
the case of Hunter vs Cnary Wharf. In another case of Rhodes, the Supreme
Court put it similarly: "negligence and intent are very different fault elements
and there are principled reasons for differentiating between the ... possible
extent of liability for causing personal injury in either case".
2) Reason No. 02 : 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; and for malice- based torts such as the malicious prosecution of
criminal proceedings and (since 2016) civil proceedings. 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
recognized psychiatric illness. In that regard, the Current Wilkinson Tort has
always sat uncomfortably with these common law cousins.
3) Reason No. 03 : claims for anxiety or distress are sufficient for various statutory
torts which entail wrongful intentional conduct by D. Like PHA tort.
4) Reason No. 04 : 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 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 recognized psychiatric injury. Consistency
demands that the elements of threshold damage and intent coalesce.
5) Conclusion : the Revised Wilkinson Tort’s allowance for a lesser form of
damage than a recognized psychiatric injury would be consistent both with
existing statutory regimes and with other intentional common law torts. It
would also make doctrinal sense.
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PART FIVE

1. As per the Rhodes vs OPO : The Supreme Court held that the tort under Wilkinson v
Downton consists of three elements:

§ A conduct element
§ A mental element
§ A consequence element
2. Author suggested four reforms with respect to conduct element of Tort of Wilkinson vs
Downtown. (Discuss under Point No. 04).
3. What is conduct element? Under current Wilkinson vs Downtown town, Conduct element
involve types :
a. Conveying False Information to be untrue which defendant believe(s)
to be untrue.
b. Where D verbally threatens C, which has the effect of pestering and
intimidating C, causing C to suffer harm
c. Where D commits an intentional act (lawful or unlawful)against C
which D intends to cause C harm. (various acts have been judicially
noted as being at least capable of triggering the tort).
4. Criticism on Conduct Element : In Rhodes Case, Lord Neuberger considered that the
Current Wilkinson Tort should be limited to "distressing statements.
5. Problem : Whether intentional conduct, in the absence of statements, should continue to be
covered under the Revised Wilkinson Tort? Answer : On balance, the author considers that it
should not. Rather, the Revised Wilkinson Tort should focus upon D’s statements (Reform No.
01).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 sexual activity 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, would constitute the sort of
"statements" necessary to invoke the tort.
Reform No. 02 : Directed Statement :
6. There are two main issues which author think that they should be addressed :
i. Does D’s statement need to be addressed to C directly and "in person"; and
ii. 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)?

Issue No. 01 Does D’s statement need to be addressed to C directly and "in person? In Person not
mandatory. Under Current Test, such situations are very rare. However, under revised test
they should not be ruled out due to norms of modern world.
Issue No. 02 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)?
a): Rhodes case: It was decided that 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" ), but not to the public-at-large.
b): Lord Neuberger preferred that D’s statement should be aimed at C as a "particular
individual
c): Suggestion : 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
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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.

Reform No. 03 : False Statements and intermediate Acts :

o Current Test only cover Acts.
o Revised should be applicable to Omission based scenarios.

Reform No. 04 : Excusing Defence:

o Under Current Test, burden is on Claimant that D’s statements or conduct

must have no justification or reasonable excuse.
o Revised Test : Burden should be on defendant.