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Summary of the article ‘Modernizing Tort of Wilkinson v Downton’:

by Rachael Mulheron
The basic summary of the entire article is understandable by the following definitions:
o Current Wilkinson v Downton:
“The intentional infliction upon C of physical (bodily) injury, or emotional distress giving
rise to a recognized psychiatric injury, which is caused, or materially contributed to, by
D’s statements and conduct."
o Revised Wilkinson v Downton:
"The intentional infliction upon C of physical (bodily) injury, or serious emotional
distress, which is caused by D’s statements directed to C."
1- Introduction
• Current Wilkison Tort and Revised Wilkinson
• Reasons why Wilkinson Tort should be modernized

2- Then and Now:

• Lower damage threshold for compensation
• Medical perspective
• Legal perspective

3- Reforming the conduct element

• Conduct versus statement
• Directed statements
• False statements and intermediate acts
• Excusing D’s conduct

4- Strict causation test:

• Current Wilkinson accepts exception to the general rule of causation i.e., D materially
contributed to the risk
• Nonetheless, in revised test, Strict causal link should be applied rather than considering
the exceptions.

5- Intent element
• Currently acknowledged legal arguments on intent element
• Suggestions for reforming the intent element

6- Remoteness of damage

7- A new defense
• Justification or reasonable excuse i.e., non-actionable in the public interest
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MODEL ANSWERS FOR PART- A

Question 1: What key reforms does Rachael Mulheron propose for the Wilkinson Tort in her
article "Modernizing Tort of Wilkinson v Downton"?
In the article, "Modernizing Tort of Wilkinson v. Downton," Rachael Mulheron argues for
substantial changes to the Wilkinson Tort. The author contends that the existing tort is insufficient
since it concentrates on the defendant's deliberate infliction of bodily harm or mental distress
resulting in a recognized psychiatric injury. Mulheron proposes a revised cause of action, termed
the Revised Wilkinson Tort, which would center on intentional infliction of physical injury or
serious emotional distress caused solely by the defendant's statements directed at the claimant.
Mulheron highlights the shortcomings of the Current Wilkinson Tort, noting its limited utility and
success rate in English law. She argues that the tort fails to adequately address cases where harm
is intentionally caused by the defendant's statements with the aim of inflicting injury or distress
upon the claimant. By reforming the tort to focus specifically on the defendant's statements as the
cause of harm, Mulheron believes that a pivotal gap in English tort law could be filled, especially
in cases involving harm through social media platforms and electronic communications. The
article delves into the historical context of the Wilkinson Tort, examining its origins and judicial
evolution over time. Mulheron critically analyzes the tort's elements, including the threshold harm,
conduct, intent, and consequences, and argues for their reevaluation and modification to align with
modern societal conditions. She highlights that the application of the tort must be effective, clear,
and unambiguous, especially given the difficulties caused by ambiguity, sparse application, and
uncertainty in English jurisdiction.
Mulheron concludes by saying that in order to better serve the interests of justice and offer
sufficient restitution for purposeful harm caused by damaging comments, the Wilkinson Tort needs
to be updated and redesigned.
Question 2: What are the facts of Wilkinson v Downton?
On April 9, 1896, Mr. Wilkinson was attending the races leaving his wife Lavinia Wilkinson in
charge of the management of the pub, when Mr. Downton visited the pub making a practical joke
with Mrs. Wilkinson. He falsely informed her that her husband had been severely injured in an
accident on his way back from the races and was lying injured in another pub. Distressed by the
news, Mrs. Wilkinson sent others to find her husband, only to discover that he had returned safely.
However, the shock caused Mrs. Wilkinson to become seriously ill, experiencing symptoms such
as vomiting and a severe shock to her nervous system, leading to medical treatment. Mrs.
Wilkinson sued Mr. Downton for the harm caused by his actions. She was compensated for the
railway fares incurred during the fruitless journey to find her husband, under the tort of fraudulent
misrepresentation. In addition, Mrs. Wilkinson received compensation for the psychological harm
she endured; this was a ground-breaking ruling by Wright J. that created a new avenue for legal
action.
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Question 3: What specific shortcomings in existing tort laws led to the proposal for the
Revised Wilkinson Tort, and how does it aim to address these gaps in redress for emotional
distress caused by intentional acts? OR what are the reasons to modernize the tort of
Wilkinson v Downton in view of the author?
The Revised Wilkinson Tort is deemed necessary for several reasons, beyond its historical lack of
successful application:
Firstly, existing torts fail to comprehensively address certain types of harm, leaving gaps in redress
that the Revised Wilkinson Tort aims to fill. (i) the Protection from Harassment Act 1997 requires
a course of conduct, thus excluding one-off incidents or isolated acts. (ii) Similarly, private
nuisance's reliance on the Hunter rule restricts its applicability. (iii) defamation may not apply in
cases lacking publication or defamatory imputations. (iv) Battery and assault, while relevant in
some scenarios, do not fully capture the essence of intentional emotional distress inflicted by
verbal threats. (v) Tort law of negligence, apart from duty of care demands other requisites to be
proven.
Secondly, existing criminal law mechanisms do not adequately address the void. While the
Criminal Injuries Compensation Fund compensates for mental injury linked to "a crime of
violence," it does not encompass the types of harmful statements targeted by the Revised
Wilkinson Tort. Similarly, the 2015 criminalization of disclosing private sexual photographs does
not offer compensatory redress. As a result, under these legal requirements, people who are
intentionally harmed by disturbing remarks are not eligible for compensation.
Thirdly, in today's digital age, the prevalence of social media and electronic communication
amplifies D's capacity to inflict serious emotional distress on C through harmful statements. The
outdated Wilkinson Tort fails to address this modern reality adequately. Revision of the tort to
eliminate the need for a diagnosed mental injury will better enable victims to pursue compensation
for emotional distress brought on by deliberate comments. This adjustment, coupled with
advancements in the online court system, offers a promising avenue for victims to attain justice
in cases involving distressing online behavior.

Question 4: How does the insistence on recognized psychiatric injury in the Current
Wilkinson Tort potentially limit access to justice for victims of intentional emotional harm?
The Current Wilkinson Tort requires proof of recognized psychiatric injury for a successful claim,
often making recovery challenging for victims of intentional emotional harm. However, proposed
reforms advocate for a shift towards compensating for serious emotional distress, regardless of
whether it meets the criteria of recognized psychiatric injury. As noted by Lord Hoffmann in the
Hunter v. Canary Wharf Ltd. private nuisance case, this is consistent with past legal decisions and
academic views that advocate a more inclusive strategy for dealing with intentional harm. The
insistence on recognized psychiatric injury may overlook significant emotional suffering,
hindering access to justice. Therefore, reforming the tort to recognize serious emotional distress
as actionable harm could enhance accountability for intentional infliction of emotional harm.
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Question 5: To prove the stance of lower damage threshold, what medical arguments are
raised by the author?
Legal precedents and medical specialists both agree that the common law does not provide a clear
cut demarcation between acknowledged psychiatric injury, anxiety, and emotional discomfort.
Courts have acknowledged that the distinction between anxiety and psychiatric harm is becoming
hazier due to their shared aetiology and symptoms. Medical scholars highlight historical shifts in
psychiatric classification, suggesting that anxiety and depression may represent different
manifestations of the same underlying disorder. The move away from strict categorization in
DSM-5 reflects a broader recognition within the medical community that mental disorders exist
on a continuum rather than discrete categories. This medical understanding challenges the
traditional legal framework that requires a recognized psychiatric injury for compensation under
the Current Wilkinson Tort. The proposed Revised Wilkinson Tort, which aims to a serious
emotional distress as actionable harm, aligns more closely with contemporary medical insights.
Factors such as impairment in daily functioning, duration of distress, and physical symptoms could
be considered when assessing harm under the revised tort. The author posits that the characteristics
of "generalized anxiety disorder" as classified in the original DSM-V may correspond with
meeting the threshold harm of "serious emotional distress" under the Revised Wilkinson
Tort.These features include distress that:
1) exceeds normal levels and significantly disrupts psychosocial functioning;
2) persists extensively with notable intensity;
3) hampers social, occupational, or crucial life aspects; and
4) exhibits somatic symptoms such as weariness, irritability, or insomnia. Therefore, in
determining whether C suffered the necessary mental harm, one may take into account
elements like the degree of cognitive impairment and disruption of daily life brought on by D's
actions, the length of time these effects persisted, the need for medical attention, the effects on
C's social and professional life, and any accompanying physical manifestations.

Question 6: To prove the stance of lower damage threshold, upon what legal arguments the
author has relied?
The Revised Wilkinson Tort justifies a lower damage threshold for several legal reasons.
Firstly, because it is an intentional tort and calls for the defendant to have taken purposeful
measures, the case for a lower threshold of injury is greater than it would be in a negligence case.
This is consistent with the idea that deliberate injury ought to be given more weight.
Secondly, many intentional torts permit recovery for emotional distress without requiring a
recognized psychiatric injury, highlighting the inconsistency of the Current Wilkinson Tort with
other torts.
Thirdly, various statutory torts allow claims for distress without physical injury, supporting the
need for a lower threshold in intentional torts like the Revised Wilkinson Tort.
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Finally, aligning the intent requirement with the threshold for damage ensures doctrinal
consistency. However, this does not imply that all emotional distress should be compensated, as a
de minimis threshold still applies in English Tort law.
Question 07: How does the reinterpretation of intent in the Revised Wilkinson Tort aim to
enhance clarity and fairness in its application compared to the original formulation? OR
What are the reforms suggested by the author on Intent element?
Reforming the intent element of the Current Wilkinson Tort is imperative to eliminate any
ambiguity in its application. Lord Hoffmann's approach in Wainwright underscores the need for
clarity regarding the concept of intent. Initially, the question arises: what exactly must D intend?
In Rhodes, the Supreme Court clarified that D's intent must either be to cause C a recognized
psychiatric injury or to cause serious emotional distress resulting in psychiatric harm. This
reinterpretation represents a departure from the original formulation in Wilkinson v Downton,
broadening the scope of intent and reducing the burden of proof on C. Nevertheless, D simply
needs to intend to cause C emotional distress in order for the Revised Wilkinson Tort to apply. In
this revised framework, the presence of a recognized psychiatric injury, either as intended by D or
as an outcome for C, is not necessary. Moreover, if evidence suggests that D's intention was to
improve C's well-being through their actions, albeit misguided, D would not meet the requisite
intent for liability under both the current and revised versions of the Wilkinson Tort. Ultimately,
D's intent must be to cause harm for the Wilkinson Tort to apply, regardless of the presence of
psychiatric injury.

Question 8: What are the types of intents that are recognized under English Law?
The intent element within the framework of the Current Wilkinson Tort encompasses a spectrum
of mental states, each with its nuances and implications.
i. Firstly, there is the concept of willful intent, where D actively desires to cause harm to C,
as evidenced by subjective actions aimed at producing such harm. This was evident in
Janvier v Sweeney, where D intended to terrify C for purposes of blackmail.
ii. Secondly, a lesser but still sufficient form of intent is imputed intent, where D may not
actually desire the harm but engages in behavior so likely to produce it that intent can be
imputed to D. In Wilkinson v Downton itself, Wright J stated 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]".
This concept, also termed objective recklessness or imputed intention by operation of law,
has been applied in cases like Wong case and Rhodes case. However, recent jurisprudence,
notably in Rhodes, has criticized and discarded this doctrine.
iii. Thirdly, subjective imputed intent, where D is considered to have intended the harm if they
knew it was likely to result from their actions. Despite its application in some cases, this
interpretation has led to ambiguity and inconsistency.
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iv. Furthermore, intent based on recklessness, where D acts without caring about the potential
harm to C, has been considered. While it proved useful in cases like C v D, post-Rhodes,
it has been deemed ineffective for establishing intent under the Wilkinson Tort.
v. Even lower on the spectrum is the notion of foreseeability, where deliberate conduct by D
is deemed to lead to alarm or distress to C (Wong case). However, this concept has been
largely rejected within the English legal framework, with courts favoring actual or inferred
intent.

Question 9: Suggestion proposed by the author regarding intent element?

In order to mitigate concerns regarding potential abuse and maintain a realistic framework, it is
essential to establish clear guidelines for intent within the Revised Wilkinson Tort, particularly if
it permits a lesser form of damage. With this objective in mind, it is proposed that intent should be
categorized into two distinct forms:
a. Firstly, intent may be deemed to exist if D demonstrates an actual intention to cause serious
emotional distress to C rather than recognized psychiatric injury, subjectively assessed based
on D's deliberate actions. OR
b. Secondly, inferred intent objectively assessed by considering various extrinsic factors such as
C’s age, the history of their relationship with D, the ease or difficulty for C to verify the
truthfulness of D’s statements, D’s demeanor when making the statements, as well as any
economic, physical, or social vulnerabilities on C’s part. In addition, the evaluation ought to
consider D's firsthand awareness of C's traits or inclinations that could make C more prone to
emotional distress, the quantity of people who participated in D's statements directed at C, the
effect on those who have a close emotional connection to C, and the frequency of D's
statements. These factors, drawn from precedents set by case law under the Current Wilkinson
Tort, provide a framework for inferring D's intent to cause emotional distress to C as a matter
of fact.

Question 10: Reforming causation element question?

i. Under the current Wilkinson Tort, two different procedures have been used to demonstrate
the causal relationship between D's words or actions and the injury that C suffered: the
weaker "material contribution" test and the stricter "but-for" causation test. For there to be
"but-for" causation, C must demonstrate that C would not have been harmed if D had not
said or done what they did. In English law, this approach has been used to prove causation
in relation to the Wilkinson Tort.
ii. In contrast, the "material contribution" test, explicitly endorsed and applied in the case of
C v D, derives from principles of negligence and breach of statutory duty, particularly the
Bonnington principle. This principle applies when D’s breach exposes C to a harmful agent,
contributing to the severity of C’s injury. In C v D, the court noted that D’s intentional
conduct was a material contribution to C’s mental harm, despite other contributing factors
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such as C’s personal characteristics and difficult family circumstances. Consequently,

damages were apportioned based on a common-sense assessment of D’s contribution to
C’s psychiatric condition. However, there is contention regarding whether the weaker
causal link established by the material contribution test should suffice under the Revised
Wilkinson Tort. Some argue that a strict "but-for" test should be required to maintain
doctrinal consistency and prevent a flood of claims. Furthermore, there are concerns
regarding the Bonnington principle's applicability in the context of emotional distress
claims because it has not been widely employed in negligence cases. Opponents contend
that allowing proportionate damages under the material contribution test could result in
inconsistent tort law, especially when it comes to cases involving pre-existing
psychological vulnerabilities or other situations that have an effect on mental health.
Compromises might still be required, though, particularly if emotional suffering does not
result in psychological harm.

Question 11: What are the reforms suggested by the author on ‘Reforming remoteness of
damages’
In the case of Wilkinson v Downton, Wright J deliberated on two pivotal aspects: (1) assessing
whether Mrs. Wilkinson’s suffering from Mr. Downton’s false tale was legally foreseeable and
consequential, emphasizing that the extent of harm does not dictate removability; (2) gauging the
reasonably foreseeable nervous shock in an individual of standard fortitude, thereby endorsing the
importance of normal fortitude in evaluating damages.
i. The issue arises concerning the relevance of remoteness in the Revised Wilkinson Tort.
The stance here is against its inclusion, supported by several doctrinal rationales. Firstly,
echoing Lord Woolf CJ's sentiments in Wainwright emphasizes that the Wilkinson Tort,
leaning closer to intentional torts than negligence, should not grapple with foreseeability
concerns. Aligning with trespassory torts such as battery and assault, which lack
foreseeability requirements, would streamline legal coherence.
ii. Eliminating reasonable foreseeability aligns the Revised Wilkinson Tort with trespassory
torts, enabling recovery for unforeseeable damage, a benefit absent in the Current
Wilkinson Tort. The statutory tort under the PHA 1997 also exemplifies scenarios where
foreseeability is not mandated, reinforcing equitable outcomes for intentional torts.
iii. The proposed framework of the Revised Tort, emphasizing strict but-for causation, allays
concerns of excessive liability. It accommodates claimants with pre-existing
vulnerabilities, integrating medical evidence for nuanced causation determinations. This
approach ensures fair and principled adjudication while upholding the intent-based
accountability inherent in intentional torts.
Question 12: What is the new defense introduced by the author in revised Wilkinson v
Downton?
In the context of the Current Wilkinson Tort, D can avoid liability if his actions or statements were
justified or had a reasonable excuse. This defense was exemplified in the case of Rhodes, where
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the publication of Mr. Rhodes’ autobiography was deemed justified due to its contribution to public
interest and his right to share his life story. It has been proposed that the burden of proving this
defense should lie with D. However, not all instances where D intends to cause emotional distress
to C should be considered actionable. While applying a defense of implied consent akin to that in
battery might seem artificial, appellate judges have hinted at such a concept. Hence, it is proposed
that a "not in the public interest to litigate" defense should be available under the Revised
Wilkinson Tort. Drawing the line between actionable and non-actionable instances may be
challenging and context-dependent, but it is a task courts are accustomed to. In modern society,
where hateful or demeaning statements can be disseminated easily via social media, this defense
becomes even more relevant. Examples from the workplace, such as managerial criticisms or
interpersonal rudeness, highlight scenarios where emotional distress may occur but may not
warrant legal action. Similarly, instances of horseplay or domestic disputes may fall within the
realm of non-actionable behavior.
Moreover, considering the principles of freedom of expression enshrined in the European
Convention on Human Rights (ECHR) Article 10, it is essential to balance the rights of individuals
against the need for legal restrictions. This balancing exercise should be consistent with the
Convention’s principles and should weigh the necessity of restricting D’s freedom of speech
against the harm caused to C. These proposed defenses, along with existing procedural safeguards
against abusive litigation, aim to ensure that genuine victims receive redress without encouraging
frivolous claims. Despite concerns about potential misuse of the legal system, procedural
mechanisms exist to address such issues without compromising substantive legal reforms.

Question 13: What were the facts of Rhodes v OPO case?

The legal case involved James Rhodes, a classical pianist, writer, and television filmmaker (the
defendant and appellant), concerning his book content. The book delves into detailed
autobiographical descriptions, including the sexual abuse Rhodes endured as a child, leading to
his subsequent struggles with depression, self-harm, and suicide attempts. Rhodes faced a claim
from his son (whose identity remains anonymous), represented by a litigation friend (initially his
mother and later his godfather). Expert opinions suggested that the book's publication could
potentially cause psychological harm to Rhodes' son.
In the Rhodes case, the release of Mr. Rhodes’ autobiography was deemed justifiable. This decision
was based on the belief that after enduring his suffering and coping with its consequences, he had
the right to share his experiences with the world. Furthermore, there existed a significant public
interest in allowing others to hear his life story, including its most intense and revealing aspects.
Question 14: What were the facts of Wainwright v Home Office?
During a prison visit in 1997, a mother and her son (referred to as the Claimants) were subjected
to strip searches for drugs, which violated Prison Rules and caused them humiliation and distress.
The son, who had mental impairments and cerebral palsy, developed post-traumatic stress disorder
(PTSD) as a result. The initial judgment found that both Claimants were victims of trespass to the
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person, infringing their privacy rights. Additionally, the judgment found that the son was also
subjected to trespass leading to harm, along with battery.
Question 15: What is your opinion regarding author’s view in ‘Modernizing Tort of Wilkinson
v Downton’?
In my opinion, the requirement "serious emotional distress" as a pre-requisite damage under the
Revised Wilkinson Tort is a balanced approach. It acknowledges the validity of mental harm claims
without mandating a recognized psychiatric injury, which can be challenging to establish since
there will be a thin line distinction between frivolous and meritorious claims. Additionally, it might
oppose the general notion upon which tort law operates i.e., opening floodgates. Nonetheless, with
the rapid growth in cyber crime cases, there is simultaneously a need to compensate the victims as
well for the social compatibility. To the extent of intent element, it is justified since limiting this
requisite to only actual and inferred intent would make the picture clear to understand and apply.
Moreover, current exceptions to prove traditional factual causation also demand revision since
these exceptions have muddied the water and application of strict but for test would be more certain
and predictable upholding the rule of law. In addition to this, proposal of a new defense of "non-
actionable in the public interest" under the Revised Wilkinson Tort is a prudent step towards
balancing legal redress and societal interests. This defense is compatible with the principles of
freedom of expression under Article 10 of the European Convention on Human Rights, ensuring
that legal developments in tort law.