1 Para

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.”

Comment;

Elements Retained; Intention, Bodily Harm, Serious Emotional Distress, Caused only by
statements directed to C.

2 Para

Potential impact of implementing reforms suggested in the article regarding the Revised
Wilkinson Tort. Here's an analysis:

1. Current Limitations of Tort Law: The statement argues that present tort law
inadequately addresses statements made with the intention of causing harm to the
claimant. Despite the longstanding existence of the Current Wilkinson Tort, it has seen
limited success in providing remedies for such situations.
2. Historical Success Rate: The Current Wilkinson Tort has seen only a few successful
outcomes over its more than 120-year history, which is considered very low. This
suggests that the tort has not been effective in providing redress for injured parties,
particularly in cases where the defendant's intent to cause harm is alleged.
3. Potential for Reform: The statement suggests that reforming the tort could make it
more relevant and significant in addressing modern societal conditions, especially
concerning statements made via social media and electronic communications with the
intent of causing serious emotional distress.
4. Recent Cases: The mention of two successful cases in the last decade, both involving
sexual impropriety by educators against students, indicates that the tort may have a
role to play in addressing issues of vulnerability and power imbalance, particularly in
certain sectors of society.
Overall, the statement argues for the importance of reforming the Wilkinson Tort to better
address contemporary challenges, particularly in light of the prevalence of harmful statements
disseminated through modern communication channels. It suggests that such reforms could
make the tort more effective in providing redress for victims of intentional harm.

4 Para

The Wilkinson Tort and the need for reform: Overall, the statement underscores the need for
reform of the Wilkinson Tort within the English legal framework, drawing on past judicial
decisions and experiences to guide potential improvements.

 Global Reach of the Tort: The Wilkinson Tort has been adopted in various common law
jurisdictions worldwide, demonstrating its widespread application.
 Focus on English Law: Despite its international presence, the article emphasizes the
importance of English case law and statutory enactments in shaping reform
recommendations for the Wilkinson Tort.
 Issues with the Tort: The tort has been plagued by uncertainty, obscurity, and sparse
usage in English jurisdiction. Judicial commentary, including descriptions of the tort as
"peculiar," indicates shortcomings that have hindered its effectiveness.
 Previous Attempt at Reform: The Supreme Court's decision in Rhodes v OPO in 2015
attempted to redefine elements of the tort, providing a basis for reform efforts.
However, even with this attempt, the tort still faced challenges, suggesting the need for
further refinement.
 Learning from Failures: Despite many cases failing to meet the tort's elements, such as
the example of BVC v EWF in 2019, lessons can be gleaned to inform future reform
efforts.
 Call for Reform: Ultimately, the statement concludes that the Current Wilkinson Tort
has limited utility in its current form, but there exists a gap in English law that could be
filled through its re-fashioning and modernization

Para 5

Thomas Wilkinson, a publican, left his wife, Lavinia Wilkinson, in charge of their pub while he
attended a race on April 9, 1896. A regular customer, Mr. Downton, played a cruel joke on
Lavinia by falsely informing her that her husband had been severely injured in an accident. He
claimed Thomas was hospitalized with serious injuries. Distraught, Lavinia sent others to find
him but he had returned safely. However, the shock caused Lavinia to become seriously ill,
suffering physical symptoms and requiring medical treatment. She sued Downton, recovering
costs incurred for a fruitless journey under the tort of fraudulent misrepresentation (deceit).
and receiving damages for psychiatric harm (Without Precedent) This case established a new
cause of action, paving the way for future legal precedent

Para 6

Overall, Lord Hoffmann's evaluation suggests that the emergence of the Wilkinson Tort was
influenced by a nuanced interplay of legal precedent and judicial innovation in response to
evolving societal attitudes towards compensating psychiatric harm.

 Accident of Legal History: Lord Hoffmann characterizes the Wilkinson Tort as a product
of legal history and timing. He suggests that its emergence was influenced by preceding
legal decisions and societal attitudes towards compensating psychiatric harm.
 Preceding Cases: Lord Hoffmann references the 1888 case of Victorian Railway
Commissioner v Coultas, where psychiatric injury was deemed too remote to be
compensable in negligence. However, this stance departed from in the 1901 case of
Dulieu v White, where negligently inflicted psychiatric injury was allowed.
 Creation of the Wilkinson Tort: The Wilkinson v Downton case in 1897 presented a
challenge for the court. While Mr. Downton did not intend to cause Mrs. Wilkinson's
psychiatric injury, traditional negligence principles didn't allow for recovery. Wright J
devised a rule of inflicted psychiatric injury based on an "imputed intention," as D's
practical joke was calculated to cause harm.
 Imputed Intention and Negligence: Lord Hoffmann notes that Wright J's concept of
"imputed intention" in the Wilkinson Tort straddles the boundary between intentional
harm and negligence. It closely resembles negligence but operates within the
constraints set by precedents like Coultas.

Para 7

Overall, the evaluation acknowledges the ongoing relevance of the Wilkinson Tort within the
legal landscape, particularly in scenarios resembling Wilkinson v Downton. However, it
highlights the tort's struggle to achieve success in many cases, despite its continued existence
Statement underscores the enduring presence of the Current Wilkinson Tort despite the
evolution of negligently-inflicted psychiatric injury for secondary victims:

 Survival Amidst Legal Evolution: Despite the modern recognition of negligently-inflicted

psychiatric injury for secondary victims, the Current Wilkinson Tort has persisted. This is
particularly relevant as scenarios resembling Wilkinson v Downton, where a close tie of
love and affection exists between the primary and secondary victim, are akin to
secondary victim claims.
 Continued Existence: Contrary to the notion that the Wilkinson Tort has been eclipsed
by developments in the law of negligence, it remains a viable cause of action. It hasn't
been subsumed by negligence law but rather coexists alongside it.
 Limited Success: While the Wilkinson Tort continues to exist and is invoked in various
scenarios, it has encountered limited success in most cases. Despite its availability, it has
often failed to deliver favorable outcomes for claimants.

Para 8
Need for the Revised Wilkinson Tort emphasizes three key reasons why law reform in this area
is deemed necessary:

Firstly, Coverage Gap in Existing Torts: The Revised Wilkinson Tort aims to fill a gap left by
other torts, particularly in cases of harassing incidents arising from speech. Existing torts such
as those under the Protection from Harassment Act 1997 may require a course of conduct or
possess limitations that prevent redress for certain one-off events or individual acts.
 Limitations of Current Tort Laws: Other torts like private nuisance, defamation, battery,
assault, and injurious falsehood each have their own limitations that may prevent
adequate redress for emotional distress caused by certain types of harmful behavior.
For instance, battery requires direct application of force, while defamation may not
cover threatening statements or those made without publication.
 Unique Focus of the Revised Tort: The Wilkinson v Downton tort focuses on emotional
distress caused by intentional acts, a type of harm distinct from those addressed by
other torts such as negligence. Negligently-inflicted psychiatric injury, for example,
requires proof of recognized psychiatric injury and may involve a different duty of care.

Hence, Revised Wilkinson Tort is needed to address the shortcomings and limitations of existing
tort laws, particularly in providing redress for emotional distress caused by intentional acts that
may not be adequately covered by other legal avenues
Para 9
Secondly inadequacy of criminal law in providing redress for the types of harm addressed by
the Revised Wilkinson Tort: It falls within the crime of violence while the wilkinson does not fall
within it.

 Secondly, the insufficiency of criminal law in compensating for the kinds of harm
addressed by the Revised Wilkinson Tort is evident. The compensation provided by the
Criminal Injuries Compensation Fund is designed for mental injuries resulting from
"crimes of violence." However, the nature of harmful statements addressed by the
Revised Wilkinson Tort may not align with this criterion, leaving victims ineligible for
compensation from this fund.
 Additionally, while specific criminal offenses, such as the disclosure of private sexual
photographs with the intent to cause distress, have been legislated, they may not offer
financial compensation to victims for the harm they endure, despite punishing the
perpetrators. Overall, this assessment suggests that criminal law mechanisms, including
compensation funds and specific offenses, fail to adequately address the types of harm
addressed by the Revised Wilkinson Tort.

Consequently, there is a need for civil law reform to ensure victims of intentional harm,
especially those affected by emotional distress from harmful statements, receive proper
redress.

Para 10

Thirdly, the need for reform of the Wilkinson Tort in light of modern technological
advancements and changes in societal dynamics:

 Impact of Social Media: With the widespread use of social media platforms and digital
communication channels, individuals have greater opportunities to disseminate
statements that can cause serious emotional distress to others. The prevalence of
humiliating TikTok posts and other forms of online harassment underscores the need for
legal mechanisms to address these modern challenges.
  Shift in Legal Precedent: While the Wilkinson Tort has seen limited success historically,
recent cases, such as the first-ever "sexting case" in English law, highlight its potential to
provide redress for victims of emotional harm. However, the requirement for victims to
demonstrate recognized psychiatric injury under the Current Wilkinson Tort poses a
barrier to justice.
 Call for Reform: The evolving nature of online threats and coercion suggests that the
Wilkinson Tort should be revised to better accommodate the realities of the modern
world. Academic critiques have highlighted the tort's limitations in addressing victims
who are coerced into sending sexual correspondence or images. However, the article
contends that with refinements, the tort could empower victims and provide them with
stronger legal recourse.
 Opportunity for Reform: Reforming the substantive cause of action of the Wilkinson
Tort, along with the development of online court systems, presents a real opportunity
for victims to seek redress for serious emotional distress caused by intentional
statements and threats.

Overall, the evaluation advocates for reforming the Wilkinson Tort to align with contemporary
challenges posed by digital communication platforms and to provide effective redress for
victims of intentional harm in the modern world.

Para 11

The evaluation of the statement focuses on the legal characterization of the Wilkinson Tort and
the requirement for proof of damage:

 Action on the Case vs. Trespass to the Person: The Current Wilkinson Tort has
traditionally been classified as an action on the case rather than a trespass to the
person. This distinction becomes relevant when considering the element of remoteness.
However, for the Revised Wilkinson Tort, it is acknowledged that like its predecessor, it
will not be actionable per se but will require proof of damage.
 Requirement for Proof of Damage: In Wilkinson v Downton, Wright J emphasized that
the claimant must demonstrate that the defendant infringed their legal right to personal
safety and caused physical harm. However, subsequent interpretations, such as in the
Wainwright case, have clarified that "physical harm" also encompasses psychiatric harm.
This broad interpretation expands the scope of potential damages recoverable under
the tort.
Overall, the evaluation underscores the requirement for proof of damage in both the Current
and Revised Wilkinson Torts. Despite being characterized as an action on the case, the tort
allows for recovery of damages for both physical and psychiatric harm, as clarified by judicial
interpretation.

Para 12
Aspect of bodily harm within the context of the Current Wilkinson Tort:

5. Rare Occurrence of Bodily Harm Claims: While bodily harm resulting from the
defendant's intent to cause such harm is theoretically claimable under the Current
Wilkinson Tort, it has seldom been observed in case law. This indicates that such claims
are infrequent or have not been successful.
6. Nature of Bodily Injury: Bodily injury under the Current Wilkinson Tort is considered
"indirect" and typically "consequential." Unlike trespassory torts like battery and assault,
where bodily injury arises directly from the defendant's actions, in the Wilkinson Tort,
bodily harm is usually a secondary consequence of the primary harm, which is mental
harm.
7. Focus on Mental Harm: The primary focus of the Current Wilkinson Tort and the
discussion at hand lies on "pure" mental harm. Successful claims under this tort have
primarily centered around mental harm, with bodily harm often accompanying
intentionally inflicted mental harm. However, claims solely for bodily injury have faced
challenges in meeting the de minimis threshold for damages recovery.
8. Challenges in Establishing Bodily Injury: Some cases have failed to prove actionable
bodily injury, either due to insufficient medical evidence or the inability to demonstrate
a direct causal link between the defendant's conduct or statements and the claimant's
physical injuries.

In essence, while bodily harm is theoretically claimable under the Current Wilkinson Tort,
successful claims have predominantly focused on mental harm, with bodily harm being a
secondary and consequential aspect of the harm suffered by the claimant.

Para 13

The evaluation of the statement focuses on the threshold for actionable damage
(To be actionable the damage has to be more than negligible. Damages. are given for injuries
that cause harm, not for injuries that are harmless).
revolves around the threshold for actionable damage in the Current Wilkinson Tort and
proposed changes in the Revised Tort:

 Threshold for Actionable Damage in the Current Tort: Similar to negligence, the
Current Wilkinson Tort necessitates proof of recognized psychiatric injury as a crucial
element for damages recovery. This requirement aligns with judicial descriptions of
actionable damage as a condition with a recognized diagnostic label, such as clinical
depression or post-traumatic stress disorder.
 Proposed Changes in the Revised Tort: The Revised Wilkinson Tort suggests a departure
from the strict requirement of recognized psychiatric injury. Instead, it proposes that
"serious emotional distress" would suffice as the minimum threshold for actionable
harm. This change broadens access to redress for victims, allowing claims for emotional
distress without the strict requirement of recognized psychiatric injury.
 Judicial Opinions and Law Reform Support: Some English appellate judges and
academic and law reform sources have supported the idea of recognizing a lesser form
of mental harm under the Current Wilkinson Tort. Lord Hoffmann, in particular,
highlighted the policy differences between torts of intention and those based on
negligence, suggesting that compensation for distress caused by intentional harm
should not be excluded.
 Consideration of Reform from Medical and Legal Perspectives: The evaluation
emphasizes the need to consider the case for reform through both medical and legal
lenses. The insistence on recognized psychiatric injury under the Current Wilkinson Tort
is viewed as flawed under both perspectives.

Overall, the evaluation underscores the argument for reforming the threshold for actionable
damage in the Wilkinson Tort, suggesting that recognition of serious emotional distress as
sufficient grounds for legal action would better align with the principles of justice and fairness.

Para 14

The evaluation of the statement discusses the blurred distinction between emotional distress and
recognized psychiatric injuries from a psychiatric perspective:

 Complexity of the Distinction: Psychiatrists argue that the distinction between

emotional distress, anxiety, and recognized psychiatric injuries like depression or post-
traumatic stress disorder is not as clear-cut as depicted in common law. The common
law's delineation may oversimplify the complexity of psychological conditions.
  Medical Perspective: The British Medical Association highlights that there is no abrupt
transition where ordinary distress suddenly becomes a psychiatric illness. This
perspective suggests a continuum of psychological distress rather than a distinct
threshold between emotional distress and psychiatric injury.
 Court Recognition: Courts have acknowledged this viewpoint. In the case of Dickie v
Flexcon Glenrothes Ltd, the court recognized that anxiety and psychiatric harm share
similar etiology and symptoms. The distinction between them may seem artificial, as
both conditions stem from similar origins and exhibit overlapping symptoms.
 Focus on Actual Suffering: The evaluation emphasizes that the focus should be on the
actual suffering experienced by the individual rather than on rigid labels or distinctions.
Victims of harassment should be entitled to damages based on the extent of their
suffering, rather than solely on whether their condition fits a specific diagnostic label.

Overall, the evaluation underscores the need to consider the complexity of psychological conditions and the
continuum of distress when assessing damages for mental harm. It suggests that a nuanced approach, focusing
on the individual's suffering rather than strict legal classifications, may better serve justice in cases involving
psychological injuries.

Para 15

The evaluation discusses the historical evolution of psychiatric nosology and its impact on the
distinction between anxiety and depression:

9. Historical Perspective: Medical scholars highlight that until the 1970s, anxiety and
depression were viewed within the non-psychoanalytic psychiatric community as
different expressions of a single affective spectrum disorder.
10. Pharmacological Innovation: The rise of psychopharmacology in the 1950s introduced
drugs with specific antidepressant and anxiolytic effects, leading to a perceived
dichotomy between depression and anxiety. Pharmacological advancements supported
the notion that anxiety disorders were distinct from other, more severe conditions.
11. DSM-III Influence: During the development of the third edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-III) in 1980, separate advisory committees
were tasked with drafting sections on depressive and anxiety disorders. This
organizational structure contributed to the inclusion of anxiety and depression as
entirely separate disorders in the DSM-III.

Overall, the evaluation highlights the role of pharmacological innovation and the organizational
structure of psychiatric classification systems in shaping the perceived distinction between
anxiety and depression. This historical context underscores the complexity of understanding
and categorizing mental health conditions.

Para 16

The evaluation examines medical scholars' criticisms of the categorization approach in DSM-III
and DSM-IV, noting the high comorbidity (the simultaneous presence of two or more diseases
or medical conditions in a patient) between anxiety and depressive disorders and the challenge
of distinguishing them. It highlights DSM-5's shift towards a more nuanced understanding of
psychiatric disorders, acknowledging their variability. This change suggests that legal
frameworks, particularly English common law, may need to reconsider their rigid distinctions
between emotional distress, anxiety, and psychiatric injuries in light of evolving medical
insights. Overall, the evaluation emphasizes the importance of aligning legal definitions with
current medical understanding to address mental health issues more effectively.

Para 17

The evaluation discusses how features of "generalized anxiety disorder" outlined in the DSM-V
could indicate the type of "serious emotional distress" that might trigger the Revised Wilkinson
Tort. These features include excessive distress that significantly interferes with psychosocial
functioning, has a pervasive and prolonged duration, impairs important areas of functioning,
and is accompanied by physical symptoms like irritability or disturbed sleep. It suggests that
when assessing whether a claimant has suffered the required mental harm, factors such as the
severity of cognitive impairment, duration of impairment, required medical care, impact on
social or employment functioning, and presence of physical symptoms should be considered.
This analysis provides guidance on identifying and evaluating mental harm in the context of the
Revised Wilkinson Tort.

Para 18 Legal Perspective

The argument for permitting recovery for something less than a recognized psychiatric injury in
intentional torts like the Wilkinson Tort is strong for several reasons. Firstly, intentional torts
involve deliberate actions by the defendant, making them fundamentally different from
negligence. Therefore, holding the defendant accountable for intentionally caused harm is
justifiable, as highlighted by Lord Hoffmann in Hunter v Canary Wharf and reiterated in Rhodes.
Secondly, many intentional torts already allow recovery for emotional distress, even in the
absence of physical injury. Examples include battery, assault, false imprisonment, and malicious
prosecution. The Current Wilkinson Tort's requirement for a recognized psychiatric injury
contrasts with these torts, creating inconsistency within the legal framework.

Thirdly, various statutory torts also permit recovery for emotional distress resulting from
intentional wrongful conduct. For instance, the Protection from Harassment Act 1997 includes
provisions for compensation for distress caused by harassing behavior. Similarly, other statutory
torts addressing intentional discriminatory practices provide compensation for injury to feelings
amounting to distress.

Furthermore, aligning the threshold of damage with the intent requirement in the Revised
Wilkinson Tort would ensure consistency with existing legal regimes and other intentional torts.
However, it's essential to avoid compensating every trivial or transient emotional distress caused
by the defendant's intentional actions. Therefore, incorporating a de minimis threshold for
assessing "serious emotional distress" would maintain doctrinal coherence while preventing
excessive litigation over minor grievances.

Reforming the conduct element

The expansion of the Current Wilkinson Tort in English law has broadened its scope to
encompass various types of conduct that can trigger the tort. These include situations where false
information is conveyed, threats are made, or intentional acts are committed with the aim of
causing harm to the victim. Such acts range from releasing a guard dog to conducting a strip
search, demonstrating the tort's evolution beyond its initial focus on false statements.

However, this expansion has sparked judicial disquiet, with calls to limit the tort to cases
involving distressing statements. Lord Neuberger, in Rhodes, advocated for such a restriction,
echoing sentiments expressed in extrajudicial commentary and earlier legal precedents.
Consequently, there arises a question regarding whether intentional conduct, devoid of
accompanying statements, should still fall within the purview of the Revised Wilkinson Tort.

On balance, the author argues against including intentional conduct without statements in the
Revised Wilkinson Tort. Instead, the focus should be on D's statements intended to inflict
emotional distress on C. The term "statements" should be broadly construed to encompass
various forms of communication, including verbal, written, visual, and digital. This approach
ensures that the tort remains relevant in modern contexts, such as instances of grooming behavior
through social media messaging.
Overall, the proposed refinement of the tort to center around intentional statements aligns with
calls for clarity and coherence in its application, while still addressing the evolving landscape of
intentional harm in communication.
The argument against restricting the Revised Wilkinson Tort solely to cases involving statements raises valid
concerns about potential gaps in legal coverage. However, the author contends that most cases involving
reliance on D's conduct under the current tort have also involved statements. Therefore, by focusing on
statements, the Revised Wilkinson Tort would still encompass the majority of scenarios where intentional
harm is inflicted.

For those rare instances where D's conduct causes harm without accompanying statements, the author suggests
recourse to other compensatory remedies such as assault, battery, or statutory torts under the Protection from
Harassment Act 1997. This approach ensures that victims have alternative avenues for seeking redress for
intentional harm caused by conduct alone.

Returning the tort more closely to its original focus on statements aligns with the preferences of some judges
and maintains doctrinal consistency. By delineating between physical actions and statements, the Revised
Wilkinson Tort would provide clarity and coherence in its application.

Overall, while concerns about potential gaps in coverage are valid, the proposed reform offers a pragmatic
solution by redirecting cases involving conduct without statements to other legal avenues while maintaining
the tort's focus on intentional harm through communication.

Directed Statement
The scenario involving Mr. Downton's practical joke raises questions regarding the applicability of the Revised
Wilkinson Tort in cases where statements or threats are relayed to the victim indirectly through a third party.
The first question pertains to whether D's statement must be addressed directly to C in person. For instance, if
Mr. Downton had shared the joke with a barmaid, who then conveyed it to Mrs. Wilkinson, would he still be
liable?

Under the Revised Wilkinson Tort, the concept of a "distant victim" becomes relevant. This refers to situations
where D's statement or threat, though not made directly in the presence of C, is intended to cause emotional
distress to C and is relayed by a third party. While such cases have been rare and regarded as exceptional in
Commonwealth case law, they should not be dismissed outright under the Revised Wilkinson Tort. This is
particularly relevant in today's digital age, where threats or false statements can easily propagate through social
media and electronic communications.

Considering the modern reality of chain-like communications, it's reasonable to include indirect relay of
statements or threats within the purview of the Revised Wilkinson Tort. However, the role of the third party
intermediary becomes legally significant, as their actions may exacerbate C's emotional distress. This aspect
pertains more to the issue of causation rather than the conduct element of the tort.

In essence, while the Revised Wilkinson Tort may extend liability to cases involving indirect communication
of statements or threats, careful consideration of the role of intermediaries and their impact on causation is
essential in determining liability.
The question of whether D's statement must be directed to C as an individual or as part of a
group has led to a notable divergence of judicial opinion within the context of the Current
Wilkinson Tort. Instances have arisen where D's statements were not specifically aimed at C
individually, but rather at a group, leading to varying judicial responses.

In cases like Breslin v McKenna, where warnings about a bomb detonation were not directed
towards any specific individuals among the claimants, the Wilkinson Tort was not successful.
However, there was little discussion about whether the tort was appropriate in such scenarios, as
the statements concerned the public-at-large. Conversely, in Rhodes, explicit consideration was
given to this point. Despite the dedication of the autobiography to a specific individual, the
content was intended for a wide audience and not specifically directed towards the individual,
making it non-actionable.

The majority opinion in Rhodes suggested that the Wilkinson Tort could be triggered when D's
statements are directed to a group, even if large, but not to the public-at-large. However, there
remains ambiguity as Lord Neuberger preferred that D's statement should target C as a particular
individual or a relatively small group. This unresolved point continues to be arguable within the
framework of the Current Wilkinson Tort.

In essence, the issue of whether D's statement must be directed at C individually or as part of a
group remains contentious and subject to interpretation within the current legal framework.
The suggestion that D's statements should be directed specifically to C, either as an individual
or as a member of a small and identifiable group, holds merit within the framework of the
Revised Wilkinson Tort. This proposal serves several crucial purposes:

Appropriate Quid Pro Quo: By limiting liability to narrowly-directed statements, the Revised
Wilkinson Tort establishes a balanced exchange. It allows for a lesser form of damage while still
holding D accountable for intentional harm. This alignment ensures that the tort maintains
integrity and fairness in its application.
Realism in Modern Communication: In today's digital age, statements, threats, and information
can be disseminated widely through social media platforms and electronic communications.
Attempting to address every potential claimant who may be affected by such communication,
but is not specifically targeted, would be unrealistic. Focusing liability on statements directed
towards C individually or as part of a small group acknowledges the practical limitations of
contemporary communication mediums.

This reform suggestion creates a necessary boundary for liability under the Revised Wilkinson
Tort, ensuring that it remains applicable and fair in the context of modern societal norms and
communication dynamics.
False Statement and Intermediate Act
Under the Revised Wilkinson Tort, the primary focus is on the direct impact of D's statements
on causing emotional distress to C. This is evident in cases where false statements by D directly
result in harm to C, such as when Mr. Downton falsely informed Mrs. Wilkinson about her
husband's grave injury, or when Mrs. Wong was threatened by her colleagues with physical
retaliation.

However, there are instances where a false statement by D may not directly lead to emotional
distress for C. Instead, the false statement creates an opportunity for a third party (TP) to
engage in harmful acts that cause distress to C. In such cases, D's action is more akin to an
omission, where D's statement facilitates harm by a TP rather than directly causing distress to
C.

A classic example is seen in W v Essex CC, where foster parents were not injured by the
misinformation provided by the Council's officer about a foster child. Instead, their distress
stemmed from the consequences of allowing the foster child into their home, leading to the
child sexually molesting their own children. In such cases, applying the Revised Wilkinson Tort
would not be appropriate.

Therefore, while the Revised Wilkinson Tort focuses on the direct impact of D's statements on
C's emotional well-being, it should not extend to scenarios where the distress is caused by the
actions of third parties facilitated by D's false statements. In these cases, the responsibility lies
with the TP's actions rather than D's statements, and thus, they should not be actionable under
the Revised Tort.

Excusing D’s Conduct

Reversing the burden of proof regarding justification or reasonable excuse under the Revised
Wilkinson Tort presents several advantages.

Firstly, aligning the burden of proof with the PHA 1997's statutory tort would enhance
consistency within the legal framework. The PHA 1997 already provides for statutory defenses
similar to "justification or reasonable excuse," with the burden of proof placed on the defendant.
By adopting a similar approach in the Revised Wilkinson Tort, legal coherence is achieved,
simplifying the application of the law across different contexts.
Secondly, in line with established legal principles, shifting the burden of proof to the defendant
is doctrinally clearer. In trespassory torts such as assault and battery, defendants are typically
tasked with proving defenses such as consent, lawful justification, or necessity. This precedent
underscores the appropriateness of placing the burden on D to demonstrate the justification or
reasonable excuse for their statements or conduct in the Revised Wilkinson Tort.

Overall, reversing the burden of proof in this manner not only promotes consistency within the
legal system but also ensures clarity and fairness in adjudicating cases involving emotional
distress caused by D's actions or statements

Reforming The Intent Element

Clarifying the intent element in the Revised Wilkinson Tort is crucial to providing clarity and
coherence in its application.

In the current state of the law, there has been ambiguity surrounding what D must intend under
the Wilkinson Tort. The Supreme Court's decision in Rhodes emphasized that D must have
intended either to cause C a recognized psychiatric injury or to cause serious emotional distress,
which subsequently led to psychiatric injury. This broadened standard of intent, compared to the
original Wilkinson v Downton ruling, reduced the burden of proof on C and expanded the scope
of potential liability for D.

However, under the Revised Wilkinson Tort, the focus shifts to whether D intended to cause C
emotional distress, without the necessity of proving a recognized psychiatric injury. This
clarification simplifies the intent requirement, making it clear that D's aim must be to cause harm
to C emotionally. Additionally, if D's intent was not to cause harm but rather to improve C's
well-being, even if misguided, the tort would not apply under both the current and revised
versions.

By removing the ambiguity surrounding the intent element, the Revised Wilkinson Tort provides
a more straightforward framework for determining liability, ensuring that D's culpability is based
on the deliberate intention to cause emotional harm to C.

INTENT ON A SPECTRUM; The Possibilities

The evaluation of intent in the Wilkinson Tort showcases a shift from a narrow understanding of
intent to a more nuanced interpretation, particularly regarding imputed intent:
Traditional Understanding of Intent: Initially, intent was straightforward, requiring D to
actually desire to cause harm to C. Cases like Janvier v Sweeney exemplified this requirement,
where there was clear intention to terrify for blackmail purposes.
Introduction of Imputed Intent: Over time, a broader interpretation of intent emerged,
allowing for imputed intent. This concept suggests that even if D did not actually intend harm,
their actions were so likely to cause harm that intent could be imputed to them. However, the
application of imputed intent led to confusion and inconsistency.
Subjective Analysis of Imputed Intent: Some courts analyzed imputed intent subjectively,
considering whether D knew harm was likely to result from their actions. This approach created
ambiguity, especially in cases where D's actions were reckless rather than intentionally harmful.
Rejection of Imputed Intent by Operation of Law: The Supreme Court in Rhodes rejected the
notion of imputed intent by operation of law, stating it has no proper role in modern tort law.
Instead, the court favored imputed intention as a matter of fact, where intent is inferred from the
circumstances surrounding D's actions.
Preference for Imputed Intent as a Matter of Fact: The Supreme Court preferred inferring
intent from factual circumstances, allowing for a more flexible and contextually sensitive
approach. This approach enables the consideration of D's behavior and its likely impact on C in
determining intent.
Application in Recent Cases: Imputed intent as a matter of fact has been applied in recent cases
like C v WH and MXX v A Secondary School, where D's actions were likely to cause emotional
distress to C.

Overall, the evolution of intent in the Wilkinson Tort highlights the complexity of determining
culpability for emotional harm and the need for a nuanced approach that considers the specific
circumstances of each case
 Lord Hoffmann introduced the concept of recklessness as a form of intent in Wainwright,
where D acted without caring whether harm to C would occur. Recklessness involves D's
disregard for the potential harm caused to C, even if D did not specifically intend to cause
harm.
 In C v D, Field J recognized recklessness as a valid form of intent under the Wilkinson
Tort, particularly when it was not likely that C's harm would occur but D's actions were
reckless regarding such harm.
The case of C v D involved a headmaster's actions towards a pupil, where the harm
caused was not intended but was a result of reckless behavior.
However, the Supreme Court in Rhodes unanimously rejected recklessness as insufficient
for the Current Wilkinson Tort, despite its acknowledgment in C v D.
The term "recklessness" was deemed too slippery and difficult to define easily, leading to
its rejection post-Rhodes.
  Another form of intent suggested in Wong involved deliberate conduct by D that would
foreseeably lead to alarm or distress to the claimant.
This form of intent, although related to foreseeability, was discounted as insufficient
under the Current Wilkinson Tort by English Courts of Appeal and was not approved by
the Supreme Court in Rhodes.
The preferred forms of intent in the Wilkinson Tort are actual intent or inferred intent as a
matter of fact, as established in Rhodes.

 The discussion on intent in the Wilkinson Tort encompasses a wide range of mental
states, from actual intent to what is foreseeable, highlighting the complexity of
determining culpability for emotional harm.

Suggestion for the revised Wilkinson v Tort

The evaluation proposes stringent criteria for establishing intent under the Revised Wilkinson
Tort, aiming to prevent potential floodgate concerns while maintaining realism:

 Two Forms of Intent: Intent under the revised tort is suggested to manifest either as an
actual intention to cause serious emotional distress to the claimant, subjectively
assessed, or as an inferred intention objectively assessed based on extrinsic facts.
 Subjective and Objective Assessment: The proposal involves considering both the
subjective state of mind of the defendant and objective factors surrounding the
interaction between the parties. These factors include the relationship between the
parties, the defendant's demeanor, the claimant's vulnerability, and the context of the
statements made.
 Clear Criteria: The suggested factors provide clear guidelines for inferring intent,
derived from existing case law under the Current Wilkinson Tort. They cover various
aspects of the relationship between the parties and the circumstances surrounding the
defendant's actions, ensuring a comprehensive assessment of intent.
  Stringent Requirements: The evaluation emphasizes that only these two types of intent
should suffice under the Revised Wilkinson Tort, indicating a high threshold for
establishing intent to cause emotional distress. This approach aims to prevent frivolous
claims while allowing legitimate cases to proceed.

Overall, the proposed criteria for establishing intent under the Revised Wilkinson Tort seek to
strike a balance between preventing abuse of the legal system and ensuring justice for
claimants who have genuinely suffered emotional distress due to intentional actions.

Reforming ‘consequence element’

The evaluation delves into the contentious issue of causation within the context of the Revised
Wilkinson Tort, proposing stricter criteria for establishing causation:

 Current Standard: Under the Current Wilkinson Tort, both the "but-for" causation test
and the weaker "material contribution" test have been applied. The latter allows for
proportionate damages if the defendant's actions materially contributed to the
claimant's harm, even if other factors also played a role.
 Controversy: The evaluation highlights the controversy surrounding the weaker causal
test, particularly in cases where multiple factors contribute to the claimant's harm. It
questions whether this weaker causal link should suffice under the Revised Wilkinson
Tort, especially considering the difficulty in attributing mental harm to a specific event.
 Stricter Approach: The evaluation suggests that a stricter "but-for" test should be
required under the Revised Wilkinson Tort. This approach would necessitate the
claimant to prove that, had the defendant's words or conduct not occurred, the harm
would not have occurred either. This stricter standard aims to ensure a clearer and
more direct causal link between the defendant's actions and the claimant's harm.
 Argument for Stricter Test: The evaluation presents two main reasons for advocating
the stricter causal test: first, to prevent recovery when serious emotional distress would
likely have occurred regardless of the defendant's actions, and second, to maintain
consistency and clarity within the legal framework.

Overall, the evaluation raises important considerations regarding the appropriate standard of
causation under the Revised Wilkinson Tort, suggesting a move towards a stricter but-for test to
establish a more direct link between the defendant's conduct and the claimant's harm.
The evaluation critically assesses the potential implications of maintaining the material
contribution test within the context of the Revised Wilkinson Tort:
  Causal Connection and Floodgates Concerns: The evaluation argues that a strict causal
connection is necessary to prevent floodgates of claims, especially considering the lower
threshold for damages in cases involving emotional distress. Allowing a weaker causal
theorem could potentially lead to an influx of claims, thus necessitating caution.
 Consistency with Negligence Tort: It suggests that doctrinal consistency should be
maintained, pointing out that the Bonnington theorem, which allows for proportionate
damages based on material contribution, has not been expansively applied in negligence
torts. Therefore, applying a similar viewpoint to the Revised Wilkinson Tort would
ensure coherence within the legal framework.
 Concerns with Fractional Damages: The evaluation raises concerns about the
acceptance of fractional damages, citing the rejection of such a concept in English Tort
law. It questions the fairness of allowing proportionate damages in cases where multiple
factors contribute to the harm, especially when compared to the stricter standards
applied in other areas of law.
 Compromises and Threshold of Injury: While acknowledging the need for compromises,
especially given the reduced threshold for injury, the evaluation emphasizes the delicate
balance required in determining whether to permit the material contribution test in the
Revised Wilkinson Tort.

Overall, the evaluation presents a nuanced perspective on the potential implications of

maintaining the material contribution test within the Revised Wilkinson Tort, highlighting the
need for careful consideration of its impact on legal principles and fairness to claimants.

Reforming Remoteness of Damage

The evaluation scrutinizes the remoteness element within the context of the Current Wilkinson
Tort:

 Two Sub-Parts of Remoteness: It delineates the two sub-parts of remoteness:

reasonable foreseeability of the relevant damage and the normal fortitude rule. These
elements are deemed applicable within the framework of the Current Wilkinson Tort.
 Application in Wilkinson v Downton: The evaluation highlights Wright J's explicit
consideration of these matters in Wilkinson v Downton, particularly concerning whether
the harm suffered by Mrs. Wilkinson was too remote to be attributed to Mr. Downton's
 actions and whether her nervous shock was reasonably foreseeable in a person of
normal fortitude.
 Endorsement of Normal Fortitude Rule: It notes that the passage in Wilkinson v
Downton endorsed the normal fortitude rule, a principle that was confirmed in dicta in
Page v Smith. This rule dictates that damages are foreseeable if they would affect a
person of normal fortitude, regardless of the claimant's own mental fortitude.
 Foreseeability and Compensability: The evaluation elucidates that mental harm is
compensable under the Current Wilkinson Tort only if it is foreseeable in a person of
normal fortitude. If the occurrence of mental harm is unforeseeable or highly
idiosyncratic in such a person, then the damage may not be compensable.

Overall, the evaluation provides a comprehensive analysis of the remoteness element within
the Current Wilkinson Tort, emphasizing its significance in determining the compensability of
mental harm and its alignment with legal principles concerning foreseeability and normal
fortitude.

The evaluation presents arguments against the inclusion of remoteness as a factor in the
Revised Wilkinson Tort:

12. Incompatibility with Intentional Tort Doctrine: The author aligns with Lord Woolf's
perspective in Wainwright, suggesting that the Wilkinson Tort is more akin to intentional
torts like trespass than to negligence. In intentional torts, issues of foreseeability are not
as relevant as in negligence, making the inclusion of remoteness uncomfortable
doctrinally.
13. Consistency with Trespassory Torts: Removing the requirement of reasonable
foreseeability of damage would harmonize the Revised Wilkinson Tort with trespassory
torts such as battery and assault, where such a requirement does not exist. This
consistency strengthens the argument for eliminating remoteness from the Revised
Tort.
14. Focus on D's Intent: The author contends that in intentional torts, the focus should be
on the defendant's intent to cause harm rather than the foreseeability of the harm.
Drawing parallels with the PHA 1997, which does not require foreseeable damage for
liability, the author argues that D should be held accountable for their intent regardless
of foreseeability.
15. Ring-Fence of Strict Causation: The proposal for strict but-for causation in the Revised
Wilkinson Tort helps mitigate concerns about floodgates by ensuring a clear causal link
between D's actions and C's harm. Additionally, the author suggests that pre-existing
 vulnerabilities of claimants would still be considered in determining causation under the
Revised Tort.

Overall, the evaluation provides compelling reasons why remoteness should not be a factor in
the Revised Wilkinson Tort, emphasizing doctrinal consistency, alignment with other intentional
torts, and the focus on D's intent rather than foreseeability.

A new defense
Under the Current Wilkinson Tort, individuals (D) can avoid legal liability if they can justify or
provide a reasonable excuse for their words or actions. In the Rhodes case, Mr. Rhodes'
publication of his autobiography was considered justified because of his personal struggles and
the public interest in hearing his story. There's a suggestion that the burden of proving this
defense should fall on D.

Furthermore, not all situations where D intends to cause emotional distress to another person (C)
through statements should lead to legal action. Trying to apply a defense of implied consent to
emotional distress, similar to how it's done in battery cases for physical interactions, may seem
artificial. However, some appellate judges have hinted at a similar approach, emphasizing that
the law should not intervene in normal human discourse, even if it involves heated arguments or
exchanges of insults.

It's argued that there should be a defense of "not in the public interest to litigate" under the
Revised Wilkinson Tort. However, determining which statements intended to cause emotional
distress should be actionable and which should not will be complex and context-dependent. This
is a task that courts frequently undertake. With the rise of hate-filled and threatening statements
on social media and electronic platforms, this defense will require careful consideration under
the Revised Wilkinson Tort. Nevertheless, some scenarios under the Current Wilkinson Tort
already seem to align with this defense.

In evaluating the proposed "not in the public interest to litigate" defense under the Revised
Wilkinson Tort, it's essential to consider various real-life scenarios where emotionally distressing
situations occur but may not warrant legal action. For instance, within the workplace, instances
of managerial criticism, although emotionally distressing, often fall under the defense of
"justification and lawful excuse." Similarly, unpleasant behavior and intentional displays of
resentment among colleagues might not always meet the threshold for legal action.

Cases such as Wong and Wainwright illustrate how certain behaviors in the workplace, such as
threats of retaliation or rudeness among coworkers, may not be considered actionable
under the tort. Even instances of horseplay or practical jokes, while potentially distressing, may
not always warrant legal intervention, as noted in Wainwright.

Moreover, everyday scenarios involving public interactions, such as rude behavior from service
industry employees or domestic disputes, may cause emotional distress but might not be
suitable for litigation under the proposed defense. This aligns with Lord Scott's perspective that
some of life's challenges, including humiliation in initiation ceremonies or retail settings, should
not necessarily lead to legal compensation.

In essence, while emotionally distressing situations may arise in various contexts, not all of them
may meet the criteria for legal action under the Revised Wilkinson Tort. The proposed defense
acknowledges the complexities of human interactions and aims to strike a balance between
protecting individuals from harm and avoiding excessive litigation over commonplace
occurrences.
The consideration of the European Convention on Human Rights (ECHR) Article 10,
safeguarding freedom of expression, is crucial in evaluating the Revised Wilkinson Tort, similar
to the assessments made in defamation and privacy cases. In the Rhodes case, where the
publication of Mr. Rhodes' autobiography was deemed to be in the public interest, Lord
Neuberger emphasized the need for the law to respect the right to freedom of expression. He
argued that the common law should align with the principles of the Convention, recognizing that
restrictions on speech must be convincingly justified, even in cases involving personally
insulting statements.

Under the Revised Wilkinson Tort, the same balancing exercise between the right to freedom of
expression and protection against emotional distress should apply. It's essential to ensure that
legitimate forms of expression, including journalism and other forms of writing, are not unduly
restricted by the threat of legal action. Moreover, the presence of procedural safeguards is crucial
in preventing abusive or vexatious litigation. While there may be concerns about the potential for
engineered or frivolous claims, these issues can be managed through existing procedural
mechanisms without compromising the need for substantive legal reform aimed at providing
redress to genuine victims of wrongful conduct.
In summary, the evaluation of the Revised Wilkinson Tort should take into account the
principles of freedom of expression enshrined in the ECHR, ensuring a balanced approach that
respects both individual rights and societal interests. Additionally, procedural safeguards play a
vital role in preventing the misuse of legal mechanisms while allowing legitimate claims to
proceed.

Conclusion

The suggested reforms for the Wilkinson Tort outlined in this article offer significant
advancements over the current framework. By adapting to the demands of modern-day life, the
Revised Wilkinson Tort would be better equipped to address instances of serious emotional
distress, even in the absence of a recognized psychiatric injury. This evolution aligns with both
legal principles and medical understanding, building upon precedents such as Hunter v Canary
Wharf and reflecting the changing landscape of societal norms.

However, to ensure the effectiveness of these reforms, it is imperative to introduce

corresponding adjustments to the conduct, intent, and causation elements of the tort, while
removing the requirement of foreseeability of damage altogether. Recent judicial observations,
as noted by Williams J, highlight the need for a balanced approach that respects both freedom of
expression rights and the potential harm caused by words or conduct leading to psychiatric
injury. This balance is particularly crucial in the context of today's social media environment,
where harmful statements can have far-reaching consequences, especially for vulnerable
individuals.

The historical origins of the Wilkinson Tort underscore its enduring significance in providing
legal recourse for intentional wrongdoing. By modernizing the tort as proposed, it can effectively
address gaps in existing tort law frameworks, offering protection for individuals' personal
integrity in cases of intentional harm where other torts may fall short. Moreover, these reforms
would serve to compensate those who have suffered emotional distress due to unjustified or
unlawful statements, aligning with the principles of justice and accountability.

Ultimately, these reforms aim to uphold Wright J's legacy of seeking justice for those harmed by
the intentional actions of others. By adapting the tort to contemporary societal conditions, it can
better address the myriad ways in which harmful statements, particularly in digital spaces, can
inflict significant mental harm on individuals