The Rule in Wilkinson v Downton: Conduct, Intention, and Justifiability

Date01 March 2015
Published date01 March 2015
The Rule in Wilkinson vDownton: Conduct,
Intention, and Justifiability
Ying Khai Liew*
The decision in OPO vMLA [2014] EWCA Civ 1277 causes confusion to the rule in Wilkinson
vDownton. A strong line of authorities indicates that the defendant must either have an actual
intention to cause physical injury or be reckless as to the causing of such harm, the latter being
determined by the likelihood of harm being caused by the defendant’s act. ‘Imputed intention’
does not form a separate category of mental state. There was also a missed opportunity to develop
a ‘justifiability’ criterion, by which policy considerations can be taken into account to preclude an
application of the tort. This criterion ought to be developed in a principled manner, in line with
the existing jurisprudence concerning human rights and with the policy limitations as developed
in the context of other torts.
According to Wright J in Wilkinson vDownton,1a cause of action arises when
‘[t]he defendant . . . wilfully [does] an act calculated to cause physical harm to the
[claimant] . . . and has thereby in fact caused physical harm to [the claimant].’2
This tort was once thought to be of diminishing significance, particularly due to
the expansion of the tort of negligence to cover primary victims who suffer
nervous shock3and the passing of the Protection from Harassment Act 1997.4In
the recent case of OPO vMLA,5however, the potential relevance of the rule in
Wilkinson vDownton resurfaced in a case where the claimant had a claim under
neither the tort of negligence nor the 1997 Act. It is therefore relevant to revisit
the question: what are the relevant ingredients of that tort? Courts have con-
firmed that ‘physical harm’, which must in fact have been caused to the claimant,
includes psychiatric injury but not mere alarm or emotional distress.6Three
questions remain, however: what must the defendant’s conduct or ‘act’ consist
*Lecturer in Law, University College London. I thank Professor Paul Mitchell and an anonymous
reviewer for their helpful comments on an earlier draft.
1 [1897] 2 QB 57.
2ibid, 58–59.
3 See eg Page vSmith [1996] 1 AC 155. It is arguable that a ‘wilful’ act by the defendant could, to
the same extent, count as a ‘negligent’ act for the purposes of a claim in the tort of negligence.
4 Protection from Harassment Act 1997, s 7(3) provides a civil remedy where a defendant engages
in conduct amounting to ‘harassment’ ‘on at least two occasions’ where it relates to a single person,
even where the claimant suffers mere anxiety short of physical harm (s 3(2)).
5 [2014] EWCA Civ 1277.
6 See eg Khorasandjian vBush [1993] QB 727, 736; Wong vParkside Health NHS Trust [2001] EWCA
Civ 1721 at [11]–[12]; Wainwright vHome Office [2002] QB 1334 (CA) at [80]; Mbasogo vLogo Ltd
[2007] QB 836 at [98]–[99].
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(2) MLR 349–371
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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