Wong v Parkside Health NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE |
| Judgment Date | 16 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1721 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/ 2000/0654 |
| Date | 16 November 2001 |
[2001] EWCA Civ 1721
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COUNTY COURT
(MR RECORDER TALBOT QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lady Justice Hale
Mr Justice David Steel
Case No: B1/ 2000/0654
Matthew Chapman (instructed by the Royal Courts of Justice Advice Bureau) for the appellant
John Greenbourne (instructed by Hammond Bale) for the respondent
This is the judgment of the court in an appeal against the order of Mr Recorder Talbot QC, made on 14 December 1999 in the Mayor's and City of London County Court, striking out the appellant's claim against the second defendant. The appellant complained of a campaign of harassment against her in 1995 by three fellow employees and an inadequate response by the first defendant employers. The second defendant is one of those three employees. The issues raised are (1) the precise scope of the tort of intentionally causing harm under the principle in Wilkinson v Downton [1897] 2 QB 57 and (2) whether there was a tort of harassment at common law before the Protection from Harassment Act 1997 came into force.
The appellant was employed as a wheelchair administrator by the first defendant NHS Trust from 3 January 1995. She worked in the same office as the second defendant, Susan Mullins, and another employee, Josie Lucas. Also there at the beginning was a temporary worker, Carmel Woods, who had applied unsuccessfully for the appellant's position but was now charged with explaining the work to the appellant. The appellant's case was that Susan Mullins and Josie Lucas believed that Carmel Woods should have got the job and were extremely rude and unfriendly to her from the start. Carmel Woods did not explain the work properly to her. They criticised her for arriving on time, told her that she had not mastered the job and should leave, locked her out of the office, interfered with her desk and personal effects, and hid things that she needed. On 20 February 1995 the second defendant threatened her with reprisals from an ex convict if she told their employers about the second defendant's absences. On 9 March 1995 she was assaulted by the second defendant, who had also been responsible, with Josie Lucas, for setting off her car alarm and frightening her by throwing something against the office window. In all, out of 22 particulars of harassment, 13 applied to the second defendant, although in three further incidents of interference with the appellant's property the perpetrator was unknown.
The appellant went on sick leave after the assault and remained absent until her employment was terminated in August 1996. She brought a private prosecution for assault against the second defendant. On 9 October 1995, in the Ealing Magistrates' Court, the second defendant was convicted of common assault, conditionally discharged and ordered to pay £75 compensation and £250 costs.
These proceedings were brought on 6 March 1998. The claim against the first defendant employers was based on negligence and upon their vicarious liability for the torts of their employees. The claim against the second defendant was based upon the ‘tort of intentional harassment, for which she is liable for the foreseeable consequences’ (see para 6 of the Amended Particulars of Claim). It was claimed that the Appellant had suffered both physical and psychiatric injuries. Appended to the claim was a report from Dr Elizabeth Tylden, a retired consultant psychiatrist, diagnosing ‘chronic post-traumatic stress reaction due to harassment and stress at her place of work with a series of stressful incidents culminating in an assault. Severe disability in arm function due to residual physical and dissociative effects of trauma as specified in sections F.43 and F.44 of ICD10.’ The defendants deny these allegations.
The case against both defendants was listed for trial beginning on 14 December 1999. At the outset, the second defendant renewed an application to strike out the claim against her, which had been made earlier but not determined. The Recorder granted that application and adjourned the claim against the first defendant employers. He held that there was no tort of harassment at common law before the enactment of the Protection from Harassment Act 1997, which does not have retrospective effect; he further held that the complaints made against the second defendant could not amount to the tort of intentional infliction of harm under the principle in Wilkinson v Downton. In reaching that decision, he excluded the assault on 9 March, because of s 45 of the Offences against the Person Act 1861; he also excluded the threat on 20 February because the appellant conceded to him that it had not been the cause of her trauma.
At that stage, the appellant was acting in person, legal aid having been withdrawn. Before us, she has been represented under the pro bono scheme run by the Royal Courts of Justice Advice Bureau, by Mr Matthew Chapman of counsel. He has argued her case before us as well as it could possibly be argued and we are most grateful to him, and to the bureau and the scheme, for their help with some difficult but important issues of law.
Wilkinson v Downton
As every law student knows, the common law distinguished between an action in trespass and an action upon the case. Trespass to the person consisted in the direct infliction of harm (or the threat of the immediate infliction of such harm) upon the claimant. But the law recognised that physical harm might be inflicted indirectly. If intentional, this was the tort recognised by the High Court in Wilkinson v Downton [1897] 2 QB 57 and confirmed by the Court of Appeal in Janvier v Sweeney [1919] 2 KB 316. If negligent, it was eventually recognised as the tort of negligence in Donoghue v Stevenson [1932] AC 562. 8. In Wilkinson v Downton, the defendant did not intend to cause physical harm to the claimant. He intended to play a particularly nasty practical joke upon her. He told her, knowing that it was not true but meaning her to believe them, that her husband had had an accident returning from the races in a wagonette, had broken both his legs, was lying in a public house in Leytonstone, and wished the claimant to go at once with a cab and some pillows to fetch him home. She suffered a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering for her and expense to her husband. Wright J found in her favour:
“The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.
It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant's act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. 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 anticipated, for that is commonly the case with all wrongs.”
This was approved in the later, and ‘much stronger’ case of Janvier v Sweeney [1919] 2 KB 316. In order to persuade the plaintiff to hand over letters belonging to her employer, the second defendant, an employee of the first defendant, pretended to be from Scotland Yard, representing the military authorities who wanted the plaintiff for corresponding with a German spy. The plaintiff suffered a severe shock, resulting in neurasthenia, shingles and other ailments. Although these cases were concerned with words, the same principle would obviously apply to the intentional infliction of physical harm by other indirect means, such as digging a pit into which it is intended that another should fall.
It follows from Wright J's formulation that, although the tort is commonly labelled ‘intentional infliction of harm’, it is not necessary to prove that the defendant actually wanted to produce such harm. If the conduct complained of was ‘calculated’ to do so, and does so, then that is enough. Much depends, therefore, on what is meant by ‘calculated’.
Professor Fleming states in The Law of Torts, 9 th edition 1998, at p 38,
“Cases will be rare where nervous shock involving physical injury was fully intended (desired). More frequently, the defendant's aim would have been merely to frighten, terrify or alarm his victim. But this is quite sufficient, provided that his conduct was of a kind reasonably capable of terrifying a normal person, or was known or ought to have been known to the defendant to be likely to terrify the plaintiff for reasons special to him. Such conduct could be described as reckless … .”
This might be read to mean that the tort is committed if there...
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