The tort of intentionally causing harm: will the Supreme Court’s pruning result in new growth?


By Catriona Stirling


The Supreme Court has handed down its judgment in the case of James Rhodes v OPO and another. The decision has, rightly, been presented as a victory for free speech, but it is also an important and interesting case from a tort law perspective.

Mr Rhodes, a well-known concert pianist and author, wishes to publish his memoirs. Certain passages in those memoirs give a graphic account of horrific sexual abuse that he suffered at school and its effect on him.

Mr Rhodes’ former wife wished to stop the publication of those passages on the ground that publication risked causing psychological harm to their son who is now 12. Their son has been diagnosed with Asperger’s syndrome, attention deficit hyperactivity disorder, dyspraxia and dysgraphia and is therefore particularly vulnerable. Evidence had been filed from a child psychologist. She was of the view that Mr Rhodes’ son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book.

It was alleged that publication would constitute the tort of intentionally causing physical or psychological harm to the son. This tort was recognised in the case of Wilkinson v Downton [1897] 2 QB 57. Mr Rhodes and his publisher contended that there was no cause of action against them.

None of the other circumstances in which liability could arise for injury caused by a statement, such as by way of breach of contract, defamation, breach of confidence or breach of duty because of a pre-existing relationship, were applicable here. (The Court of Appeal had ruled that there was no claim in negligence and there was no appeal against this finding.)

The Court of Appeal held that the claim for the tort of intentionally causing harm should proceed to trial for determination of the factual issues. An interim injunction was issued against publishing the memoirs, unless a large number of passages were deleted prior to publication.

On appeal, the Supreme Court was therefore concerned with the circumstances in which a claimant has a cause of action for distress or psychiatric illness which he suffers as a result of a statement made by a defendant, where the statement would not otherwise give rise to a claim.

It had to consider the proper scope of the tort of intentionally causing harm in modern law and whether it could be used to prevent a person from publishing true information about himself.


The “old” form of the tort

Wilkinson v Downton arose out of a misconceived practical joke. Mr Downton apparently thought that it would be amusing to tell Mrs Wilkinson, his pub landlord’s wife, that her husband had been badly injured in an accident and required her to send help. This tale caused Mrs Wilkinson to suffer severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mr Downton was held liable to Mrs Wilkinson for the severe mental stress caused to her by his statement.

It was held that a cause of action existed in law where a defendant had wilfully done an act with no justification, which was calculated to cause physical harm to the plaintiff i.e. to infringe her legal right to personal safety, and had in fact thereby caused physical harm to her.

It was held that the defendant’s act was so plainly calculated, meaning likely, to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant. In other words, it was not necessary to prove an actual intention, as a matter of fact, to injure. It was sufficient to prove that the conduct was “calculated” to do so, in the sense of being deliberate conduct which was likely in the nature of things to cause injury. If those circumstances, the law would impute an intention to produce that result on the basis that a person was to be taken as a matter of law to intend the natural and probable consequences of his acts.

Wilkinson v Downton was subsequently approved by the Court of Appeal and followed in some other cases. It then apparently disappeared from sight in reported cases for 70 years or so, before making a minor resurgence over the last 25 years in a number of harassment cases, including Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721.

In the latter case, Hale LJ followed Wilkinson in holding that the tort of intentionally inflicting harm did not require proof of subjective intention to injure; she too held that it was sufficient to prove that the conduct was “calculated” to do so in the sense of being deliberate conduct which was likely in the nature of things to cause injury.

Supreme Court Judgment

Following a review of the authorities, the Supreme Court in the present case noted that there are three elements to the tort: a conduct element, a mental element and a consequence element.

It was common ground that the consequence required for liability was physical harm or recognised psychiatric illness.


The “conduct” element

The conduct element, as previously formulated, required words or conduct directed towards the claimant, for which there was no justification or reasonable excuse. The burden of proof was on the claimant.

The Supreme Court agreed that the tort should be regarded as confined to those towards whom the relevant words or conduct were directed, but considered that those people may be a group. It was wrong to judge the publication of the book as conduct directed towards this claimant and judge the question of justification in relation to him in isolation. The book was for a wide audience and the question of justification had to be considered accordingly.

Therefore, it could not be said that there could be no justification for the publication if it were likely to cause psychiatric harm to the claimant. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way he wished to tell it, and the corresponding interest of the public in hearing his story. When those factors were taken into account, the only proper conclusion was that there was every justification for the publication. Thus, the publication of the book was not within the scope of the conduct element of the tort.

The Court also went further. It held that it was not necessary for there to be an identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton. Speech was likely to be excluded from liability in relation to this tort unless it was deceptive, threatening or possibly abusive, as the right to report the truth was justification in itself. There was no general law prohibiting the publication of facts which would cause distress to another, even if that was the person’s intention.


The “mental” element

Although the claim had failed on the conduct element, the Supreme Court nevertheless went on to consider the mental element required for the tort.

As noted above, in its Wilkinson v Downton form, the tort included the doctrine of imputed intention as a matter of law. The Supreme Court noted that there was a critical difference between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact.

It held that the imputation of an intention by operation of a rule of law was a vestige of a previous age and had no proper role in the modern law of tort. It was unsound in principle. It had been abolished in the criminal law nearly 50 years previously and its continued survival in the tort of wilful infringement of the right to personal safety was unjustifiable. It was therefore time to declare the demise of the doctrine.

Considering the mental element further, the Court held that where a recognised psychiatric illness was the product of severe mental or emotional distress, it was not necessary that the defendant should have intended to cause illness; it was sufficient that he intended to cause physical harm or severe mental or emotional distress which in fact resulted in recognisable illness. An analogy could be drawn with the “egg shell skull” doctrine.

There was no basis in the present case for supposing that Mr Rhodes had an actual intention to cause psychiatric harm or severe mental or emotional distress to his son and there was therefore no arguable case that the requisite mental element of the tort was met.


Implications of the Judgment

Where does this leave the tort of intentionally causing harm? The modified tort has the following constituent parts:

1. the conduct element requiring words or conduct directed at the claimant for which there is no justification or excuse;

2. the mental element requiring an intention to cause at least severe mental or emotional distress; and

3. the consequence element requiring physical harm or recognised psychiatric illness.

The Supreme Court has curtailed the scope of the tort by its abolition of the doctrine of imputed intent. In the future, to fall within this tort, intention to cause severe mental or emotional distress will have to be proved. It will not be sufficient to show that the statement was so clearly likely to produce an effect of the kind that occurred that an intention to produce it should be imputed as a matter of law. This modification is likely to have the greatest impact in relation to harassment, the field in which this tort has had the most application in modern times.

This change is to be welcomed. Given the myriad circumstances in which strong words may be spoken, it is unfair to allow this tort to succeed where intention to cause harm cannot be shown (and where no other cause of action is available).

However, practitioners should bear in mind that this tort, perhaps underused until now, can still assist in relation to statements causing injury where all other torts may fail. The judgment of the Supreme Court will have reminded a wider audience of its existence. It may therefore have the consequence that this tort is relied upon more often in the future.

Its greatest application will probably remain in the field of harassment, and perhaps stress at work claims, these being the fields in which statements are most likely to cause physical or psychological injury. Although the Protection from Harassment Act 1997 provides for civil remedies in relation to harassing statements, such remedies require a course of action and therefore would not catch a one-off statement.

Of course, we should not get carried away with visions of using this tort on a grand scale in the future. Because of the “justification” aspect of the conduct element, we are far from being in a situation where every untruth, insult or threat, which was intended to, and did, cause distress, but would not otherwise be civilly actionable, will give rise to a claim.

Lord Neuberger was keen to emphasise the importance of freedom of expression and of the law not impeding ordinary discourse, “including unpleasant, heated arguments, whether in domestic, social, business or other contexts, sometimes involving the trading of insults or threats, or with normal, including trenchant, journalism and other writing”.

He noted that whether a particular statement would be tortious must inevitably depend on the context. For example, an unprompted statement made simply because the defendant wanted to say it or because he was inspired by malice may be different from the same statement made in the course of a heated argument, especially if provocation is involved. Moreover, it would be wrong for the tort to be used to extend or supplement the law of defamation e.g. by justifying relief against a strongly worded and hostile biography.

However, it remains the case that, while the Supreme Court could have taken the opportunity to further reform, curtail or abolish this tort, it chose not to do so, instead making a sensible change and restating its existence in a modified form. This suggests that it sees the continued existence of some form of liability for statements causing injury, in addition to other recognised torts, as an important one. This is to be welcomed, as the moral line between words and actions that intentionally cause injury can be a difficult one to draw.

Contrary to the old nursery rhyme’s assertion that “sticks and stones may break my bones, but words will never hurt me”, words can be just as harmful as actions. It is right that this tort is still available to reach the parts that other torts may not reach.