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Wilkinson v Downtown
Facts: A jokingly told P her husband had been injured and needed her help. P suffered violent shock to her nervous system and weeks of suffering and incapacity
Held: Party may seek recovery for outrageous conduct causing physical harm/mental distress There was little doubt that Downtown's actions would harm P, must be assumed to have been intentional
Established Wilkinson v Downtown Rule
D had "willfully done an act calculated to cause physical harm to the [claimant] - that is to say, infringe her right to personal safety, and thereby in fact caused physical harm to her. That proposition, without more appears to state a good cause of action, there being no justification alleged for act"
What is the purpose of Wilkinson v Downtown rule, and how has it evolved?
Provides a remedy for those who suffer physical or psychiatric injury as a result of another's intentional conduct
Refined in Wainright - only recognized psychiatric harm
And again in O (A Child) - intentionally hostile
Wainwright v Home Office
Facts: C & son subject to trip searches in prison. No support for invasive search
Held: policy considerations which limit recoverable damage in negligence do not apply equally to torts of intention. No recognizable psychiatric harm, police acted sloppily but in good faith.
Limits the Rule in Wilkinson
"... if it does not provide a remedy for distress which does not amount to recognized psychiatric injury"
O (a Child) v Rhodes
Facts: O was son of writer who published a documentary with detailed accounts of sexual abuse suffered as a child. Psychologists felt this would have catastrophic effects on child's psyche. Applied for injunction
Held: Publishing a book to general public did not fall within scope of tort. Should not extend Wilkinson farther than reasonable
Limits of Wilkinson Established
'Conduct element' - needs to be directed towards claimant without justification
'Mental element' - D must intend to cause physical or severe mental/emotional distress
'Consequence element' - physical harm/recognized physiatric illness required
What does 'McBride and Bagshaw's Tort Law' suggest in order to establish tort in Wilkinson?
1. A deliberately does something unjustifiable to B;
2. A's actions cause B to suffer such illness; or
3. At the time A acted:
- A intended to cause B to suffer illness; or
- A knew that his actions might cause B to suffer such illness; or
- It was highly likely that A's actions would cause B to suffer as this illness
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