Court of Appeal confirms the tort of intentionally causing mental suffering

The decision in the case of Wilkinson v Downton (1897) first established the principle of intentionally causing mental suffering when a practical joker told a woman that her husband had had a serious accident and broken both his legs and that she should go to his aid. She had to pay for a carriage to take her to the scene and suffered nervous shock; the practical joker was held liable for the fare and for damages for the shock he had clearly intended to cause her.

Over twenty years later in Janvier v Sweeney (1919) the decision was affirmed by the Court of Appeal which held that “False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable”.

In the recent case of OPO v MLA and another (2014) the Court of Appeal considered both cases when a young boy sought an injunction to prevent his father publishing a book which was likely to cause the boy harm if he read it. It was held that there was no need for a statement to contain false words for the tort of intentionally causing mental suffering to be proved.

In giving judgement the Court of Appeal set out a number of matters that should be taken into account when considering if an act is liable:-

• A lack of justification for the act is necessary and which will give some protection to the bearer of bad news such as the death of another’s loved one
• An intention or recklessness in wilfully carrying out an act which is calculated to cause psychiatric harm, and actually causes such harm is sufficient
• The nature of the act itself and whether it is sufficiently outrageous
• The personal characteristics of the recipient of the act and whether those are known to the person carrying out the act

Although the facts of the current case were very specific it has confirmed that the tort of intentionally causing mental suffering does exist and the principles that were affirmed were sufficiently broad for liability to arise in other cases. Debbie Hough, a partner at our Spalding office says ‘The decision has not yet been considered in any other case and how far the Courts will apply the recent decision is yet to be seen, but it is another interesting development in the law concerning psychiatric harm.’

If you would like assistance on any of the issues discussed in this article, contact our Dispute Resolution Team for more information.