England and Wales Court of Appeal (Civil Division) Decisions

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 Friday 16th November 2001

LADY JUSTICE HALE:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

7. 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."

9. 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.
10. 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'.
11. 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 is deliberate conduct which will foreseeably lead to alarm or distress falling short of the recognised psychiatric illness which is now considered the equivalent of physical harm, provided that such harm is actually suffered. We do not consider that English law has gone so far.

12. For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not 'mean' it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour. This view is consistent with that taken by Dillon LJ in Khorasandjian v Bush [1993] QB 727, at pp 735G to 736A:

" . . . false words or verbal 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: see the judgment of Wright J in Wilkinson v Downton [1897] 2 QB 57, 59, cited by Bankes LJ in Janvier v Sweeney [1919] 2 KB 316, 321-322. There was a wilful false statement, or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical injury, viz, illness in the nature of nervous shock."

13. There is no allegation in this case that the second defendant intended to cause the harm that Dr Tylden diagnosed. The question therefore is whether her conduct was of a nature which was sufficiently likely to result in such harm that an intention to produce it could be imputed to her. The Recorder held that it was not. But in doing so he left out of account the two most important allegations made against this defendant, the threat and the assault.
14. The assault was excluded because of s 45 of the Offences against the Person Act 1861. This provides that

"If any person against whom any such complaint as is mentioned in section 44 of this Act [ie of assault or battery] shall have been preferred by or on behalf of the party aggrieved shall have obtained such certificate [ie of dismissal because not proved, or justified or so trifling as not to merit any punishment], or, having been convicted, shall have paid the whole amount adjudged to be paid, or shall have suffered the imprisonment with hard labour awarded, in every case he shall be released from all further or other proceedings, civil or criminal, for the same cause."

15. The claimant brought a private prosecution against the second defendant, which resulted in a conviction, and orders for compensation and costs, all of which have been paid. Mr Chapman argues that this precludes bringing a civil action for assault or battery relying upon the same allegation, but it does not prevent that allegation being used for the purpose of proving a completely different tort. It is all part of the picture of behaviour 'calculated' to cause the claimant physical harm. However, in the case of Masper v Brown (1876) 1 CPD 97, this court held that 'cause' in s 45 meant 'assault': an action by a husband in respect of the consequential damage to him by reason of an assault upon his wife (presumably the old action per quod servitium or consortium amisit) was therefore prohibited. The fact that it was a completely different cause of action, brought by a different claimant, made no difference. Lord Coleridge CJ referred to the earlier provision in the Criminal Procedure Act 1853 relating to aggravated assaults, which had barred future proceedings for the same 'assault'. He pointed out that it would be a very strange thing if the legislature, when dealing with aggravated assaults only, should have intended to make the conviction a bar to all further proceedings against the offender for the same assault, and then, when dealing with non-aggravated assaults as well as aggravated assaults, should have intended the conviction to be only a bar to proceedings for the same cause of action.
16. Thus the victim of an assault has a choice. If the authorities choose to prosecute, there is no problem. But if they do not, she must choose between bringing a private prosecution or a civil action. The former will destroy her right to bring the latter, irrespective of the outcome. The alleged perpetrator is not to be put in double jeopardy for the same cause. This may be an anomalous approach in today's world, given the differences in the burden of proof and sometimes in the level of compensation awarded by criminal and civil courts. But for as long as s 45 is on the statute book, the effect in a case such as this is clear: the claimant cannot rely upon the assault in any other proceedings. The Recorder was therefore right to exclude it from his consideration.
17. The threat is different. It is the most serious of the other allegations made against the second defendant. But the claimant herself conceded to the judge that it had not caused her illness. The trigger had been the earlier incidents which had led to her two day absence in January. Without it, all that is left is a catalogue of rudeness and unfriendliness, behaviour not to be expected of grown up colleagues in the workplace, but not behaviour so 'calculated to infringe her legal right to personal safety' that an intention to do so should be imputed to the second defendant.

A tort of harassment

18. There was growing public concern and media debate about harassment, at least in the form popularly known as 'stalking', before the 1997 Act. The context was usually obsessive behaviour towards a person with whom the stalker had had or wished to have an intimate relationship. Remedies had been developed within family law but these only gave protection to a limited class of people. Others had to rely upon the law of tort. The case law was developing in such a way that some considered that a new tort of harassment had already been created. However, in all of the cases the question was whether an injunction should be granted to prevent particular kinds of behaviour: there was no case in which damages were awarded to compensate for such behaviour in the past.
19. Remedies against molestation were first developed in pending matrimonial causes. This was before actions in tort became possible between spouses following the Law Reform (Husband and Wife) Act 1962. The object was to protect the integrity of the legal process, by preventing a wife petitioner for divorce being 'kicked or kissed' out of her remedy. The concept of molestation embraced some behaviour, such as violence and threats of violence, which was obviously tortious, but other behaviour which was not. The classic definition is that of Ormrod LJ in Horner v Horner [1982] Fam 90, at p 93A:

"For my part I have no doubt that the word 'molesting' in section 1(1)(a) of the Act 1976 does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court."

20. This was a reference to the Domestic Violence and Matrimonial Proceedings Act 1976. Section 1 had given county courts jurisdiction to grant injunctions against molestation, not only between husband and wife, but also between 'a man and woman who are living with each other in the same household as husband and wife', whether or not any other relief was sought in the proceedings. The House of Lords in Davis v Johnson [1979] AC 264 confirmed that this was not merely a procedural provision. There remained many gaps, for example, where the couple were no longer married or living together, or where they had never lived together, or were related in some other way.
21. Many of the gaps in the statutory scheme were filled by the new scheme introduced by Part IV of the Family Law Act 1996. Some of them had already been filled by the cases decided before then. In Burnett v George [1992] 1 FLR 525, CA, the plaintiff complained of a series of molestations and assaults by a former cohabitant. An injunction was granted in the then standard form restraining him from assaulting, molesting or otherwise interfering with her. On appeal it was argued that molestation and interference were not actionable wrongs. Sir John Arnold P agreed:

". . . I regard that as a conclusive argument, unless there be evidence that the health of the plaintiff is being impaired by molestation or interference calculated to create such impairment, in which case relief would be granted by way of an injunction to the extent that it would be necessary to avoid that impairment of health. That exception is, in my judgment, validly grounded on Wilkinson v Downton [1897] 2 QB 57 "

As there was evidence that the defendant's behaviour was causing injury to the plaintiff's health, an injunction was substituted prohibiting him from 'assaulting, molesting or otherwise interfering with the plaintiff by doing acts calculated to cause her harm.'

22. The Court of Appeal may have gone a little further in Pidduck v Molloy [1992] 2 FLR 202, CA. This was another case between former cohabitants, where an injunction against speaking to the plaintiff was replaced by one against speaking to her 'in an intimidatory, threatening or abusive manner' on the basis that these were all capable of amounting to crimes or torts.
23. Then came Khorasandjian v Bush [1993] QB 727, CA. The parties had never married or lived together but had been friends. The defendant was unable to accept that the plaintiff wanted nothing more to do with him. She complained of violence, threats of violence, damage to her property, and persecution by telephone calls. The current injunction restrained him from 'using violence to, harassing, pestering or communicating' with her. Dillon LJ, with whom Rose LJ agreed, upheld the injunction without qualification, because (p 739 G-740 A)

"(i) the campaign of harassment has to be regarded as a whole without consideration of each ingredient in isolation, and viewed as a whole it is plainly calculated to cause the plaintiff harm, and can be restrained quia timet because of the danger to her health from a continuation of the stress to which she has been subjected; (ii) threats of violence can be restrained per se, whether or not the threat, without the subsequent violence, is calculated to cause the plaintiff harm; and (iii) telephone harassment is, in my judgment, . . . an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present, and thus, on the past history, can be restrained quia timet without further proof of damage."

24. Point (iii) was based upon extending the tort of private nuisance so as to protect a mere licensee. Peter Gibson J, as he then was, disagreed (p 745D):

"I know of no authority which would allow a person with no interest in land or right to occupy land to sue in private nuisance. Given that the purpose of an action in nuisance is to protect the right to use and enjoyment of land . . . , it seems to me to be wrong in principle if a mere licensee or someone without such right could sue in private nuisance."

In this view he was entirely vindicated by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655. To that extent the decision of the majority of the Court of Appeal in Khorasandjian v Bush was overruled. But Hunter was a case about the scope of the tort of private nuisance; it had nothing to do with harassment. There is nothing in the speeches in their Lordships' House to cast doubt upon that part of the decision which was based upon the principle in Wilkinson v Downton.

25. However, there was also a difference of opinion in the Court of Appeal on that point. Dillon and Rose LJJ did not limit the injunction to conduct calculated to cause harm, because taken as a whole, the conduct complained of was clearly so calculated. Peter Gibson J, on the other hand, would have followed the decision in Burnett v George in including such a limitation. Insofar as Pidduck v Molloy had gone further in restraining conduct which was merely capable of amounting to a crime or a tort rather than conduct which would amount to a crime or a tort, he preferred Burnett v George, 'because in principle only conduct amounting to an actionable wrong (including conduct facilitating such a wrong) should be restrained' (p 742 G).
26. The Court of Appeal took the broader view in Burris v Azadani [1995] 1 WLR 1372. There had been no relationship between the parties, but the defendant had wanted one. He had indulged in 'an intolerable history of harassment and molestation'. An injunction was granted against (a) assaulting, molesting, harassing, threatening, pestering or otherwise interfering with the plaintiff, her children or her friend, or (b) communicating with any of them, or (c) coming or remaining within 250 yards of her home. He was committed for breach of paragraph (c). Sir Thomas Bingham, MR, said this (p 1377 A-C):

"If an injunction may only properly be granted to restrain conduct which is in itself tortious or otherwise unlawful, that would be a conclusive objection to term (c) . . . I do not, however, think that the court's power is so limited. A Mareva injunction granted in the familiar form restrains a defendant from acting in a way which is not, in itself, tortious or otherwise unlawful. The order is made to try and ensure that the procedures of the court are in practice effective to achieve their ends. The court recognises a need to protect the legitimate interests of those who have invoked its jurisdiction."

He concluded that there was power to make an 'exclusion zone' order. But such order should not be made readily or without very good reason. The liberty of the defendant should be respected up to the point at which his conduct infringed or threatened to infringe the rights of the plaintiff. At p 1380H to 1381A:

"Ordinarily, the victim will be adequately protected by an injunction which restrains the tort which has been or is likely to be committed, whether trespass to the person or to land, interference with goods, harassment, intimidation or as the case may be. But it may be clear on the facts that if the defendant approaches the vicinity of the plaintiff's home he will succumb to the temptation to enter it, or to abuse or harass the plaintiff, or that he may loiter outside the house, watching and besetting it, in a manner which might be highly stressful and disturbing to a plaintiff."

27. The basis of the decision is therefore that an interlocutory injunction may be granted to prohibit conduct which is not in itself unlawful if it is necessary to prevent such unlawful conduct taking place or to protect the claimant's right to bring the matter before the court. Understandably, Mr Chapman relies strongly upon the reference in the passage just quoted to a tort of harassment. Earlier, the Master of the Rolls had discussed the case of Patel v Patel [1988] 2 FLR 179, CA, in which an exclusion zone order had been removed from an injunction granted to a father-in-law against his son-in-law. May LJ had observed that an injunction 'can only be an appropriate remedy where an actual tortious act has been or is likely to be committed'. Waterhouse J had said that 'in the present state of the law there is no tort of harassment'. The Master of the Rolls commented, at p 1378H, that 'Nor, in the light of later authority, can the view be upheld that there is no tort of harassment'.
28. The later authority was Khorasandjian v Bush. Dillon LJ found it difficult to give much weight to what Waterhouse J had said, because the reformulated injunction in Patel had continued to prohibit molestation. Peter Gibson J, however, agreed with his statement, while pointing out, at p 744C, that 'many forms of molestation, in the wide sense in which it has been interpreted by the courts . . ., are tortious, but in my view not every form of molestation is a tort.' Both Dillon LJ and Peter Gibson J considered the decision of Scott J, as he then was, in Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20. He had held that the plaintiffs were entitled to enjoy their right to use the highway to go to work without unreasonable harassment and that picketing by 50 to 70 striking miners shouting abuse was a tortious interference with that right. This decision has been criticised, as interference with the right to use the highway is only actionable in public nuisance on proof of special damage. In News Group Newspapers Ltd v Society of Graphical and Allied Trades 1982 (No.2) [1987] ICR 181, Stuart Smith J, as he then was, saw force in the criticism but did not find it necessary to express a view. Nor did Dillon LJ in Khorasandjian v Bush, at p 738G. Peter Gibson J, at p 744A, expressly disagreed with Scott J, to the extent that he was holding that there was now a tort of unreasonable harassment. It is, however, quite clear that neither the majority nor the minority in Khorasandjian v Bush were creating a new tort. They were merely developing existing torts to cover the behaviour complained of and, in the case of the majority, to prohibit conduct which was likely to result in harm being suffered even though it had not yet done so.
29. Burris v Azadani was decided before the House of Lords' decision in Hunter v Canary Wharf. The speeches there do not lend support to the view that there is now a general tort of harassment at common law. Lord Goff said, at pp 691H to 692B:

"In truth, what the Court of Appeal appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place in her home. I myself do not consider that this is a satisfactory manner in which to develop the law, . . . In any event, a tort of harassment has now received statutory recognition: see the Protection from Harassment Act 1997. We are therefore no longer troubled with the question whether the common law should be developed to provide such a remedy."

Lord Hoffmann said this, at p 707E:

"The perceived gap in Khorasandjian v Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v Downton [1897] 2 QB 57 and Janvier v Sweeney [1919] 2 KB 316. The law of harassment has now been put on a statutory basis . . . and it is unnecessary to consider how the common law might have developed."

This gives no warrant for concluding that the common law had by then reached the point of recognising a tort of intentional harassment going beyond the tort of intentional infliction of harm. It is a clear indication that matters should now be left to Parliament.

30. Lord Hoffmann went on to comment, at p 707F, that 'I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence . . . The policy considerations are quite different.' Indeed they are, and Parliament has provided a civil remedy, which includes damages for anxiety, as well as a criminal remedy in the 1997 Act. No doubt the concept of 'a course of conduct which amounts to harassment' will be developed in decisions under that Act. Until that Act came into force, there was power to restrain by injunction conduct which might result in the tort of intentional infliction of harm or otherwise threaten the claimant's right of access to the courts, but there was no right to damages for conduct falling short of an actual tort.
31. As the allegations in this case do not amount to that or any other tort recognised at common law at the time when these events took place, the Recorder was right to strike out the claim and this appeal must be dismissed.
Order: Appeal dismissed; £6000 to be paid on account; balance of costs to be subject to detailed assessment by a costs judge. (Order does not form part of the approved judgment)