COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COUNTY COURT
(MR RECORDER TALBOT QC)
London, WC2A 2LL
Friday 16th November 2001
B e f o r e :
LADY JUSTICE HALE
MR JUSTICE DAVID STEEL
| MINNA WONG
|- and -
|PARKSIDE HEALTH NHS TRUST & ANR
Smith Bernal Reporting Limited, 190 Fleet Street
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John Greenbourne (instructed by Hammond Bale) for the respondent
Crown Copyright ©
LADY JUSTICE HALE:
Wilkinson v Downton
"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."
"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.
" . . . 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  2 QB 57, 59, cited by Bankes LJ in Janvier v Sweeney  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."
"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."
A tort of harassment
"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."
". . . 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  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.'
"(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."
"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  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.
"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."
"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  2 QB 57 and Janvier v Sweeney  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.