Wilkinson v. Downton

[1897] 2 Q.B. 57

Project paper submitted for the fulfillment of the Continuous Test of

Law of Torts and Consumer Protection

B.A.(Hons.)LL.B(Hons.)

Submitted By

ABHIMANYU SINGH

B.A.LL.B. (First Term)

Roll No. 02

Session 2010-2011

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

Acknowledgement

I am highly obliged to the faculty of torts for providing me an opportunity to research on a case on a topic which is of such a paramount importance.

This Project work has allowed me to go deep inside the technicalities of the topic and understand it completely. I am highly indebted to Mr. Girjesh Shukla who has been a guiding light in preparation of this Project Work and shared his views and guided during interactions giving space for improvement. I am also thankful to Mr. Ramendra Kant Mishra (Librarian), who has been a true source of information provider on Negligence and other related topics. It would unfair if other members of the staff here including Ms. Poonam Kumari are not acknowledged, with other students whose knowledge has benefitted in some way, without which, the project work would not have come in a form like it is being given.

Above all, I pay my gratitude to my parents who kept on motivating and cheering me to work for this project with complete dedication.

Abhimanyu Singh

I Year, B.A.(Hons) LL.B. (Hons)

National University of Study and Research in Law, Ranchi

DISCLAIMER

This Project has been prepared by the author as a part of Continuous Assessment and for the academic purposes only. The views expressed in the report are personal to the student and do not reflect the view of any other person. The brief being presented has not been copied from any place including website, etc and a lot effort has been made to ensures that this written presentation is devoid of various discrepancies.

Abhimanyu Singh Place: Jharkhand

Dated: March 7, 2011

Table of Contents

Topic Page no.

1. Acknowledgement………………………………………………………..2

2. Disclaimer……………………...…………………………………………3

3. Introduction……………………………………………………………….5

4. Facts of the Case……………………………….…………………………6

5. Arguments & Issues......................……………………………………….7

6. Judgement………………………………………………………………...8

7. Conclusion………………………………………………………………..9

8. Bibliography............................................................................................10

INTRODUCTION

Nervous shock is a term used in English law to denote psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. It is most often applied to psychiatric disorders triggered by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading", it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law. Traditionally, the courts have been reluctant to grant damages for nervous shock in negligence cases as it could "lead to a proliferation of claims, and possibly fraudulent claims".

This branch of law is comparatively of recent origin. It provides relief when a person may get physical injury not by an impact, e.g., by bullet, stick, sword but merely by a nervous shock through what he has seen or heard. As far as 1888, the Judicial Committee of Privy Council in Victorian Railway Comissioner v. Coultas1, did not recognize injury caused by a shock sustained through the medium of eye or ear, without contact. They thought that an action cannot be sustained unless there was a physical contact or something akin to do with it.2

In Rhodes v C.N.R., Justice Maczko stated that, "Historically a plaintiff could only recover for nervous shock where he or she actually witnessed an event in which a loved one was killed or injured and, as a result of that observation, suffered a medically diagnosed mental illness. This illness came to be known as nervous shock. Later the law expanxdseded to permit recovery in situations where the plaintiff merely apprehended an injury to him or herself or a loved one and, still later, recovery was available where the illness resulted from seeing the aftermath of an accident, i.e., coming upon the scene shortly after a close relative was injured or killed and seeing the results."3

In Dixon v Nova Scotia,4 Justice Chipman of the Nova Scotia Court of Appeal remarked:"Nervous shock is not so much a medical diagnosis, but rather a diagnosis at law or a legal label that has been hung on types of mental injury which courts have been prepared to recognize as worthy of recovery of damages. While the limits of liability have, from time to time varied, mere grief and sorrow have been universely excluded."

1 (1888) L.R. 13 A.C. 3222 R. K. Bangia, Law of Torts, p. 3193 (1990) 75 DLR4 2011 NSCA

PETITIONER: Mr. Thomas Wilkinson

Vs.

RESPONDENT: Mr. Downton

FACTS OF THE CASE

The admitted facts of the case are as follows:

Thomas Wilkinson was the landlord of the Albion public house in Limehouse. A regular customer of the public house named Downton decided to play a practical joke on Wilkinson's wife. When Mr. Wilkinson went to see the races in Harlow, he left his wife to manage the house. Mr. Downton approached Mrs. Wilkinson and told her, falsely, that her husband had been seriously injured in an accident. Mr. Downton told Mrs. Wilkinson that he had suffered two broken legs and that he was lying at The Elms in Leytonstone. He told her that she should go to him in a cab and bring two pillows to carry him home. The claimant was very distressed, to the point that she suffered a nervous breakdown and was incapacitated for several weeks.

The effect of Mr. Downton's false statement to Mrs. Wilkinson was a violent shock to her nervous system, causing her to vomit and for her hair to turn white and other more serious and permanent physical consequences which at one time threatened her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical expenses. These consequences were not in any way the result of a history of bad health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy.

Mrs. Wilkinson sued on an action on the case.5

ARGUMENTS & ISSUES5 R. K. Bangia, Law of Torts, p. 319

The claimant stated that the effect of Mr. Downton's false statement to Mrs. Wilkinson was a violent shock to her nervous system, causing her to vomit and for her hair to turn white and other more serious and permanent physical consequences which at one time threatened her reason, and entailing weeks of suffering and incapacity to her as well as expense to her husband for medical expenses. These consequences were not in any way the result of a history of bad health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy.6

The respondent held that he was not at all serious about the joke he practically played on Mrs. Wilkinson, and that he had no intention to harm her or distress her in any way. He based his arguments on the Doctrine of Foreseeability7, that it was not reasonably foreseeable that just cracking a joke would be so harmful and dangerous to a women that she will get a nervous shock which will in turn decolour her hair and would bring along a permanent psychiatric illness. He said that any person of normal fortitude would not have expected such bizarre consequences from any women.

The issue involved in the case was that can an outrageous conduct like mere cracking a joke that causes physical harm or mental distress give rise to a cause of action and held a person liable under Torts. And that if an injury is not at all foreseeable under any circumstance as was accepted indeed by Wright J.,8 can held the defendant liable under the suit of Civil Law. In an action in tort, it was held that the claim should succeed, despite not falling within the boundaries of Trespass to the person (which required a direct infliction of harm) or an Action on the case (as it then was; now negligence). Wouldn’t it have been an injustice to allow a wrongful act of this sort to go uncompensated?

JUDGEMENT

6 Winfield & Jolovicz, Torts, 18th edition, p. 1407 Pace International Law Review 2006, p. 1278 Winfield & Jolovicz, Torts, 18th edition, p. 141

Wright, Justice., stated that in this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plaintiff that he was charged by her husband with a message to her to the effect that her husband was smashed up in an accident, and was lying at The Elms at Leytonstone with both legs broken, and that she was to go at once in a cab with two pillows to fetch him home. All this was false. The effect of the statement on the plaintiff was 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 and incapacity to her as well as expense to her husband for medical attendance. These consequences were not in any way the result of previous ill-health or weakness of constitution; nor was there any evidence of predisposition to nervous shock or any other idiosyncrasy.9

In addition to these matters of substance there is a small claim for the cost of railway fares of persons sent by the plaintiff to Leytonstone in obedience to the pretended message. As to this [amount] expended in railway fares on the faith of the defendant's statement, I think the case is clearly within the decision in Pasley v. Freeman10. The statement was a misrepresentation intended to be acted on to the damage of the plaintiff.

The real question is as to the 100 pounds, the greatest part of which is given as compensation for the female plaintiff's illness and suffering. It was argued for her that she is entitled to recover this as being damage caused by fraud, and therefore within the doctrine established by Pasley v. Freeman and Langridge v. Levy11. I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, 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 or 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

9 R. K. Bangia, Law of Torts, p. 31910 (1789) 3 T.R. 5111 (1837) 2 M & W 519

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 was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable. Apart from authority, I should give the same answer and on the same ground as the last question, and say that it was not too remote. Whether, as the majority of the House of Lords thought in Lynch v. Knight12, the criterion is in asking what would be the natural effect on reasonable persons, or whether, as Lord Wensleydale thought, the possible infirmities of human nature ought to be recognised, it seems to me that the connection between the cause and the effect is sufficiently close and complete.

A more serious difficulty is the decision in Allsop v. Allsop13, which was approved by the House of Lords in Lynch v. Knight. In that case it was held . . . that illness caused by a slanderous imputation of unchastity in the case of a married woman did not constitute such special damage as would sustain an action for such a slander. That case, however, appears to have been decided on the ground that in all the innumerable actions for slander there were no precedents for alleging illness to be sufficient special damage, and that it would be of evil consequence to treat it as sufficient, because such a rule might lead to an infinity of trumpery or groundless actions. Neither of these reasons is applicable to the present case. Suppose that a person is in a precarious and dangerous condition, and another person tells him that his physician has said that he has but a day to live. In such a case, if death ensued from the shock caused by the false statement, I cannot doubt that at this day the case might be one of criminal homicide, or that if a serious aggravation of illness ensued damages might be recovered. I think, however, that it must be admitted that the present case is without precedent. Some English decisions, such as Jones v. Boyce14; Wilkins v. Day; Harris v. Mobbs15 are cited in Beven on Negligence as inconsistent with the decision in Victorian Railways Commissioners v. Coultas16. But I think that those cases are to be explained on a different ground, namely, that the damage which immediately resulted from the act of the passenger or of the horse was really the result, not of that act, but of a fright which rendered that act involuntary, and which therefore ought to be regarded as itself the direct and immediate cause of the damage. In Smith v. Johnson & Co., decided in January last, Justice Brucevand I held that where a man was killed in the sight of the plaintiff by the defendant's negligence, and the plaintiff became ill, not from the shock from fear of harm to himself, but from the shock of seeing another person killed, this harm was too remote a consequence of the negligence. But that was a very different case from the present. Thus it was held at last that there must be judgment for the plaintiff.

CONCLUSION

12 (1861) 9 HLC 57713 1860) 5 H & N 53414 (1816) 1 Stark 49315 (1878) 3 Ex.D. 26816 (1888) 13 AC 222

The case Wilkinson v. Downton is one of the landmark British case in the history of Common Law, as this was the case which recognized first the concept of the tort of nervous shock in the form of mental psychiatric illness and emotional distress. This was the first time when the judges held that a party may seek recovery for outrageous conduct that causes physical harm or mental distress. In this case court affirmed that the defendant wilfully performed the act which caused harm to the plaintiff. The court held that there was little doubt that Downton’s actions would harm Wilkinson and it therefore must be assumed that he intended to produce these effects. Since this case, the tort of nervous shock has developed a lot in a century’s time and many landmark cases have come which have set the guidelines for intentional infliction of nervous shock and enhanced the way the cases under nervous shock are now being judged. Tort of Nervous Shock is therefore considered as a separate tort, rather than falling under the tort of negligence as before.

BIBLIOGRAPHY

Books:

1. R.K. Bangia, Law of Torts.2. Winfield & Jolovicz, Torts.3. Ratanlal & Dhirajlal’s Law of Torts.

Websites:

1. http://www.en.wikipedia.org/2. www.lawnix.com/cases/3. http://www.duhaime.org/4. www.thelawjournal.co.uk/

Journals:

1. Pace International Law Review 20062. The Albany Law Journal, 1897, Volume 553. Mayne's Treatise on damages, John Dawson Mayne & Sir Lumley Smith, 1899