Intentional Emotional Harm
Tort Recognised
There is a long-standing tort comprising the intentional or reckless infliction of emotional suffering. It is a stand-alone tort. The intentional inflectional of emotional injury is likely to constitute a criminal offence.
The tort of the intentional infliction of emotional suffering is distinct from the negligent infliction of emotional suffering (nervous shock often PTSD), which is within narrower bounds.
The tort is famously based on a late 19th-century case of Wilkinson v Downton. In that case, a person was told, as a so-called practical joke, that her husband had been seriously injured in an accident and that he was lying in distress on the ground. The claimant suffered severe psychiatric injuries as a consequence.
Key Elements
The case established the principle that a person is liable to the victim if he wilfully does an act calculated to cause physical harm to him, infringing his right to personal safety and thereby causes him personal injury.
The action must be wilful, and the respondent must intend or be reckless as to the consequence. The tort has been applied in cases of outrageous and extreme conduct, where the person acts intentionally or recklessly as to infliction of emotional or psychiatric injury.
There must be no justification for the action. It was said that the action must be wilful and malicious. This is an older formulation which requires only that the action must be deliberate and lack justification. There is no requirement for spite or ill will.
Psychological Injury
There must be a recognisable distinct psychiatric or psychological injury, as in the cases of so-called nervous shock. However, the principle potentially covers the infliction of physical injury. Mere anxiety or stress is insufficient.
This requirement is similar to that for negligently causing emotional suffering. The claim for negligence is within narrower bounds in some respects.
Vicarious Liability
The Minister for Justice was found liable for the actions of the gardai to disclose to a newspaper the address of the family where a prisoner related to the plaintiff who had been released following serving time for a rape offence was given temporary accommodation by them, which resulted in it being published and caused hostility such that the family had to move
.
“The proximate relationship between the State and those of its citizens who may be affected by the State’s procurement of sensitive and confidential information is undeniable. That relationship can give rise to a duty of care owed by the State to persons who may be adversely affected by the disclosure or publication of such information. The negligent disclosure of sensitive and confidential information by Gardaí to journalists or other members of the media will give rise to a cause of action for damages for negligence if the disclosure results in reasonably foreseeable loss, damage or injury to a person affected by the disclosure.”
Cases Commentary
Wainright v Home Office [2004] 2 A.C. 406, Lord Hoffman
“[t]he policy considerations which limit the heads of recoverable damages in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v. Downton, Wright J. wanted to water down the concept of intention as much as possible. He clearly thought… that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Commissioners case prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go. If on the other hand one is going to draw a principled distinction which justifies abandoning the rule that damages from mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not. … Wilkinson v. Downton … does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ [2002] QB 1334, 1355 to 1356, paras. 67-72, that Wilkinson v. Downton had nothing to do with trespass to the person.”