The claimant had sued her former employer for post-traumatic stress resulting from alleged harassment at her place of work. The claimant appealed against an order refusing damages. The court had held that outside the 1997 Act which was not in force at the time, there was no tort of harassment. The question was the extent of the tort of causing intentional distress. The law provided an alternative. The claimant must pursue either criminal or civil proceedings but not both. The law had recognised extensions of the term ‘molest’ as between family members.
Held: Before the Act there was a right only for an injunction, and not for damages for acts which themselves fell short of a tort. Whilst the 1861 Act remained in force, and where the public authorities refused to prosecute, a private claimant had to choose between the alternatives of a private prosecution, or an action for damages. For a claim for damages to succeed there must be physical or psychiatric damage, and an intention to create such harm. Although the tort is commonly labelled ‘intentional infliction of harm’, it was not necessary to prove actual (subjective) intention to injure; it was sufficient to prove that the conduct was ‘calculated’ to do so in the sense of being deliberate conduct which was likely in the nature of things to cause injury .
Hale LJ analysed the tort in Downton: ‘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.’
Lord Justice Brooke, Lady Justice Hale and Mr Justice David Steel
Times 07-Dec-2001, Gazette 10-Jan-2002,  EWCA Civ 1721,  3 All ER 932
Offences against the Person Act 1861 45, Protection from Harassment Act 1997
England and Wales
Cited – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Cited – Janvier v Sweeney 1919
During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some . .
Cited – Burnett v George CA 1992
Cited – Pidduck v Molloy CA 1992
The Act did not allow for a non-molestation order to be made once an unmarried couple had ceased to cohabit. . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Cited – OPO v MLA and Another QBD 18-Jul-2014
A boy now sought an interim injunction to restrain his father, the defendant classical musician, from publishing his autobiography which mentioned him. The book would say that the father had suffered sexual abuse as a child at school.
Held: . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about his life. It was to contain passages she said may cause psychological harm to their 12 year old son. Mother and son lived in the USA and the family court here had no jurisdiction to . .
These lists may be incomplete.
Updated: 07 January 2021; Ref: scu.167208