Wong v Parkside Health NHS Trust & Anor

The tort of intentionally causing harm requires actual physical harm or a recognised psychiatric illness. The defendant must intend to violate the claimant’s interest in freedom from that harm. Intention may be imputed where the likelihood of such harm, combined with deliberate conduct, makes it sufficiently likely that the defendant cannot deny having meant the consequence.

Before the Protection from Harassment Act 1997, the common law recognised no separate tort of intentional harassment causing only distress. Conduct could be restrained where necessary to prevent an existing tort or protect access to the court, but damages required an actionable common law wrong. A concluded private prosecution for assault may also bar reliance on that assault in later civil proceedings under section 45 of the Offences against the Person Act 1861.

The appellant alleged that a fellow employee had participated in a workplace campaign involving hostility, interference with property, a threat and an assault. She claimed that the conduct had caused physical and psychiatric injury. Her private prosecution of the employee for common assault had already resulted in a conviction, compensation and costs.

Mr Recorder Talbot QC struck out the claim against the employee in the Mayor’s and City of London County Court. He held that the common law had recognised no tort of harassment before the Protection from Harassment Act 1997 and that the pleaded conduct could not satisfy the principle in Wilkinson v Downton [1897] 2 QB 57. The appeal concerned the scope of intentional infliction of harm and whether a separate common law tort of harassment had existed before the 1997 Act.

1. Appeal dismissed. Lady Justice Hale delivered the judgment of the court. The Recorder had correctly struck out the claim against the second defendant.

2. The tort recognised in Wilkinson v Downton [1897] 2 QB 57 requires actual damage consisting of physical harm or a recognised psychiatric illness. The defendant must intend to violate the claimant’s interest in freedom from such harm. An actual desire to cause the harm is unnecessary. Intention may be imputed where the harm is sufficiently likely to result from conduct in which the defendant deliberately engaged.

3. The pleaded threat and assault were the most serious allegations. Section 45 of the Offences against the Person Act 1861 barred the appellant from relying on the assault in later proceedings after her private prosecution had resulted in conviction and payment of the sums ordered. Under Masper v Brown (1876) 1 CPD 97, the statutory expression “same cause” meant the assault itself, rather than merely the same cause of action.

4. The appellant had conceded that the threat did not cause her illness. What remained was a catalogue of rudeness, unfriendliness and workplace interference. Although unacceptable, that conduct was not sufficiently likely to infringe her right to personal safety for an intention to cause physical or recognised psychiatric harm to be imputed.

5. Before the Protection from Harassment Act 1997, the common law had not developed a separate tort of intentional harassment extending beyond established torts, including intentional infliction of harm. The pre-1997 authorities principally concerned preventive injunctions. They developed existing torts or permitted ancillary restraints needed to prevent unlawful conduct and protect effective access to the court; they did not establish a right to damages for harassment falling short of an actionable wrong.

6. The allegations therefore disclosed neither intentional infliction of harm nor any other tort recognised when the events occurred. The appeal was dismissed, with £6,000 payable on account of costs and the balance subject to detailed assessment.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court affirmed the order striking out the claim against the second defendant.

2. Mayor’s and City of London County Court: Mr Recorder Talbot QC struck out the claim against the second defendant on 14 December 1999. He held that there was no retrospective common law tort of harassment and that the pleaded conduct did not satisfy Wilkinson v Downton [1897] 2 QB 57. The claim against the employer was adjourned.