Wilkinson v Downton Tort in Australia


The Wilkinson v Downton is a popular Tort Law case which is traditionally considered as an action on a particular case that involved intentional infliction of mental harm. The case brief goes something like this: In the year 1896, April 9, Thomas Wilkinson who happened to be the husband of Mrs Lavinia Wilkinson who was also the plaintiff, attended a race meeting and on the same day in evening, the defendant visited the plaintiff’s house and said that while he was returning in a wagonette after watching the race with his friends, Mr. Wilkinson met with a bad accident in which he broke his legs[1]. The defendant also told Mrs. Wilkinson that her husband was lying at the Elms Publichouse at Leytonstone and the defendant was requested by Wilkinson to call his wife taking a cab (Carroll, 1983). But all these statements made by him were fake ones (Rabin, 1995). The consequences was too bad, where the wife (the plaintiff) believed the statements were true and she was so shocked to hear them that she fell seriously ill. She also spent some money to buy the tickets for the persons who she had sent to the spot to look after her husband.

The case was raised in the court and the jury calculated the expense of the railway fares at 1s. 10.5d and also evaluated the damages caused due to the nervous shock to be 100l. It was challenged by the defendant that so far as the mental and physical shock caused to Mrs. Wilkinson was concerned the action could not be supported. The interesting part of the case lies in the fact that with an aim to provide a remedy for the problem, Wright. J invented a new law (Conaghan and Mansell, 1999). According to him while the compensation provided for the wages of the train was although appropriate for the purpose of deceit but it was not at all a proper compensation for the nervous shock that resulted due to the fake statements as the shock resulted from mere fact when the defendant made the statement which was believed by the plaintiff and not from it being acted upon. But Wright J said that verdict given by the jury could be supported on other grounds, he said:

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.” (Elliott and Quinn, 2001)

According to Lord Hoffmann whose judgement was agreed by the rest of the court, he suggested that Wilkinson v Downton case had little indifference from the cases of negligence and did not have any major significance in the modern law (Dias and Markesinis, 1984). He was not at all satisfied by the attempt made by Wright J to distinguish the case from Coultas where he believed that Downton was not only negligent but he had the intension to cause injury as Hoffmann believed that it was obviously not the intension of Downtown to cause any mental injury to the plaintiff but he only wanted Mrs Wilkinson to scare a bit.

The views of Lord Hoffman were not left unchallenged, although it is difficult for the courts of England to contradict the judgements of the highest court, even if they are technically obiter and likely the views of Hoffman were also supported by the High Court of Australia (Green, 1939). The Wilkinson v Downton case cannot be explained as easily as Hoffmann argued, as liability in negligence due to mental or psychiatric harm was not developed sufficiently in 1919 which could accommodate the actual facts of the case, where the liability for communication of the fake news still happens to be a controversial aspect of the lawof psychiatric injury. But in the present age negligence plays a significant role in the cases of intentional wrongs.

It was suggested by Lord Hoffmann that the common law could actually move forward from the Wilkinson v Downton case and create a tort of intentional harassment that had caused harm without even showing the actual bodily or psychiatric illness (Arvind and Steele, 2013). The tort emerged out of a cause of action like the Wilkinson v Downton. The entire process was the part of a movement that was introduced in the late 19th century which created a broad range of personal interests that were safeguarded by the tort law.

About a century ago Roscoe Pound in his seminal article produced his work that one of the primary demands that can be made by law happens to be the inviolability of the physical person, and this law regulates in the society in which they are members. Although the law previously was only concerned of physical injury but in the later stage it also included the mind too in its sphere. In the Lynch v Knight case Lord Wensleydale mentioned that ‘Mental pain and anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” (Young, Kane and Nicholson, 2006). It recognized the fact that in cases where mental harassment was caused due to committing some recognized tort, there could be recovery for a mental distress.

But there existed an important and exceptional example where the law actually supported an interest in freedom arising from mere mental harm and mental distress of an evanescent kind that was tort of assault. The courts were always prepared to give compensation for damages if there was a case of pure assault, even if there was no instance of battery where the plaintiff experienced a momentary apprehension of a blow being struck.

Towards the beginning of the 20th century, new attitudes were evolving where new avenues were being opened up for the recovery of the cases that involved mental harassment [2], even though there was no existence of the traditional tort and did not have any guarantee regarding the validity of the claim. Talking about intentional torts, this was why the decision of J Wrights’ decision on the Wilkinson v Downton case is significant. This was for the first time the judge was ready to consider that there was a legal right to personal safety which needed a tort remedies that would address any willful act that have been caused in order to cause a physical harm and where there was actually a physical harm. The original attitude was expressed in the statement made by Lord Wensleydale in the case Lynch v Knight, according to him the law cannot value the mental agony and pain and does not pretend to redress when the unlawful act complained of causes that alone.

In England the Wilkinson v Downton was mostly followed over the next fifty year that was quite similar to the verdict given in the Hickey v Welch. In various cases of negligence the courts began to recognize the fact that emotional injury can cause injury to the health also and deserved the compensation rightfully. There were three factors that contributed to the shift to the shift in the judicial attitudes. There have been extensive medical researches on the aspects of emotions and their affect on human beings that laid the foundation stone for the other developments. Walter B Cannon illustrated that aspect like fright and nervous shock can produce immense damages to the body[3]. In England the Wilkinson v Downton case, Wright J was of the opinion that if the defendant performed a task intentionally that was calculated to result in a physical harm then it resulted to a good cause of action. In a similar case Hickey v Welch Goode J’s suggestion was formulated with regard to intentionally causing mental distress to the plaintiff, which caused nervous disorder.

In the 1930s there occurred a change in the viewpoint of the court. It appeared that the courts were gathering confidence in their tasks and thus they felt they were able to abandon the need for the physical injury and the likelihood of resulting in a mental distress. Instead of this they started to apply the rule of liability in terms of the likelihood of mental harm. It seemed that they were questioning the importance of physical harm as according to them the defendant did not actually have the intention to cause a harm of serious nature. Moreover the knowledge on the impacts of emotions on the mind and body made it more effective to prove the actual existence and effect of mental agony for a particular case.

Another example may be cited in the Kurpgeweit v Kirby in which the defendant was accused of humiliating the plaintiff in the eyes of the neighbourhood, where the plaintiff was asked to come out at night apparently to visit an ailing woman[4]. It was held by the court that this fell under the class of cases in which a person by a willful was accused of causing mental distress to some other person and also added that if another wrong could be proved there were deceit and also a chance of technical battery.

In the Wilkinson v Downton case, Wright J had to introduce a new tort for the plaintiff a there were no existing tort that could be considered apposite for the facts for the case. Consequently the tort that was created by him covered a wide range of aspects, from any type of conduct that causes physical harm to the plaintiff (Smith, 1995). Although he must have opted for something more limited or something which was more specifically involved the intentional physical harm through shock, but he did not do so. The case of Wilkinson v Downton principle has been seldom, but if it was invoked with exception to the shock cases, it had the potential to tackle those cases that had no connection with shock or mental stress.

A possible explanation of a relationship between the Wilkinson v Downton[5] and the previous or older torts is that the aim of the Wilkinson v Downton case is to cover the case where the harm has been done intentionally but also indirectly and therefore an action can be created for the intentional harm caused to the person in order to cover the gaps left by the limitation of trespass to direct harm (Magnus et al, 2004). The best explanation that can be provided to illustrate the relationship between the Wilkinson v Downton and trespass torts can be given by looking at a parallel problem of the mental or bodily harm that was negligently inflicted. The trespass torts also covered the harm inflicted directly but negligently. The situation was resolved in 1833 when Williams v Holland[6] case confirmed that in those cases which caused unintentional harm, the case could be tried under modern tort of negligence, that knew no limitations of direct or indirectness.























Arvind, T. and Steele, J. (2013). Tort law and the legislature. 1st ed. Oxford: Hart Publishing.

Carroll, S. (1983). Jury awards and prejudgment interest in tort cases. 1st ed. Santa Monica, CA: Rand.

Conaghan, J. and Mansell, W. (1999). The wrongs of tort. 1st ed. London: Pluto Press.

Dias, R. and Markesinis, B. (1984). Tort law. 1st ed. Oxford [Oxfordshire]: Clarendon Press.

Elliott, C. and Quinn, F. (2001). Tort law. 1st ed. Harlow: Longman.

Green, L. (1939). The judicial process in tort cases. 1st ed. St. Paul: West publishing co.

Magnus, U., Marti´n-Casals, M. and Boom, W. (2004). Unification of tort law. 1st ed. The Hague: Kluwer Law International.

Rabin, R. (1995). Perspectives on tort law. 1st ed. Boston: Little, Brown.

Smith, S. (1995). Tort cases in large counties. 1st ed. [Washington, D.C.]: U.S. Dept. of Justice, Office of Justice Programs.

Young, G., Kane, A. and Nicholson, K. (2006). Psychological knowledge in court. 1st ed. New York: Springer.




[1] The plaintiff’s statement of claim speaks of ‘false statements wilfully and maliciously made by the defendants to the plaintiff, intended to cause and actually causing her physical injury’.

[2] See Mullany NJ and Handford PR, Tort Liability for Psychiatric Damage (Sydney, Lawbook Co, 1993) p 290.

[3] See Cannon WB, Bodily Changes in Pain, Hunger, Fear and Rage (Appleton & Co, New York, 1915).

[4] Kurpgeweit v Kirby (Neb 1910) 129 NW 177 (below).

[5] Despite this, Wilkinson v Downton was invoked at first instance in C v D [2006] EWHC 166.

[6] (1833) 10 Bing 112