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. 322
2
R. K. Bangia, Law of Torts, p. 319
3
(1990) 75 DLR
4
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 & ISSUES

5
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. 140
7
Pace International Law Review 2006, p. 127
8
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
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
9
R. K. Bangia, Law of Torts, p. 319
10
(1789) 3 T.R. 51
11
(1837) 2 M & W 519
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 577
13
1860) 5 H & N 534
14
(1816) 1 Stark 493
15
(1878) 3 Ex.D. 268
16
(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 2006

2. The Albany Law Journal, 1897, Volume 55
3. Mayne's Treatise on damages, John Dawson Mayne & Sir Lumley Smith, 1899