Date: Mon, 21 May 2007 01:12

From: Neil Foster

Subject: OBG again - a question

Dear Rob et al

It seems to be accepted in Australia at least that it is actionable to do something with the intention of causing someone "mere" distress (under Wilkinson v Downton) so long as the result of the distress is something more serious, such as a recognised psychological condition - see McFadzean and ors v CFMEU [2004] VSC 289 at [123], [127]; Clavel v Savage [2004] NSWSC 292.

If you then shift the facts of the very sad case of W v Essex County Council [2000] 1 FCR 568; [2000] UKHL 17; [2000] 2 All ER 237; [2000] 2 WLR 601 (HL holds an arguable cause of action in negligence against local authority where they carelessly placed a disturbed foster child with the W family who then interfered with the W children, and W parents claimed for psychological effects of this) to a case where someone intends to harm the children knowing the effect on the parents will be distress, and they suffer psychological harm, you are close to Rob's example. (But not there completely, of course.)

Regards
Neil F

Neil Foster
Newcastle Law School
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Robert Stevens 18/05/07 9:34 >>>

Rod wrote

Rob, I think, asked why causing emotional distress or physical discomfort by the use of unlawful means shouldn't be actionable. Surely the answer might be that the law is only interested in regulating the weapons used in fights of a certain severity. I can't see any great enthusiasm for making it a tort by D to C for D to threaten T with violence unless T calls C distressing names - a threat T cravenly complies with! T, no doubt, ought to be able to complain. But a tort to C?

I wonder what other list members think, offlist if preferred. If I beat up children with the intention of causing their parents distress, should the parents have a personal claim for their loss? Does anyone know of a relevant case? (I take it as given that the intentional infliction of distress is not in itself actionable. I intentionally inflict misery on students all the time.)

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