Donal’s raising of the UK Supreme Court’s decision in Rhodes v OPO ( https://www.bailii.org/uk/cases/UKSC/2015/32.html ) , and the resultant divergence of English and US law (indeed of English law and the law everywhere else as far as I know) raises the issue of which jurisdiction (if any) is getting this right? What should the law be?

I’ve been wondering whether to write something about Rhodes v OPO for a long while, so the indulgence and advice of colleagues would be helpful. I wrote this post this morning, but I have got carried away and it is rather long (sorry).

On the view that tort law is a set of formulas for obtaining judgment from a court for a remedy in your favour (the “civil recourse” view if you will) then different legal systems can construct different formulas in different ways and there is no correct view. It is like driving on one side of the road or the other, or being able to turn at a stop light. The rules could be more or less anything, so long as they make internal sense. One might be practically better than another, but that will be hard to show. The law is given determinatio through decisions of the courts (although that is always contingent on the ultimate appellate court not changing its mind. The point of law is then to draw lines where, absent the law, there are none

An alternative view is that what constitutes a wrong to another is not, at least in the central case, determined by the positive law at all. There are wrongs that any legal system ought to recognise. Some wrongs (eg breach of copyright) may be matters of (policy?) choice, but things as fundamental as our bodies or ability to reason are not. On this view an ultimate appellate court could get the rules wrong. The ability to sue is a jolly good thing, but not constitutive of what a wrong is.

James Rhodes is a famous world class concert pianist (here he is playing Beethoven https://www.youtube.com/watch?v=UFj0jXMAQzU ). He wrote a memoir detailing the physical and sexual abuse he suffered as a child, and his mental health problems, and difficulties with alcohol and drugs.

Beethoven: Waldstein Sonata Op 53 in C, last movement - YouTube www.youtube.com The monumental finale to Beethoven's Waldstein sonata - composed just after taking delivery of a shiny new, improved piano. Like a kid at Christmas he went t...

His ex-wife, the mother of his 11 year old child, sought an injunction restraining publication. She did so on the basis that their son suffered from Asperger’s syndrome (and other mental health problems) and would suffer emotional distress and psychological harm if he were exposed to the material in the book. (The son resides in the USA where there were no plans to publish the book.)

The result was that no injunction was awarded. That seems to me to be obviously correct, but for a reason not mentioned by our Supreme Court. Assuming that publishing this book if it foreseeably caused the child a recognised psychiatric illness would constitute a tort, should an injunction be awarded to prevent publication? The answer is, I think, no. The threat of the wrong is insufficiently imminent. Just as you cannot get an injunction against careless drivers in your neighbourhood who might run you over, the mother should not have been able to obtain an injunction to prevent a wrong that was somewhat speculative. Maybe the child would google his father’s name, find out about the book and might suffer resultant psychiatric harm, but at the time of trial that still looks unlikely. To award an injunction would curtail James Rhodes’ freedom in a way that seems heavy handed when we don’t yet know whether his conduct will cause anyone any harm. It is at this, remedial stage, that Rhodes’ interest in his ‘freedom of speech’ should have been considered.

The Supreme Court did not see this case as about whether an injunction should be awarded, but instead as one about the anterior question of the elements of the “liability under Wilkinson v Downton” (torts named after cases is a hallmark of the formulary view). The majority (Lady Hale, Lords Toulson, Clarke and Wilson) set out the elements of the ‘tort’ as Donal describes

1.      Conduct directed towards the claimant for which there is no reasonable excuse

It was upon the lack of this element of the claim that the defendant won, and would win if they suffered damage

2.      Recognised psychiatric illness

3.       Intention to cause physical harm or severe mental or emotional distress

Again, the claim would fail on the basis that this element was not satisfied.

One of the difficulties with the formulary view is working out what the relation is between the formulas. So, if his son did suffer a recognised psychiatric illness could he claim damages by relying upon another one, the “tort of negligence”? On its face he could as the elements of that formula are satisfied, but do the ‘policy’ arguments in favour of freedom of speech that led to limits being placed on the Wilkinson v Downton claim in Rhodes not equally apply, indicating that the claim should fail?

My view is that if the boy does suffer a recognised psychiatric illness he should recover, and that the UKSC are confusing the possible bases for a claim where someone suffers distress or psychiatric illness.

First I consider that English law is correct to draw the distinction between distress (however severe) and psychiatric illness that it does, and US law wrong to fail to do so. Making me unhappy doesn’t impair my ability to lead my life. Damaging my ability to reason does, indeed it is probably the most profound and fundamental wrong other than killing me that there is. So, I should and do have a right to my mental health, but not to any level of happiness.

Once that is accepted, this right should operate in the same way as my right to my body. If you foreseeably negligently injure me I should have a claim. It should not avail James Rhodes to invoke freedom of speech to avoid a claim for damages if his son is so injured.

But, take another example given by the Supreme Court

“The defendant has a dispute with his neighbour. Tempers become flared and he makes a deliberately insulting remark. He intends it to be upsetting, but he does not anticipate or intend that the neighbour will suffer severe emotional distress. Unfortunately the episode and in particular the insult have that effect, and the distress leads to a recognised form of psychiatric illness.” [86]

Here there should be no claim. The defendant could not reasonably have foreseen the psychiatric illness. That he intended something else that was harmful (misery) should be irrelevant (contra the UKSC even where serious). The infliction of misery in the ordinary run of human life should not be actionable (teachers of law are employed to deliberately inflict misery on the young).

Second, US law may be correct in making the intentional infliction of emotional distress actionable (in some circumstances) but not because we have a ‘right’ to happiness. Just as we don’t have some kind of general right not to suffer economic loss (if that were even conceivable) we don’t have a general right not to be made unhappy. But someone who deliberately causes us economic loss or emotional distress might be held liable not because they are committing a wrong (or tort) but because they are not. Civilian jurisdictions are familiar with the idea of “abuse of rights”: deliberately exercising a liberty you have in order to cause another loss (really a doctrine of abuse of liberties). This ground of liability requires intent, its rationale is the deliberate abuse of a liberty with the goal of causing another harm. Just as intentionally causing economic loss may (in some cases) be justifiable on this basis, despite the absence of any right infringed, so may be the intentional infliction of distress.

The problem with an “abuse of rights” doctrine is that it seems to broad, and catches behaviour that is either justifiable, or arguably so. In the context of economic loss it would on its face stifle trade union activity, in the area of emotional distress the problem of a general doctrine is set out by Lord Hoffmann in Wainwright v HO

“In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation.”

So, in its usual cautious piecemeal fashion, the common law has pockets of “abuse of rights” doctrine where difficult policy based line drawing questions don’t really arise (eg where causing the economic loss is independently unlawful).  So, the American Restatement says

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress”

And Canadian law has a similar rule where the conduct is “extreme flagrant or outrageous”. This seems to me justifiable in clear cut cases.

So, the modern term ‘gaslighting” is drawn from a 1938 English play “Gaslight”. Another Anglo-American comparison is that this was made into two movies, one English from 1940 starring Anton Walbrook and the stage actress Diana Wynyard, and an American remake in 1944 with Charles Boyer and Ingrid Bergman. The former is brilliant (and can be watched on youtube https://www.youtube.com/watch?v=UYmtzaHwCKo ) the latter not so much. The ending is particularly good. I remember my mother punching the air with glee when we watched it together. (Spoiler alert).  The villain tries (and fails) to drive his wife mad, but does deliberately cause her great distress. I think that ought to be actionable in England, and everywhere else.

Gaslight - Full Movie - GREAT QUALITY 720p (1940) www.youtube.com Gaslight is a 1940 British film directed by Thorold Dickinson which stars Anton Walbrook and Diana Wynyard, and features Frank Pettingell. The film adheres more ...

Rob