This raises a mass of very interesting questions. I'm not sure I have a clear answer to them, or much to contribute on the debate about whether looking at tort in terms of some sort of normative justication (rights or wrongs) or formulaically commits one to some positivism, idealism, or any other -ism. But I do have a few fiddly points of detail.

A. The quia timet injunction
In general, I don't see why one cannot get a /quia timet/ injunction to restrain a defendant from doing something that poses a sufficiently high risk of tortious harm, even if that harm is unintended and the tort does not depend on intention. Many nuisance injunctions for instance are probably of that sort. Of course, it's all a matter of degree. You can't get a general injunction against negligent drivers in general, for a host of reasons. But suppose my neighbour's teenage son is in the habit of joyriding up and down my street. Might I not get an injunction? And why not? There was no doubt that Rhodes intended to publish his book. If there was a good arguable case that doing so was tortious, why not injunct?

(Admittedly, the court would have had to consider s 10 of the Human Rights Act 1998, which "raises the bar" for injunctions which restrain expression. It's slightly odd to me that it doesn't seem to be referred to. But I suspect that was because "good arguable case" barely came into it: the court was in a position to decide that the acts in question were /not/ tortious, even with the claimant putting her best foot forward.)

B. What did it actually decide?
The focus of the discussion on this list has mostly been about the mental elements (intention etc) and the type of harm covered (psychiatric injury vs distress). But actually neither was the main basis of the majority decision. Their focus was on the "conduct element", which they said required "words or conduct directed towards the claimant for which there is no justification or reasonable excuse" [74]. The actual decision (at [76]-[78]) was that there was a clear justification for the publication of true facts about one's own life:

"It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another's right to personal safety. The right to report the truth is justification in itself." [77]

Since the Court said that this conclusion (on what it called the "conduct element") was "enough to decide this case" [80], it would seem to follow that *even if* Rhodes had intended to cause psychiatric injury, that would not have made his conduct tortious. (I'd be cautious about that though, because I'm not sure how free-standing the "conduct element" really is. If the main purpose was to injure, maybe the "conduct" would have been categorised as abusive. I would expect some bleed-through here if the defendant was suitably unappealing. But that is the practical realist in me speaking.)

It is in that context that the court decided that the "mental element" is intention. But, note, not an intention *to cause psychiatric harm* (even if no harm short of psychiatric illness will do for the purposes of liability), but only an intention to cause severe distress (see [87]).

So, where do we end up? On the formulaic view (which I know Rob hates, rightly, but it's the way Rhodes looks at things) we have the following requirments:

1. I am not liable, regardless of my knowledge that harm is likely, and even if I intend to cause harm, unless my words and conduct are not justifiable, where the burden lies on the claimant to show that they are not justifiable. (How different is that, really, from "outrageous" words or conduct?)

2. I am not liable, even if my conduct is unjustifiable, unless I at least intended to cause severe emotional distress, though it is not necessary to show that I intended psychiatric injury.

3. It is uncertain whether I am liable for unjustifiable conduct which is intended to inflict serious emotional distress if my victim's distress falls short of an actual psychiatric illness. That was not in issue in Rhodes, where it had been conceded; Lord Hoffmann left the question open in Wainright (see Rhodes at [73]).

This leaves a wide area of uncertainty:

1. What makes conduct unjustifiable? We know very little. Telling a lie for fun (Wilkinson) is unjustifiable. Telling the truth when you have a reason to do so isn't unjustifiable (Rhodes) and it is probably never unjustifiable even if you don't have a good reason. Threats (even if true, presumably) and "abuse" (though can't abuse be true?) are probably not justifiable.

2. What constitutes "severe emotional harm"? This thread kicked off with the suggestion from Richard Wright that recklessness as to substantial distress was enough. He's definitely wrong about recklessness in England, strictly speaking, because Rhodes deals with that expressly. But how bad does my distress have to be to be called "severe"? Obviously not bad enough to be bound to cause psychiatric injury. What then? One can trade adjectives and adverbs for ever. A judge who wanted to could find emotional distress "severe" if it is only slightly worse than the sort of upset we encounter day by day; or s/he could insist that it must be the sort of distress that gives rise to an obvious risk of psychiatric illness. Contrary to Richard's view, I don't see Wilkinson tells us much except that the sort of distress one might feel on discovering that a loved one has been seriously injured is enough. I wouldn't assume the bar is set very high.

3. Is actual psychiatric injury required? That is left open, and could go either way. In any case, I suspect (but can't prove) that modern psychiatry is readier than it might once have been to attach a sufficiently medical label to distress that has more than very short term consequences, and that ought to be sufficient. Put differently, I think I'd turn Rob's point on its head. Where he says "Making me unhappy doesn't affect my ability to lead my life", I think I'd say "The courts are likely to recognise as a psychiatric injury anything which affects my ability to lead my life (other than for the briefest time)" and that is a low bar. (Incidentally, I think that's right too: the definition of the tort ought not to depend on whether psychiatrist's happen currently to have a definition of a particular state as an illness. As a person who would---outrageously, as I'd like to think---have been categorised as having the psychiatric disorder of homosexuality when I was born, I have some doubt about the scientific rigour of these diagnoses as such. In any event, if you look at the diagnostic criteria for things like depression, you will find that they are not by any means as clearcut as the criteria for diagnosing warts, and do turn a lot on whether the bad feelings are bad enough to be really affecting your everyday life.)

Now suppose that we defined "severe emotional distress" as meaning "distress that is so severe that it carries a substantial *risk* of affecting someone's life in the medium to long term". And suppose we accept as psychiatric injury any moderately prolonged emotional disturbance which affects a person's ability to lead his or her life normally. At that point, what do we actually have?

1. The words or conduct must be unjustifiable, which means in practical terms that they must be untruthful, or threatening, or abusive, or in some other way "outrageous" or antisocial.

2. The defendant must have intended to cause distress severe enough to carry at least a risk of having prolonged effects on the ability to lead a normal life ("severe distress"), but need not have intended that it should have such effects.

3. The conduct must in fact have caused at least moderately prolonged disturbance which affects the victim's ability to lead his or her life normally (a/k/a psychiatric injury).

That seems to me a rational structure, and one that we can get out of Rhodes. And it doesn't really look so very far away from the solutions adopted in other jurisdictions. If you want to put it in terms of rights, it would be something like "I have a right not to have my life seriously screwed up by people who, without good reason, intentionally set out to cause me distress which reasonable people would realise could well screw up my life." I'll live with that.

Paul

PS I'd only note that the structure I suggest could equally be expressed as "unjustifiable conduct where the actor intends to cause psychiatric injury or is subjectively reckless to a risk of psychiatric injury, and where such injury does result". P.


Robert Stevens writes:

> 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.
> [https://i.ytimg.com/vi/UFj0jXMAQzU/hqdefault.jpg]<https://www.youtube.com/watch?v=UFj0jXMAQzU>
>
> Beethoven: Waldstein Sonata Op 53 in C, last movement - YouTube<https://www.youtube.com/watch?v=UFj0jXMAQzU>
> 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.
> [https://www.bing.com/th?id=OVP.NU6ZrTjT9qKyAt2aFzLFiwEsDh&pid=Api]<https://www.youtube.com/watch?v=UYmtzaHwCKo>
>
> Gaslight - Full Movie - GREAT QUALITY 720p (1940)<https://www.youtube.com/watch?v=UYmtzaHwCKo>
> 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
>
> ________________________________
> From: Donal Nolan <donal.nolan@law.ox.ac.uk>
> Sent: 06 December 2018 08:21:38
> To: Wright, Richard; Jason Neyers
> Cc: obligations@uwo.ca
> Subject: RE: ODG: Brayshaw v the Partners of Apsley Surgery and Thomas O'Brien
>
>
> The tort of intentional infliction of emotional or physical harm in modern English law – based on Wilkinson v Downton – is not at all the same as the American tort of intentional infliction of emotional distress. It is not limited to psychiatric injury but extends to physical harm. You cannot recover for emotional distress (no matter how severe), but only for a recognised psychiatric illness. Recklessness will not suffice for the mental element: there must be the relevant intention (although, as the judge held, the intention to cause severe distress will suffice). And there is no requirement of ‘extreme and outrageous’ conduct.
>
>
>
> It’s also worth noting that the judge here was simply following (as he was obliged to!) the decision of the UKSC in O (A child) v Rhodes [2016] AC 219.
>
>
>
> all best
>
>
>
> Donal
>
>
>
> From: Wright, Richard [mailto:rwright@kentlaw.iit.edu]
> Sent: 05 December 2018 22:17
> To: Jason Neyers
> Cc: obligations@uwo.ca
> Subject: Re: ODG: Brayshaw v the Partners of Apsley Surgery and Thomas O'Brien
>
>
>
> I submit that the court misunderstood the requirements for an IIED claim. There need not be an intent to cause or reckless disregard of causing severe emotional distress (these criteria would not have been satisfied in Wilkinson), but rather only an intent or reckless disregard of causing significant emotional distress, which ends up in causing severe emotional distress through outrageous conduct.
>
>
>
> On Wed, Dec 5, 2018 at 4:08 PM Jason W Neyers <jneyers@uwo.ca<mailto:jneyers@uwo.ca>> wrote:
>
> I post on behalf of Mark Wilde:
>
>
>
> Dear all
>
> A very interesting QBD decision with some bizarre facts but which raises a number of textbook tort issues: Brayshaw v the Partners of Apsley Surgery and Thomas O'Brien.
> <https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2018/3286.html&query=(title:(+brayshaw+))>
> The claimant, Mrs Brayshaw, sought a consultation with the defendant GP who was a locum at the local medical practice. She presented with a number of mental health and physical symptoms but it seems she was primarily concerned about her mental well being on this particular occasion. She initially had a telephone conversation with the doctor who was a Pentecostal Christian. When issues of faith came out in the conversation the doctor suggested a 'different way' to 'heal' her and arranged to see her at her home. There then followed s series of consultations purporting to offer 'spiritual guidance' and healing.
>
> During the course of this 'healing' process (which involved private consultations and participation in religious services at a church) it was suggested that the claimant was possessed by demons which were commanded to come out of her body. At one event she attended a preacher spoke about sacrificing an owl, although not in relation to the claimant's treatment. This left her with a fear of owls. (not surprisingly this 'owl phobia' is the feature that attracted the attention of the BBC<https://www.bbc.co.uk/news/uk-england-stoke-staffordshire-46402566> in its Coverage of the case).
>
> As a result of her experiences the claimant suffered psychiatric harm for which she sought damages against the doctor (O'Brien) and the medical practice under vicarious liability.
>
> Mr Justice Spencer delivered a judgment which raises a number of interesting points of law.
>
> In a rare outing for Wilkinson v Downton [1897] 2 QB 57 he held that the principle could not apply here because there was no intent on the doctor's part to cause severe distress or illness; moreover recklessness would not suffice in this respect.
>
> As regards a claim under the Harassment Act 1997 the judge was of the opinion that there was no 'course of conduct' of the type envisaged by the legislation.
>
> However the claim for psychiatric injury under negligence succeed on the grounds that the doctor had allowed his professional judgement to collide with his spiritual beliefs in a manner which was to the detriment of the patient: 'By reason of his zealous promotion of the religious aspects, he became blind to the medical aspects and thereby caused or contributed to the deterioration in the Claimant’s mental health.' [66].
>
>
>
> The claim in vicarious liability against the medical practice failed on the grounds that as a locum he could not be regarded as an employee of the practice. And secondly, that in offering spiritual counselling of this nature he had stepped outside the scope of his employment. Applying Lister v Hesley Hall the judge held:-
>
>
>
> 'I cannot see that religious proselytization can fairly be regarded as a reasonably incidental risk to the business of carrying on a doctors’ surgery. I am fortified in this view by the fact that, as I have found, the Claimant herself knew that Dr O’Brien was not acting in his capacity as a GP but as a friend and Christian: she said so herself in her letter written soon after they met.'
>
>
>
> Regards
>
>
>
> Mark
>
>
>
> Dr. Mark Wilde
> Associate Professor in Law
> School of Law
> University of Reading
> Foxhill House, Room G53
> Whiteknights Road, Earley
> Reading RG6 7BA
> United Kingdom
>
> Phone: +44 (0) 118 378-5674
> Fax: +44 (0) 118 378-4543
> Email: m.l.wilde@reading.ac.uk<mailto:m.l.wilde@reading.ac.uk>
> Web: www.reading.ac.uk/law<http://www.reading.ac.uk/law>
> Railways and Law blog: http://blogs.reading.ac.uk/railways-and-law/
>
>
>
>
>
>
>
> [esig-law]
>
> Jason Neyers
> Professor of Law
> Faculty of Law
> Western University
> Law Building Rm 26
> e. jneyers@uwo.ca<mailto:jneyers@uwo.ca>
> t. 519.661.2111 (x88435)


--
Paul Stanley QC
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D +44 20 7147 7340

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