Case: Wilkinson v Downton [1987] 2 QB 57
Outcome: considered
turn then to the harassment claim. Strictly speaking, there is no such tort. However, there is an action on the case for the intentional but indirect infliction of harm. In Wilkinson v Downton [1897] 2 QB 57 the defendant told the plaintiff that her husband had been seriously injured in an accident and that she should go and fetch him. This was completely untrue. On hearing the statement the plaintiff suffered a violent shock to her nervous system initially involving vomiting but subsequently producing permanent physical consequences. Some of these involved serious mental illness and included weeks of physical suffering. Wright J said (at 58-59): The real question is as to the 100 l ., 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 (1789) 3 T. R. 51 and Langridge v. Levy (1837) 2 M. &amp; W. 519. 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 nor any motive of spite is imputed to the defendant. It is, however, clear that in Australia a distinction is drawn between psychological harm (mere distress) and psychiatric harm (physical injury). The tort in Wilkinson v Downton is confined to cases of physical injury which may include nervous shock (such as suffered by Mrs Wilkinson) but does not include mere mental distress or anguish. The authors of The Law of Torts in Australia also point to a decision of McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226-7 where a pleading was permitted to go forward to trial in which mere mental distress was alleged. More recently, however, the Victorian Court of Appeal has considered the issue in Giller v Procopets [2008] VSCA 236. In that case the defendant showed, or threatened to show, to others video footage depicting himself and the appellant, his former de facto partner, engaged in sexual activity. One of the claims was that those actions constituted the tort in Wilkinson v Downton . The appellant did not suffer psychiatric harm as a result of the threat but she did suffer severe emotional distress. Ashley and Neave JJ held that the tort did not extend to mental distress: [164]-[166], [471]-[477]. Maxwell P reached the opposite conclusion: [26]-[37]. The ratio decidendi of Giller is that the tort in Wilkinson v Downton is not available unless there is actual physical injury and that extreme mental distress does not constitute physical injury in the requisite sense. It would be inappropriate for me to depart from Giller unless convinced it was plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] . Whilst I can see the force of some of the criticisms which have been made of the present position I could not possibly say that Giller was clearly wrong. Accordingly, I am bound to follow it. This is an allegation that what was suffered was mental or psychological shock which, not being a claim for psychiatric harm, takes the claim outside the principle in Wilkinson v Downton . The words "seriously wounded and injured" when first appearing are in contradistinction to the words "suffered great pain of body and mind, mental and psychological shock and distress" which follow. The natural reading is that the first phrase is concerned with physical injury; the second with mental anguish. I accept that the words "otherwise seriously wounded and injured" may also contain an allegation of physical injury. However, for two reasons I do not read those words as applying to the harassment claim. First , it is unclear from paragraph 50 which of the very many allegations contained in paragraphs 5 to 49 of the pleading (of which only paragraphs 40 to 48 appear to be concerned with harassment) are connected to which of the losses alleged in paragraph 50. Secondly , it is apparent from the proposed pleading that the harassment claim is no longer pressed on the basis of events following Mr Habib's return to Australia. Instead, paragraph 25 of the Proposed pleading alleges: The actions and conduct of the respondent during the material time amounted to sustained harassment and intimidation of the applicant. I assume the words "material time" refer to the period after Mr Habib was picked up in Pakistan until his release from Guantanamo Bay. This must be taken to be so because the allegations contained in the pleading relating to the events which occurred upon Mr Habib's return to Australia, with the exception of the defamation allegations, have been omitted from the Proposed pleading. The pleading of loss in the Proposed pleading is at paragraph 26 and is in these terms: The applicant suffered physical and mental damage caused by prolonged unlawful incarceration, torture and ill treatment in Pakistan, Egypt and Cuba, and unlawful incarceration in Afghanistan. Be all of that as it may, it seems to me that there is the possibility that Mr Habib has a case for misfeasance in a public office and, perhaps, harassment in the Wilkinson v Downton sense. Particularly where there has been so far only one strike out application I do not think that I should deny leave to replead unless I am satisfied that the defects in the statement of claim are incapable of being cured. I am not satisfied of that in the case of the two causes of action I have mentioned. I do not see any basis upon which I may dispose of the defamation allegations as I cannot say they are incapable of succeeding even if they seem out of place in a case such as this. My conclusion, therefore, is that the pleading must be struck out but that there should be a grant of leave to replead the claims with respect to misfeasance in a public office, harassment and defamation. In relation to those matters, particularly the first, it is to be emphasised that the pleading raises issues which are of considerable technical complexity involving as they do the interaction between constitutional and administrative law and the law of tort. Although I have not acceded to the Commonwealth's argument as to the adequacy, from a technical perspective, of the pleadings it may be safely assumed that the next pleading will be held to proper standards.