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OPO v Rhodes: One Step Forward, Two Steps Back?

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About The Author

Ming Lu Ang (Regular Writer)

Ming is a second-year law student at the University of Birmingham. Through writing for Keep Calm Talk Law, she hopes to further her understanding in various areas of law and be kept up to date with the latest legal and commercial developments. Outside the law, she enjoys foreign language dramas and sketching.

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We are all in a world of pain. If it was ever any different way back in the past, it has, by now, most certainly become normalised.

James Rhodes

The rule from the Victorian case of Wilkinson v Downton [1897] had, until recently, been very obscure. In that case, the claimant had suffered violent shock after the defendant had – as a practical joke – told her that her husband had been seriously injured in a car accident. She was awarded damages for the physical suffering that was caused, on the grounds that – in the words of Wright J – a cause of action arises:

[When the defendant]… wilfully [does] an act calculated to cause physical harm to the [claimant]… and… thereby caused physical harm to [the claimant].

This rule had been difficult to apply because it was not certain what specific kind of act sufficed for the purposes of ‘calculated to cause physical harm’. Furthermore, it was not clear what ‘wilfully done’ meant. Indeed, with possible remedies under the tort of negligence and under Section 7(3) of the Protection from Harassment Act 1997 (PHA 1997) available, the importance of this rule had appeared to have been diminished even further.

Nevertheless, this rule rose to new prominence in 2015, as the Supreme Court examined its relevance to the case of OPO v Rhodes [2015], where the claimant did not have a possible claim under the PHA 1997 and under the tort of negligence.

In this case, the claimant alleged that the publication of the defendant’s – who is a renowned concert pianist –autobiography was likely to cause their son extreme emotional distress if he was exposed to the book’s contents. Overturning the Court of Appeal’s judgment in OPO v MLA [2014], the Supreme Court in OPO v Rhodes [2015] clarified that the rule in Wilkinson v Downton [1897] required for the defendant to, at the very least, have intended to cause ‘severe distress which in fact result[ed] in recognisable illness’.

Although this decision may have brought some overdue certainty to this area of the law, this article will argue that the Supreme Court may have gone too far in not accepting severe distress itself to be actionable.

New Clarity: The Supreme Court’s Decision

The Conduct Element

The Supreme Court in OPO v Rhodes [2015] clarified that the conduct required for the tort to arise is ‘words or conduct directed towards the claimant for which there is no reasonable excuse’. It also recognised that, for liability to arise, it must result in a recognisble illness; severe distress is insufficient.

This is consistent with the way Wright J interpreted the rule in Wilkinson v Downton [1897]. There, Wright J found the defendant liable not on the nature of his conduct, but on the fact that his act was ‘calculated to cause physical harm’.

However, one could go further and argue that any conduct, inherently wrongful or otherwise, should suffice: after all, the unique feature of that rule is the indirectness of the physical harm inflicted. Nevertheless, the Supreme Court limited this scope somewhat, by requiring the defendant to have had no ‘reasonable excuse’ in doing what he did. In doing so, future courts will also need to consider the importance of free expression when determining whether there is a reasonable excuse. Liability is likely not to arise if the act is not ‘deceptive, threatening or possibly abusive’.

Mental Element

The Supreme Court in OPO v Rhodes [2015] noted that the defendant must intend to cause at least severe mental or emotional distress. This might at first glance, seem too narrow; a defendant could easily insist that he did not intend to cause the claimant any severe mental or emotional distress. However, as John Finnis has argued, in doing what he did, the defendant merely adopts the risk of severe distress not materialising because of the inherent inevitability of consequences. Therefore, if severe distress were to materialise, he must have an actual intention to bring it about as it did not happen merely as a side effect of his act.

Consequence Element

In OPO v Rhodes [2015], the Supreme Court has highlighted that imputation as ‘a matter of law’ is ‘unsound in principle’ and has ‘no proper role in the modern law of tort’. However, it still concluded that subjective intent may still be imputed as a ‘matter of fact’ by examining the defendant’s conduct in all the circumstances, with the qualification that the defendant does not always necessarily intend the natural consequences of his act.

Herein lies the importance of the consequence element requiring physical harm or recognised psychiatric illness. If physical harm or recognised psychiatric illness results, an intent can be imputed to the defendant. Indeed, this is consistent with Lord Hoffmann’s reading of the rule in Wilkinson v Downton [1897] in Wainwright v Home Office [2003]. Lord Hoffmann considered it possible to impute an intent to cause harm to the defendant if it obviously would materialise as a result of the defendant’s deliberate act, even though the defendant may not have appreciated or intended for it to do so.

Bye, Bye Goldilocks Zone: Scrutinising the Decision's Merits

The Supreme Court’s articulation of the rule in Wilkinson v Downton [1897] in OPO v Rhodes [2015] may be a little too narrow. It certainly overlooks that in Wainwright v Home Office [2003], Lord Hoffmann had suggested – albeit obiter – that severe distress short of harm be actionable. Consistent with this, Lord Neuberger, with whom Lord Wilson agreed, did note in OPO v Rhodes [2015] that:

It is not entirely easy to see why, if an intention to cause the claimant significant distress is an ingredient of the tort and enough to establish the tort in principle, the claimant should have to establish that he suffered something more serious than significant distress before he can recover any compensation.

This is a pertinent question. After all, it does not seem sound law that a defendant should be able to escape liability merely because his victim – being a person of stronger will – does not succumb to suffering from a recognised psychiatric condition as easily as others.

Indeed, it is therefore submitted that there is value in recognising that severe distress short of harm be actionable. To hold otherwise leaves the law somewhat confused. For one thing, it means that the line between a successful and unsuccessful claim under this tort is the infliction of physical injury, however minor. Furthermore, it does not accord with Section 3(2) of the PHA 1997, which holds that damages may also be awarded for ‘any anxiety’ caused by apprehended and unintentional harassment. It must not also be overlooked that, the classification between severe distress and recognised psychiatric illness may not be that clearly demarcated, as the introduction to the DSM-IV acknowledges:

[A]lthough this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of ‘mental disorder’.

This was acknowledged by the Law Commission in their report on Liability for Psychiatric Illness, where it recognised that the diagnostic criteria contained in the DSM-IV and ICD-10 may not always be sufficient to ‘distinguish those with the greatest impairment of functioning’. They noted that in the Bijlmermeer disaster of 1982 – in which an Israeli plane crashed into flats in the Netherlands, there were people who did not satisfy the criteria for Post-Traumatic Stress Disorder but who would need similar levels of care as those who satisfied it.

A Way Forward?

The courts may be unwilling to recognise severe distress as actionable because of the fear of opening the floodgates to claims from claimants who suffer from either feigned psychosis or fabricated harm. However, this worry seems overstated. Medical literature – such as a six-year study into the medical state of 96 road accident victims – has suggested that this is not common, because:

The prospect of greater financial reward did not appear to be a major factor leading to reports of increased disability or to delay in return to full activity, and the medical and psychosocial outcome for claimants and for those not able to claim compensation was very similar.

Nevertheless, it is undeniable that – as has been documented – cases of feigned psychosis or actual fabrication do sometimes arise. Therefore, there may be a need to restrict a wide reading of the rule in some way.

In this respect, the approach of the courts in the courts in the USA has provided a successful example of how this can be done. As the Court of Appeals of Kentucky held in Banks v Fritsch [2001], the tort functions as a gap-filler, providing a remedy in cases where there is none via traditional actions. There are three elements to be satisfied for a claim to be successful. Firstly, the defendant must intend to cause emotional distress with his conduct. However, the US courts have also allowed claims if the defendant shows a reckless disregard for the high likelihood of his conduct causing emotional distress. Secondly, the defendant’s conduct must be so outrageous that it goes beyond what is decent and must be deemed as intolerable in the eyes of a civilised society. Thirdly, the plaintiff must suffer emotional distress. Generally, as evident from the New Mexico Supreme Court’s decision in Folz v The State of New Mexico [1990], the level of emotional distress required by the American courts is that which:

[I]s severe and debilitating, and … a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case.

The requirements of the conduct to be so outrageous and the emotional distress to be so severe rightly recognise the unjustness for the claimant to go without being compensated. This also means that not all emotional distress is necessarily actionable – only the meritorious ones will be. By adopting a similar stance to the American courts, the fear of opening the floodgates in the UK through recognising severe distress as actionable may be alleviated.

Human Rights as a Background Influence

Additionally, the Human Rights Act 1998 (HRA 1998) may also exert an influence on the common law to support the recognition of severe distress as actionable. There are already compensatory awards by the European Court of Human Rights for non-pecuniary losses like distress  in Lopes Ostra v Spain [1994] and psychological harm in Z v United Kingdom [2001]. Such awards may come to shape English law: indeed, although there is no provision that requires the rights under the European Convention of Human Rights (ECHR) to be applied horizontally, it does not necessarily mean that Parliament has had no intention for the ECHR to help develop common law.

For example, as Arden LJ has argued extra-judicially, it is clear that Parliament has provided a direct right of action for breach of the ECHR in the form of  Section 7(6) of the HRA 1998, which makes the UK courts a public authority for the purposes of the HRA 1998.

Furthermore, the influence of the ECHR on the common law is evident from the development of the law on breach of confidence. In fact, Lord Nicholls in Campbell v Mirror Group Newspapers Ltd [2004] said:

[Following the HRA 1998, the] cause of action [for breach of confidence] had firmly shaken off the… constraint of the need for an initial confidential relationship.

Justice in its Various Forms

Corrective justice may demand that the defendant compensate the claimant for the emotional distress caused. According to the Aristotelian conception of corrective justice expounded by Ernest Weinrib, the emotional distress caused could be seen as correlatively structured between the claimant and defendant. The defendant possesses a duty not to infringe the claimant’s right not to be injured; as Justice Cardozo explained in the US Supreme Court’s decision in Palsgraf v Long Island Railroad Co [1928]:

What the plaintiff must show is ‘a wrong’ to herself… a violation of her right, and not merely a wrong to someone else.

Ernest Weinrib further explains that only through the defendant’s compensation of the emotional distress caused to the claimant will it restore ‘the notional equality with which … [they] enter the transaction’. However, law and its legal institutions are socially finite goods. It may thereby make sense to limit their availability according to distributive justice principles such as relative merits and needs. However, if for instance, the stance taken by the American courts is adopted in the UK courts, the requirements of the conduct to be so outrageous and the emotional distress to be so severe help in ensuring that only claims reaching a certain threshold – and only these claims – would be entertained.

Conclusion

Jurisprudence from the USA shows that, despite the concerns which the Supreme Court appeared to exhibit in OPO v Rhodes [2015], recognising the actionability of severe distress need not necessarily lead to a flood of claims. Where the claimant has clearly suffered a wrong as a result of the defendant’s act, corrective justice demands for the claimant to be compensated – and rightly so. Especially where there is no principled – or indeed, medical – distinction for what counts as actionable, it makes the recognition of severe distress actionable all the more warranted. It is therefore hoped that the impact of the ECHR will influence the UK courts to start recognising such a tort, or mandate an expansion of the rule from Wilkinson v Downton [1897] that they forewent in OPO v Rhodes [2015].

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Tagged: Human Rights, Media, Medical Law & Ethics, Supreme Court, Tort Law

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