Sweeny98. These cases were taken as authority for the proposition that where the defendant’s conduct was calculated to cause the claimant harm and such harm (as opposed to simply anxiety and distress) resulted, a claim could be sustained99.
52.The House of Lords reviewed this line of authority in Wainwright v Home Office (discussed in paragraph 32 above). The trial judge had permitted the claimants to recover damages for being strip searched in a manner that breached Prison Rules. Wilkinson v Downton doctrine could extend to circumstances where the officers had said something – i.e. the instruction to remove clothes – which had then caused the claimant to do something to himself – i.e. take his clothes off – which had in turn caused him psychiatric injury. The judge also found that the doctrine could extent to the claim of the mother who had suffered distress, but no psychiatric injury. The House of Lords disagreed. Lord Hoffman emphasised that there was no finding in this case that the officers had intended to cause harm; the trial judge had found they acted in good faith throughout. He doubted that a Wilkinson v Downton tort was necessary where psychiatric harm was suffered, as if the defendant was at fault in causing this, liability in negligence could in any event now result100. Where the claimant suffered distress, short of psychiatric harm, Lord Hoffman considered – without having to decide the question – that if common law liability resulted it should only do so where the wrongdoer intended to cause distress in the strictest sense of the word, i.e. wanted to bring about that result. However, he doubted where liability for consequences short of psychiatric harm would arise at all outside of the circumstances prescribe by the Protection from Harassment Act 1997.
53.As regards the acts of public officials, it is likely that if they acted in bad faith, reckless as to the harm caused and damage resulted, a claim in misfeasance would in any event lie.
98 [1918-19] All ER Rep 1056 CA.
99 Wong v Parkside Health NHS Trust (above).
100 However, such a claim would not be possible if the conduct occurred in circumstances where the defendant owed no duty of care to the claimant.