University Study Notes: Defences to Trespass and the Rule in Wilkinson v Downton

Defences to Trespass to the Person

  • Consent: Consent must be given freely and cannot be the result of fraud. For instance, in R v Williams [1923] 1 KB 340, the court ruled that actions outside the agreed-upon rules in sports, such as a punch to the jaw, do not constitute consent.

  • Necessity: This defence is applicable in emergency situations. It allows for medical procedures on patients who lack capacity, provided such actions are taken in the patients' best interests, as confirmed in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1.

  • Self-defence: The force used in self-defence must be both reasonable and proportionate to the threat faced. For example, Lane v Holloway [1968] 1 QB 379 illustrated that a defendant's severe retaliation against a much older claimant was deemed disproportionate. Additionally, the context of the event, including the 'heat of the moment,' is taken into account (Cross v Kirkby [2000]). There are also instances, such as in Afriyie v Commissioner of the City of London Police [2024] EWCA Civ 1269, where the use of a Taser was ruled disproportionate when a suspect was resisting but not posing an active threat. Furthermore, a belief of being under attack must be both honest and reasonable, as established in Ashley v CC of Sussex Police [2008] UKHL 25.

  • Other Defences:
      - Contributory Negligence: This is not a valid defence to trespass to the person, as demonstrated in Pritchard v Co-operative Group [2011] 3 WLR 1272.
      - Illegality (Ex turpi causa): This can be raised as a defence, as seen in RO v Gray [2021] EWHC 2770 (QB).

The Rule in Wilkinson v Downton [1897] 2 QB 57

  • Core Principle: This tort addresses intentional indirect harm and requires proof of actual damage for it to be actionable.

  • The Three Elements (O v Rhodes [2015] UKSC 32):
      1. Conduct Element: There must be conduct or words directed at the claimant with no justification.
      2. Mental Element: The perpetrator must have a specific intention to cause physical harm or severe emotional distress; mere recklessness is not sufficient.
      3. Consequence Element: The actions must lead to physical harm or a recognized psychiatric injury.

  • Application Outcomes:
      - In O v Rhodes, the publication of a book concerning past abuse did not meet the required conduct or mental elements for liability.
      - Conversely, in C v WH [2015] EWHC 2687 (QB), a teacher was held liable for abuse when it was determined that the harm caused was apparent, and the conduct was found to be unjustifiable.