Law of Tort Tutorial Question 1 (Week 5) Poon Tak Sin, Judy Mok Shun Wah, Arthur

Intentional Physical Harm Other than Trespass to the Person

Intentional Physical Harm other than Trespass to the Person ESSENTIAL ELEMENTS: D: Intention -- cause emotional distress P: Physical Harm -- caused by emotional distress Physical harm to P is an Indirect result from D’s act Intention to produce harm may be imputed D plays joke to P P is frightened P falls down – gets hurt

Tutorial Question Patrick – practical joker Simon – fear of ghosts Patrick  white bed sheet / tree rattling sounds Simon  nervous shock / heart attack

ISSUE: Can Simon sue Patrick? Can he sue under Trespass to the person? under Intentional Physical Harm other than Trespass to the person?

Wilkinson v Downton A practical joke D falsely informed P Violent nervous shock + weeks of sufferings D was liable in an action on the case for damages for intentional acts and statements which are intended to cause damage and which in fact cause damage to P

Rule in Wilkinson v Downton a two-stage analysis Subjective D must subjectively intend to shock P (or at least be reckless in accepting that risk) Objective D’s behaviour must be objectively likely ("calculated") to result in injury or illness to P No trespass, negligence and deceit Intentional Physical Harm

Other relevant cases Bielitski v Obadiak Bunyan v Jordan Chester v Waverley Corporation Janvier v Sweeney Stevenson v Basham

Analysis Intention: Patrick’s act caused nervous shock and consequent physical illness to Simon Patrick intended to cause severe emotional distress Intention to produce harm was imputed Physical harm: Bodily harm (heart attack) resulting from emotional distress was proved Indirect result: Harm  indirect result of Patrick’s act Rule in Wilkinson v Downton: Applicable

Conclusion Simon can sue Patrick based on the tort of INTENTIONAL PHYSICAL HARM