The Liability of a Practical Joker Who Likes to Scare His Friends - Coursework Example

?Advise Jeremy of his liability Jeremy’s act has resulted in Annie’s suffering a heart attack though she has fully recovered after six weeks of stay in a hospital. Jeremy did not seriously intend to harm her but because of her weak heart, Annie suffered given the fact that Tess did not suffer from any harm for the act of Jeremy. As this act lacks mens rea, it would not amount to a crime. But in law it could be a civil wrong known as tort. Paradoxically, Jeremy’s act falls under the category of intentional tort in that an unintended harm (except as a practical joke) becomes an intentional tort. In this context, it was once considered that mere words could not amount to assault as was observed in R v Meade and Belt 1 until the decision in R v Ireland 2 that exposed the fallacy in criminal law. Thus, in R v Ireland, it was observed that words that could create a sense of imminent battery would tantamount to a tortuous assault. The present case of Jeremy draws a parallel to the situation found in Wilkinson v Downton 3 wherein the defendant had not intended to harm the plaintiff but the manner in which he conducted himself caused serious harm to the plaintiff. The defendant as a practical joke made an untrue statement to the plaintiff that her husband had met with an accident with serious injuries which information caused in her nervous shock with resultant physical illness which was the basis for cause of action to proceed against the defendant. Wright J took serious view of the practical joke played by the defendant as an act “wilfully done” and “calculated to cause physical harm to the plaintiff ... which in fact caused physical harm to her”4 As the defendant’s intention to harm the plaintiff was not clear as his act was merely intended as a joke, Wright felt the need to impute the intention and characterized the defendant’s conduct as a case of negligence to justify his ruling against him. It may be relevant to quote here the Australian case of Carrier v Bonham 5 wherein it was observed by McPherson J that intentional conduct wholly or partly were attributable to actionable negligence. Thus, speeding in a residential locality would amount to an intentional act although there is no actual intention to damage the properties or injure persons en-route which the Australian court likened to what the defendant did in Wilkinson v Downton 6 McPherson J further says that what the defendant in Wilkinson v Downton said were weasel words that could convey a meaning far beyond the ordinary in an objective rather than subjective sense thus recasting Wilkinson v Downton as a case of negligence. In other words, the utterances or actions of a practical joker cannot be taken as subjectively intended to cause more harm than a fleeting or short term one. The author emphasizes that the decision of Wright J in Wilkinson v Downton was influenced by the likely harm possible to occur from a joke which is central to decide on negligence cases. However, Wilkinson v Downton has been traditionally recognized for the type of intentional tort sui generis which the case of Jeremy here can be likened to. The reasoning of Wright J in Wilkinson v Downton was such because the Privy Council decision in Victorian Railways Commissioners v Coultas7 did not approve of damages to be awarded for nervous shock caused by negligence. Recent decision of House Lords in Wainwright v Home Office 8 , the ratio in Wilkinson v Downton was not applied since the case involved trespass to the person. In Wainwright, the plaintiff claimed for the search on her body while she was visiting her son at a prison which act on the part of the prison authorities exacerbated her depression. However, Wilkinson v Downton can be still valid to cover cases going beyond distress “falling short of recognized psychiatric harm”. Rule in Wilkinson v Downton cannot be therefore discarded as it serves to cover cases of intentional torts sui generis that cannot fit into the forms of trespass. Thus, putting spring guns or other devices intended to scaring away and injuring trespassers in the process can be classified as cases of negligence arising from intentional and reckless conduct by the application of rule laid down in Wilkinson v Downton.9 Theorizing the decisions stated above, to establish an intentional tort, there has to be the ‘intent’ to lend certainty. The intent can be specific or general. If the defendant has so acted to bring about a particular result such as causing some sort of physical or mental effect in a targeted or untargeted individual(s), it is a specific intent. Or if he knows with certainty that his act would result in such a manner, it is general intent. Thus, a good faith mistake or mental illness would not relieve an intent of its effect since the defendant must have intended to cause a particular consequence. He need not have intended to cause harm to another person. Thus, the act of the defendant “must be intentional or substantially certain” regardless of its consequences.10 In spite of controversy or unclear principle in Wilkinson v Downton, there have been modern applications of this principle. Thus, in C v D and another,11 Wilkinson principle was applied to implicate a headmaster for psychiatric injury due to sexual abuse of a student albeit without any physical contact. The student had claimed that the school headmaster and a priest had sexually abused her and also wanted to hold the school management as vicariously liable as an employer. The judge in the case found that the defendant’s touching of the plaintiff’s genitals constituted trespass to the person as battery as no case of negligence could be made against the defendants. Thus, Wilkinson principle was applied as a recognized psychiatric injury which the judge opined as attributable to several causes one of which could be attributed to the conduct of the defendants. In the result, damages of ? 20,000 were awarded besides holding the management as vicariously liable12. To restate the facts of the case, Jeremy in order to scare his friends, dressed himself in an intimidating style and jumped out from nowhere in front of them one after another. While jumping at the first person Tess he shouted that he would kill her, even before shouting at the second person Annie, she was shocked at the very jumping by Jeremy in front of her. Nothing happened to Tess as she could recognize his voice. But Annie already with a weak heart could not withstand the act of Jeremy. To recapitulate what has been understood from the foregoing case law discussion, negligence torts could be unintentional while intentional torts have to be accompanied by the tortfeasor’s intent or desire of a particular consequence to his act on another person. He need not really intend to harm the person but must be conscious of the prospect that his act would result certain consequences such as what happened in Jeremy’s case, i.e to scare them which succeeded. As such Jeremy is liable even though he never had the desire to cause injury to his friends. What is important to consider is the intention to bring about the particular outcome. To be more precise, if the defendant knows with substantial certainty that particular result would take place, he shall be liable fro the consequence of the result. Thus, if he throws a firecracker at a crowd, although he knows it will not harm anyone but will hit somebody, he has acted intentionally. On the other hand, if he has so acted without actually knowing for certain that it would harm anyone, he is considered to have acted negligently rather than having acted intentionally.13 Jeremy is not entitled to any of the absent element defences available for intentional torts such as involuntariness, physical compulsion, inevitable accident and consent as also justification defences, public policy defences and non defences.14 Jeremy can be held liable for both punitive damages as well as compensatory damages. Here, Annie has not only suffered physical harm of heart attack caused by nervous shock at the practical joke played by the defendant Jeremy. It is because Jeremy’s intention is imputable regardless of it being indirect or unintentional which causes nervous shock. Nervous shock in English law denotes psychiatric illness or injury suffered by persons both by negligent and intentional actions or omissions by the defendants. The harm suffered by Annie can be considered as a nervous shock although the term is misleading or inaccurate. It is applicable as a short term for the concept of intentional tort sui generis. In English law, courts are reluctant to award damages for nervous shock due to negligence and Annie can claim damages as caused by intentional tort sui generis. This branch of law of recent origin enables claimants to get damages as relief when a person suffers physical injury, like heart attack in Annie in this case, though not by impact by any physical force but merely by a nervous shock from what the plaintiff has seen, heard or perceived. Recall here, the case of Victorian Railway Commissioner v Coultas of 1888 wherein the Privy Council refused to recognize injury sustained through the medium of eye or ear without physical contact. In the court of appeal in Nova Scotia, nervous shock has been described by Justice Chapman as not perceived through medical diagnosis but through a diagnosis at law by courts for labelling variety of mental injuries worthy of being awarded with damages. Though limits of liabilities have varied from time to time, courts have universally excluded mere grief and sorrow. The case of Jeremy squarely falls under the case of Wilkinson v Downton wherein wife of the husband falsely reported by the defendant as seriously injured suffers “vomiting and more serious physical consequences, at one time threatening her reason and entailing weeks of suffering and incapacity” which formed the basis for plaintiff claim for damages for “mental anguish and consequent illness” suffered by her. At that time, court ordered ? 100 to be paid by the defendant to the plaintiff as compensation. As mentioned elsewhere, Justice Wright reasoned that the defendant’s wilful act was calculated to cause physical harm to the claimant thereby infringing her right of personal safety and it did materialise. The Judge held there was no justification for the act of the defendant. The defendant’s act was held as malicious in law. Although defendant appealed stating that it was a case of mere nervous shock and therefore there was no cause of action, he could not succeed. This case has therefore established that an act done with a motive to inflict physical harm is actionable if physical damages have occurred. In this case as well as in Annie’s case there is no denying the fact that physical damage has occurred. Annie as the plaintiff must show that Jeremy’s act was capable of inflicting harm to a person of ordinary firmness and that it has in fact inflicted harm. The principles of law require that accountability could be raised even if the act is not likely to cause harm on the person of ordinary sensibilities. In this particular case, Annie already had a weak heart which aggravated the consequences of unintended act of the defendant15. Conclusion Thus, Jeremy can be held liable for causing mental harm on the lines of principles laid down by Wilkinson v Downton. Annie’s weak heart cannot be a defence for Jeremy although Tess has not suffered by the same act of Jeremy. What is important to consider is the intention to bring about the particular outcome. To be more precise, if the defendant knows with substantial certainty that particular result would take place, he shall be liable for the consequence of the result as mentioned elsewhere above. Jeremy can be held liable for both punitive as well as compensatory damages. Bibliography Cases C v D and another [2006] EWHC 166 (QB) Carrier v Bonham [2001] QCA 234 in John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 243 R v Meade and Belt [1823] 1 Lew CC 184 In John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 242 R v Ireland [1998] AC 147 Victorian Railways Commissioners v Coultas [1888] 13 App Cas 222 In John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 243 Wainwright v Home Office [2004] 2 AC 406 In John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 243 Wilkinson v Downton [1897] 2 QB 57, 66 LIQB 493 In John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 242 Books John Murphy, Street on Torts (12th edition, Oxford University Press, 2007) 244 John Murphy and Christian Witting, Street on Torts (13th edition, Oxford University Press, 2012)324 Linda L Edwards, J.Stanley Edwards and Patricia Kitria Wells, Tort Law (5th edition Cengae Learning, 2012) 32 Vivienne Harpwood, Modern Tort Law (7th edition, Routledge-Cavendish, 2009) 314 Websites Weigel, Intentional torts against the person. Accessed < http://home.pon.net/jmt/law/onel/torts/emantor2.htm> 23 Jan 2013 The Lawyers & Jurists , Explain whether or not the principle of Wilkinson v Downton still has role in promoting the individual from harm (2012) Accessed 23 Jan 2013 Read More