Action on the Case of Wilful Injury

Action on the case for physical injuries or nervous shock (which isn’t trespass)

Action on the case: Refers to actions based on injuries that are caused indirectly or consequentially.

Trespass involves the intentional infliction of a direct injury on the plaintiff. It is possible to intentionally inflict an injury on the plaintiff indirectly.

- Where the injury is direct and intentional there is a basis for trespass (for instance a D hits the plaintiff).

- Where the injury is intentional but indirect (for instance D intentionally sets a trap that causes injury to P), there is no trespass. The P can however sure in an action on the case



Action on the Case for Indirect
Intentional Harm: Elements

    * D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P

    * The elements of this tort:

                        – The act must be intentional
                        – It must be one calculated to cause harm/damage
                        – It must in fact cause harm/actual damage

    * Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause

o The intentional act may be deliberate and preconceived as seen below in

Bird v Holbrook (1828) - Indirect Intentional Injury

Facts: P (young boy) was chasing a hen, the hen went over a fence and the P followed the hen over - behind the fence was the D’s garden who took great pride in it - D had set up a spring loaded gun to deter anyone who wanted to ruin his garden, which P triggered and consequently was injured by it.
Held: D is liable and the P succeeded and recovered damages because use of a gun could not be regarded as being within the landowner’s privilege to take reasonable measures to eject or deter trespassers.

o It may also be inferred or implied; the test for the inference is objective established in the Wilkinson v Downton case:

[Important case]

Wilkinson v Downton (1897) - Where the Defendant intends no harm from the act, but the harm caused is reasonably foreseeable, the Defendant’s intention to cause the resulting harm can be imputed/implied.

Facts: D by way of practical joke told the P falsely that her husband has been seriously injured. Because of her emotional distress she suffered prolonged nervous illness (nervous shock which is regarded as actual damage)
Held: Wright J: “the defendant has willfully done an act calculated to cause harm to the plaintiff…and has in fact thereby caused harm to her…the willful injuria is in law malicious, although no malicious purpose to cause hard which was caused nor any motive of spite was imputed to the D” P was awarded damages because there was an intention to inflict shock.

Bunyan v Jordan - Wilkinson principle applied, but liability didn’t exist – no reasonable foreseeability by Defendant

Facts: The Plaintiff, who has no relation to the Defendant, hears the plaintiff threatening suicide to his sons to put emotional pressure on them. P knew D had a revolver on him and soon after the threat the P heard a shot. In consequence, she suffered nervous shock. D has no intention of suicide and only shot revolver to create a scare.
Held: HC held that the in the circumstances there was no reasonable foreseeability of a person in the P’s circumstances suffering nervous shock. Thus, liability could not exist under the Wilkinson v Downton principle.

Stevenson v Basham - Wilkinson principle applied, liability DID exist – intentional act by D

Facts:  D said “ill have you out within 24hrs if I can’t get you out I’ll burn you out” - this was said to P’s husband - P was not
there when the shouting match occurred - P was in bed and overheard it - was pregnant at the time and was genuinely afraid - suffered hysteria and as a result this led to a miscarriage
Held: That it was an intentional act in this circumstance

The Scope of this Rule

    * The rule does not cover ‘pure’ mental stress or mere fright
    * The act must be reasonably capable of causing mental distress to a normal* person:

                        - Bunyan v Jordan
                        - Stevenson v Basham

The Scope of Intentional Torts to the Person

    * Trespass:
                        –Battery,
                        –False Imprisonment
                        – Assault

    * Action on the case (Wilkinson v Downton)


ONUS OF PROOF       -          Always Discuss in exam for Trespass

In Trespass: the rule traditionally is that the plaintiff need prove only the direct interference arising from the Defendant’s act. The burden of proof was then on the D to show either that the act was involuntary or that the D acted neither intentionally nor negligently in relation to the interference.

In the action on the case: The burden of proof of fault lay on the Plaintiff



· Depending on whether the injury occurred on or off the highway (McHale v Watson; Venning v Chin)

McHale v Watson - Trespass (off highway) – D had to prove absence of intent/negligence

Facts: Defendant had thrown a sharpened piece of steel at a wooden post, the metal had either missed or glanced the poll and struck the P in the eye
Held: The burden of proof in an action of trespass lay on the D to show that he/she was not at fault (neither intentional, reckless nor negligent)

Venning v Chin - Highway Trespass – P had burden of proof.

Facts: Woman was struck by a car walking across a suburban street - there was not enough evidence of negligence to prove in this case
Held: In the case of a highway trespass, the burden of proof of fault, whether in the form of intention al or negligent conduct, lay on the plaintiff, despite the fact that in non-highway trespass the defendant had the burden of proof.

· The current Australian position is controversial but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury:

                                    - Hackshaw v Shaw
                                    - Platt v Nutt

IMPACT OF THE CIVIL LIABILITY ACT

Section 3B Civil liability excluded from Act

        (1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

            (a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other  sexual misconduct – the whole Act  except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

Section 3B Civil liability act - APPLIES BECAUSE OF PART 7

Civil liability act does focus heavily on negligence but it does not apply to intentional torts except part 7 - goes to self defence and recovery of damages by criminals…