Judgement Briefs

Tort Law

Rhodes v. OPO

[2015] UKSC 32; [2016] AC 219

Citation
[2015] UKSC 32; [2016] AC 219
Court
Supreme Court of the United Kingdom
Date
20 May 2015
Bench
Lord Neuberger PSC; Lady Hale DPSC; Lords Clarke, Wilson and Toulson

Facts

  • • James Rhodes, a concert pianist and author, wrote an autobiographical book titled Instrumental.
  • • The book described the prolonged sexual abuse he suffered as a child and its later effects, including mental illness, addiction, self-harm and difficulties in his personal relationships.
  • • Rhodes intended to publish the book for a general adult readership.
  • • His twelve-year-old son lived in the United States with his mother and had been diagnosed with several developmental and behavioural conditions.
  • • The mother believed that the graphic contents of the book, or extracts later reproduced in the media, could cause the child serious psychological harm.
  • • Proceedings were commenced in the child’s name seeking an injunction preventing publication of the disputed passages.
  • • The child relied on the tort originating in Wilkinson v. Downton, alleging that publishing the book would intentionally or recklessly cause psychological harm.
  • • The High Court refused the injunction, but the Court of Appeal granted an interim restriction on publication.
  • • Rhodes appealed to the United Kingdom Supreme Court.

Issue

  • • What are the modern elements of the tort recognised in Wilkinson v. Downton?
  • • Whether publishing true autobiographical material to the public amounted to conduct legally directed at Rhodes’s son.
  • • Whether knowledge that publication might cause harm was sufficient, or whether actual intention to cause severe distress was required.

Rule

  • • The tort of intentionally causing physical or psychological harm contains three elements:
  • o Conduct element: unjustified words or conduct directed towards the claimant;
  • o Mental element: an actual intention to cause physical harm or severe mental or emotional distress;
  • o Consequence element: resulting physical harm or a recognised psychiatric illness.
  • • Mere foreseeability or imputed intention is insufficient.
  • • Recklessness about the possibility of distress does not replace the requirement of actual intention.
  • • The defendant need not intend the eventual psychiatric diagnosis. Intention to cause severe distress is sufficient if that deliberately inflicted distress produces recognised psychiatric illness.
  • • The court must examine whether the conduct had a justification or reasonable excuse, especially where publication and freedom of expression are involved.

Application

  • • Rhodes’s book was addressed to a wide public audience. It was not a private message, threat or deception specifically directed at his son.
  • • The fact that the book was dedicated to the child or contained references to him did not transform the entire publication into conduct aimed at psychologically harming him.
  • • Rhodes was recounting true information about his own life and explaining how abuse and music had affected him.
  • • Publishing a truthful autobiography provided a substantial justification that was absent from Wilkinson, where the defendant deliberately communicated a cruel falsehood directly to Mrs Wilkinson.
  • • Rhodes did not expect his son to read the book while still young. The risk arose mainly because other people or media organisations might bring the material to the child’s attention.
  • • Awareness that publication might eventually distress the child was not equivalent to an actual purpose of causing severe distress.
  • • The Court of Appeal had effectively imputed intention from Rhodes’s knowledge of the expert evidence. The Supreme Court rejected that approach.
  • • There was no evidence that Rhodes desired to cause his son physical harm, psychiatric illness or severe emotional suffering.
  • • At most, he chose to publish despite being warned of a possible risk. Recklessness or foresight of risk did not satisfy the mental element.
  • • Both the conduct and mental elements were therefore missing, even before deciding whether recognised psychiatric illness would actually occur.

Conclusion

  • • The Supreme Court unanimously allowed Rhodes’s appeal and removed the restriction on publication.
  • • Publishing the autobiography did not constitute conduct of the required kind directed towards the child.
  • • Rhodes also lacked the actual intention to cause physical harm or severe emotional distress.
  • • The court rejected imputed intention and held that recklessness alone is insufficient.
  • • The decision modernised and confined the Wilkinson tort to serious, deliberate and unjustified interference with personal safety.