Lord Justice Jackson has joined two other Court of Appeal judges in ruling that publication of a book detailing a father’s sexual abuse at school could amount to deliberately causing psychological harm to his son under the principles set out in an “obscure tort”.
The court’s decision to allow the boy’s appeal against the rejection of his application for an injunction was based on the principles set out in the Victorian case of Wilkinson v Downton. The case provides a remedy for the deliberate infliction of psychological harm by intentional statement.
“For a statement to give rise to Wilkinson liability, it is not necessary that the statement be false,” Lord Justice Jackson said.
“The essential characteristics include that the statement is unjustified and that the defendant intends to cause or is reckless about causing physical or psychiatric injury to the claimant.”
Applying the principles to the case before him, Jackson LJ said the book contained “graphic descriptions” of the abuse which the father suffered and his incidents of self-harm, and those passages were “likely to be quoted by reviewers or newspapers”.
He said that on “uncontradicted expert evidence” those passages were likely to cause “enduring psychological harm to the claimant by reason of his Asperger’s syndrome and other vulnerabilities”.
Jackson LJ said the book was dedicated to the son and was in part “specifically addressed to him” and father had full knowledge of the risks posed to him.
Delivering the leading judgment in OPO v MLA  EWCA Civ 1277, Lady Justice Arden said the son, OPO, suffered from “significant disabilities”, including ADHD (attention deficit hyperactivity disorder) and Asperger’s.
She said a new expert’s report from a psychologist who had seen the book had concluded that it was likely to have a “catastrophic effect” on the boy’s self-esteem and cause him “enduring psychological harm”.
Arden LJ said that, after his son was born, the father, MLA, suffered a “further mental breakdown”, which he attributed to his son’s birth and another one when his son went to school.
Lady Justice Arden ruled that the son had no cause of action for misuse of private information or for negligence, because there was no actionable duty of care between parent and child.
However, describing it as an “obscure tort”, Arden LJ held that there was liability for intentional harm under the principles in Wilkinson v Downton  2 QB 7.
“In that case, the defendant as a practical joke told the plaintiff that her husband had had a serious accident and broken both his legs, and that she should go to help him to a particular place in Leytonstone, which she did incurring the cost of the carriage journey and nervous shock.”
Arden LJ went on: “It is inconceivable that the law would render all intentional statements which cause psychiatric harm actionable in damages. In some cases, a person may have to tell bad news which is liable to cause psychiatric harm.
“But there may be many ways in which the court could draw the line between acceptable intentional statements or acts which cause psychiatric harm, and those which are actionable under this head.”
Lady Justice Arden allowed the son’s appeal. Lord Justice Jackson agreed, for his reasons, and Lord Justice McFarlane concurred with both.