"The law has long recognised that unreasonable interference with the rights of others is actionable in tort". 1 Pursuant to this highly gen- eralised and infinitely ...
Feminist Legal Studies Vol.I no.2 [1993]
CASE NOTES HARASSMENT AND THE LAW OF TORTS: K H O R A S A N D J I A N v. BUSH" "The law has long recognised that unreasonable interference with the rights of others is actionable in tort". 1 Pursuant to this highly generalised and infinitely contestable statement made during the course of one of the many cases arising from the bitter and prolonged 19841985 miners' strike, Scott J., holding that working miners (strike breakers) had a right to use a public highway without being subject to "unreasonable harassment" by strikers, granted an interlocutory injunction to restrain the strikers' actions. The absence of any traditional tortious category by which to characterise their behaviour (consisting mainly of verbal abuse and "intimidatory" silences) did not deter Scott J. from finding sufficient evidence of an actionable legal wrong to justify restraining behaviour which he clearly found both offensive and intolerable. Thus, capitalising on the essential fluidity of the common law, Scott J. championed the working miners' cause by driving a coach and four through the traditional legal requirement that a suit in private nuisance requires a legal interest in the affected land. 2 Sexual harassment is behaviour which most women find offensive and intolerable. Yet traditionally, the law of torts has been slow 16 February 1993: Times, 18 February 1993; Independent, 17 March 1993. Thomas v. N.U.M. [1986] Ch. 20 per Scott J. at 64. The strikers were interfering with the strike breakers' use of the highway. Thus, there was no infringement of private property rights in the traditional sense required by private nuisance. Insofar as there was an obstruction of the highway constituting public nuisance, a private action would not normally arise absent proof of 'special damage' suffered by the plaintiff(s). Nevertheless Scott J., asserting the right of all citizens to use the highway without being subject to harassment by others, contended that a cause of action arose: The tort might be described as a species of private nuisance, namely unreasonable interference with the victim's rights to use the highway. But the label for the tort does not, in my view, matter... For further discussion of the judgement, see Joanne Conaghan and Wade Mansell, The Wrongs of Tort (London: Pluto, 1993), 114-117.
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JOANNE CONAGHAN, JANE HINDE, DEBORAH CASS
to characterise such behaviour as a legal wrong absent offensive physical contact (battery) or the immediate threat of it (assault). Persistent harassment in the form of offensive sexual comments, solicitations and insults, even threats of physical violence not properly described as 'immediate' (for example because they are communicated over the telephone), are generally regarded as giving rise to no legal claim, not least because, as one commentator puts it, there is "no harm in asking '') For this reason feminists have sought to employ sex discrimination law in their pursuit of legal redress for sexual harassment. 4 However legal development in this area, dependent as it is on statute (in Britain, the Sex Discrimination Act 1975), has focused almost exclusively on remedying the wrong of sexual harassment in the workplace (and even then most unevenly), s Sexual harassment in the broader context has barely been addressed. Yet as the decision in Thomas shows, the common law is not so inflexible as to preclude the possibility of development in this field. If Scott J. can bend it to promote the claims of harassed strike-breakers, then surely feminist lawyers can direct it in defence of harassed women. The recent case of Khorasandjian v. Bush [1993] opens u p the possibility of such development drawing upon a number of different lines of authority, old and new, and, in company with Thomas, illustrating the power of equity, in the form of injunctive relief, to activate slow but significant substantive changes in the content of the common law. Khorasandjian involved an appeal by the defendant, a 23-year-old man, against the imposition of an interlocutory injunction granted by the County Court restraining his actions in relation to the plaintiff, an 18-year-old girl living with her parents. The relevant part of the order forbade the defendant from "using violence to, harassing pestering or communicating with the plaintiff in any w a y ..." The evidence revealed that the defendant, at one time a friend of the plaintiff but now 3
4 5
C. Magruder, "Mental and Emotional Distress in the Law of Torts", tlarvard Law Review 49 (1936), 1033, at 1035. On the limits of the traditional torts of assault and battery in the context of sexual harassment, see Conaghan and Mansell, supra n.2, at 130-138. See, in particular, C. MacKinnon, Sexual Harassment of Working Women (New Haven: Yale University Press. 1979). Porcelliv. Strathclyde Regional Council [1985] I.C.R. 177; see also Conaghan and Mansell, supra n.2, at 128-129.
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estranged, had been subjecting her to persistent harassing behaviour over a period of time including threats of violence, aggressive and abusive behaviour and alleged assault pursuant to which criminal proceedings had been brought resulting in the short imprisonment of the defendant. The object of civil proceedings b y the plaintiff was clearly to prevent the defendant from continuing with such harassment (particularly given the shortcomings of criminal law in this context). However, to succeed in her interlocutory application the plaintiff had to show that an actionable legal wrong had been committed. 6 Counsel for the defendant conceded that the injunction, insofar as it referred to threats of violence and physically intimidatory behaviour was perfectly proper being founded upon the civil wrongs of assault and battery. But in prohibiting "harassing, pestering and communicating with the plaintiff", defendant's counsel alleged that the injunction went too far, as these words did not form the basis of a civil wrong. In particular, at issue in this context was whether the court had power to grant an injunction restraining the defendant from making persistent and abusive telephone calls to the plaintiff's home. Thus, in substance, the issue in dispute was the scope of injunctive relief. Had the parties to the action been either spouses or cohabitees, then the court would have had wide powers to grant an injunction against molestation u n d e r the Domestic Violence and Matrimonial Proceeding Act 1976. 7 In the absence of such a relationship, the complaining party had to show that the defendant's behaviour, in this case the making of disturbing and repeated telephone calls, amounted to an actionable legal wrong. According to traditional tortious principles, the making of threatening or abusive telephone calls is not an assault because it constitutes no immediate threat to the physical integrity of the person. 8 6
7 8
The power of the County Court to grant an injunction (s.38 of the County Courts Act 1984) allows the court to make any order which could be made by the High Court. Under s.37 of the Supreme Court Act 1981 the High Court can grant an interlocutory or final injunction in all cases in which it is just and convenient to do so. However, this has been interpreted by the courts as presupposing the existence of an actual or potential legal claim. See The Siskina [1979] A.C. 210 per Lord Diplock at 245. For a summary of the Court's injunctive powers in this context, see Judge Nigel Fricker, "Harassment as a Tort", New Law Journal 247 (1992). W. Rogers, Winfield and Jolowicz on Tort, 13th Edn. (London: Sweet and
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JOANNE CONAGHAN, JANE HINDE, DEBORAH CASS
However such behaviour m a y a m o u n t to the tort of private nuisance if the action is so persistent as to a m o u n t to 'an unreasonable interference with the use and enjoyment of land'. However, in such a case the complaining party m u s t have a legal interest in the affected property. 9 Applying these principles strictly would lead to the conclusion that injunctive relief could not be granted to restrain the d e f e n d a n t from making harassing telephone calls to the plaintiff. However, relying on the Canadian case of Motherwell v. Motherwell, 1~ in which, inter alia, it was held that the wife of the o w n e r to the matrimonial h o m e had the right to restrain harassing telephone calls ( n o t w i t h s t a n d i n g the established a u t h o r i t y of Malone v. Laskey11), Lord Justice Dillon, speaking for the majority, held that protection in this respect should extend to the children of the matrimonial home, which, in this case included the plaintiff. Against a b a c k g r o u n d of threatened violence and assault, police intervention and criminal proceedings, Dillon L.J. viewed it as plainly absurd to a p p l y a proprietary requirement to the granting of a r e m e d y here: To my mind, it is ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he receives the calls. Thus, where the application of traditional c o m m o n law principles produces a "ridiculous" result, Dillon L.J., like Scott J. in Thomas, is h a p p y to eschew such principles in order to achieve a result more consonant with his o w n perception of w h a t constitutes justice and c o m m o n sense. 12 And yet, what is plainly ridiculous is that a person
9 10 11 12
Maxwell, 1989), 57. Rogers, supra n.8, at 556. (1976) 73 DLR (3rd) 62. [1907] 2 K.B. 141. Mr. Justice Peter Gibson, dissenting from the majority decision in Khorasandjian, insisted on the retention of the proprietary requirement: Subject to Scott J.'s obiter comments, I know of no authority which would allow a person with no interest in land or right to occupy land to sue in private nuisance. Given that the purpose of an action in nuisance is to protect the right to use and enjoyment of land .... it seems to me to be wrong in principle if a mere licensee or someone without such right could sue in private nuisance.
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in the plaintiff's position should have to rely on the tort of private nuisance, associated as it is with the protection of private property rights, to protect her from what is in fact an invasion of her physical integrity. The real issue of interest in Khorasandjian is to what extent it paves the way for the recognition of an independent tort of harassment. In Thomas, Scott J's judgement is strongly suggestive of the existence of a tort of "unreasonable harassment". 13 Indeed, so wide are Scott J's obiter remarks, that one could easily be forgiven for thinking that a tort of harassment already exists to protect persons in the position of the present plaintiff. However, in Patel v. Patel, the Court of Appeal affirmed that no tort of harassment existed in English law. 14 Thus Khorasandjian presented the Court with a new opportunity to reconsider this position. In this respect, Lord Justice Dillon does not go so far as to state that a tort of harassment exists but, in dispensing with the proprietary requirement in nuisance, he, implicitly at any rate, confers some weight on Scott J's earlier decision in Thomas. Moreover, while declining to comment upon the correctness or otherwise of Thomas, Dillon L.J. expresses some scepticism about Waterhouse's assertion in Patel (n.14, above), suggesting that it is not consistent with the actual decision in that case. is Indeed, the whole tone of Dillon L.J.'s judgement is highly indicative of a willingness to be inventive in seeking a remedy for the acts of harassment at issue in
Khorasandjian. Peter Gibson J's dissent is much more cautious but, as we shall see below, it does not close the door on a legal remedy in this context. On the particular question of whether or not a tort of harassment ex13 Supra n.l. 14 [1988] 2 FLR 179 per Waterhouse J.. For a useful summary of the present state of the law in this context, see Judge Nigel Fricker, "Personal Molestation or Harassment: Injunctions in Actions Based on the Law of Torts", Family Law (1992), 158. 15 Citing Ormrod J. in Horner v. Horner [1983] 4 Family Law Review 50 at 51, Dillon L.J. argues that the injunction restraining "molestation", approved by the Court of Appeal in Patel, includes in its meaning "such a degree of harassment as to call for the intervention of the Court". The words chosen by Judge Stockdale (the County Court Judge in Khorasandjian), namely "harassing, pestering or communicating with the plaintiff" merely express the meaning of molestation "in words which the person restrained can readily understand".
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JOANNECONAGHAN, JANE HINDE, DEBORAH CASS
ists, he is unequivocal: For my part, to the extent that Scott J. was holding that there is now a tort of unreasonable harassment, with all respect to him 1 cannot agree with him. There is no tort of harassment ... and I do not think that the addition of the adjective "unreasonable" would convert harassing conduct into tortious conduct. On the broader issue of whether or not a cause of action might exist in the circumstances arising from the case at hand he is more receptive and, like Dillon L.J., is prepared to give limited approval to the application of the principle in Wilkinson v. Downton. 16 This is a case involving the playing of a cruel practical joke on the plaintiff (by falsely informing her that her husband had been involved in an accident) which resulted in her becoming severely ill, both mentally and physically. In a suit against the defendant joker, the court recognised a cause of action despite the absence of any directly inflicted harm, a necessary requirement of the tort of trespass, holding that "a wilful act.., calculated to cause physical harm to the plaintiff ... and [which] has in fact thereby caused physical harm to her" was sufficient to ground a claim. 17 This principle was applied again in Janvier v . Sweeney TM (on not dissimilar facts) but has since been virtually ignored by English courts. In contrast, in the United States of America, Wilkinson has become the basis for the development of a tort of 'intentional infliction of emotional distress', now accepted in most American jurisdictions and codified in the American Law lnstitute's Second Restatement of Torts (1966). 19 Despite Wilkinson v. Downton, no such tort has yet been recognised by the English courts although in recent years a number of 16 17 18 19
[1897] 2 Q.B. 57. Ibid., at 58-59, per Wright J.
[1919] 2 K.B.316. Restatement 2nd, s.46: (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm to another results from it, for such bodily harm. The tort has been applied to instances of racial harassment (Alcorn v. Ambro Engineering Inc. 2 Cal 3d 493 (1970)), sexual harassment (Ford v. Revlon lnc. 153 Ariz 38 (1987)) and harassment on grounds of disability (Harris v. ]ones 281 Md 560 (1977)). See generally Conaghan and Mansell, supra n.2, at 139-144.
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commentators have urged its development. 2~ However, in 1986 in the case of Burnett v. George,2~ the Court of Appeal relied upon Wilkinson v. Downton to uphold the granting of an injunction restraining harassment by telephone calls where there was evidence that the health of the plaintiff was being impaired by "molestation or interference" calculated to cause such impairment. In Khorasandjian, Dillon L.J., while relying primarily on the extension of Motherwell and the tort of private nuisance (above), also approved the approach taken by the Court in Burnett. Peter Gibson J. went further and insisted that Burnett rather than Dillon L.J.'s application of Motherwell was the correct approach. Applying it to the case at hand, Peter Gibson J. argued that the generalised prohibition against pestering and harassing contained in the injunction was too wide and should, in accordance with the rule in Wilkinson v. Downton as applied in Burnett, be limited by the addition of words such as "by doing acts calculated to cause the plaintiff harm". Had the majority of the Court accepted this qualification, he would have joined them in dismissing the defendant's appeal. However, Dillon L.J. felt that Peter Gibson J.'s qualifying words were unnecessary, because, regarding the defendant's behaviour as a whole, it was plainly calculated to cause the plaintiff harm and, insofar as it constituted a continuing risk of danger to her health, justified the granting of interlocutory relief on a quia timer basis. 22 Moreover by granting relief on such a basis, Dillon L.J. effectively relieved the plaintiff of the burden of establishing that she had suffered 'nervous shock', that is a recognised psychiatric illness, as opposed to 'mere' distress and disturbance, which he accepts is the damage envisaged by both Wilkinson and Janvier. Thus, Khorasandjian lends support to two separate strands of authority both of which may be of future use to plaintiffs seeking to restrain the persistent telephone abuser. On the one hand there is the Dillon L.J,'s application of the tort of private nuisance, shakily supported by the otherwise highly dubious decision in Thomas v. NUM. 20 Ibid., at 147-147; F.A Trindade. "The Intentional Infliction of Purely Emotional Distress", Oxford Journal of Legal Studies 6 (1986), 219. 21 Only recently reported: [1992] 1 FLR 525. 22 A quia timet injunction is one which is granted to prevent the commission of an apprehended legal wrong in circumstances where failure to restrain the behaviour complained of is almost certain to result in the commission of such a wrong.
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JOANNE CONAGHAN, JANE HINDE, DEBORAH CASS
On the other hand, there is the potential development of, in my view, the more promising case of Wilkinson v. Downton. Its cautious application in Burnett and in Khorasandjian 23 belies the fact that the principle, namely that an action lies for the wilful commission of acts calculated to cause harm, is extremely broad in scope. In the United States, courts have sought to limit its application b y the imposition of particular conditions, such as that the act in question must be "outrageous" and that the emotional distress which results must be "severe" (above, n.19). No doubt English courts will soon be embarking upon a similar endeavour. It is important that feminist lawyers, engaged in sexual harassment litigation, make full use of the emerging principle and contribute actively to its shape and future development. Thus, Khorasandjian is a case brimming with potential. It offers a litigatory approach to those suffering from harassment, both sexually and more generally. 24 It illustrates the creative application of old, forgotten authorities such as Wilkinson and new, highly controversial decisions such as Thomas. While it is undoubtedly the case that the common law is, by tradition, insensitive to the particular wrongs suffered by women, its essentially dynamic and indeterminate nature render it accessible to the stratagems of the creative lawyer. Although ideologically steeped in the politics of the individual, tort law can be responsive to the politics of gender. Khorasandjian also reveals the way in which equity and in particular the use of the interlocutory injunction can over time change the substantive content of the common law. When Scott J. in Thomas first dispensed with the proprietary requirement in private nuisance in order to grant an interlocutory injunction to protect strike breakers, it was tempting to view the decision as 'political' rather than as a cor23 Both Dillon L.I. and Peter Gibson I. draw the ratio of Wilkinson v. Downton fairly narrowly. Dillon L.J. asserts that it establishes that: false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause physical injury to the person to whom they are uttered as actionable. Peter Gibson J. accepts the interpretation posed in Burnett: ... where there [is] evidence that the health of the plaintiff is being impaired by molestation or interference calculated to create such impairment ... relief would be granted by way of an injunction to the extent that it would be necessary to avoid the impairment of health. 24 The harassment in Khorasandjian itself is not characterised at any point as 'sexual'.
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rect application of legal principle. Yet subsequent cases have been curiously reluctant to c o n d e m n the decision outright, 2s and in Khorasandjian, while Dillon L.J. is careful not to base his decision on Thomas, he follows essentially the same technique-. The end result is that the common law assertion that a suit in private nuisance requires a proprietary interest can now be properly questioned. Equity has challenged the boundaries of the common law. Joanne Conaghan University of Kent
CIVIL REMEDIES FOR CHILDHOOD SEXUAL ABUSE: Finding Ways round the Statute of Limitations and Stubbings v. Webb On 16th December 1992 the House of Lords, 1 overturning the Court of Appeal judgement 2 declared that intentional torts, i.e. rape and indecent assault, fell within the category of assault and trespass to the person and could not be subsumed within negligence and a breach of d u t y of care: thus claims had to be commenced within six years under the Limitation Act 1980 without the statutory exceptions. Hitherto, claimants have been able to request the court to disapply the time limit for personal injury actions on four grounds: discretion; 3 delayed discovery, i.e. date of knowledge; 4 legal and mental disability; 5 fraud, concealment and mistake. 6 This decision has serious implications not only for adult survivors of child sexual abuse wishing to sue in the civil courts for damages, b u t also for people w h o have been abused within relationships of trust, be it professional or otherwise. 7 25 See, for example, News Group Ltd v. SOGAT '82 [1987[ I.C.R. 181. 1 Stubbings v. Webb [1993] 2 W.L.R. 126, House of Lords. 2 Stubbings v. Webb [1992] Q.B. 197, Court of Appeal. 3 S.33of the Limitation Act 1980. 4 S.11(4),ibid. 5 S.28,ibid. 6 S.32,/bid. 7 See also the case which upheld the right of the The Criminal Injuries Compensation Board to refuse to pay damages to adult survivors of child sexual abuse, where the attacks occured before 1979 and where the victim
