Recent media reports of abuse raise questions about the intentional infliction of injury in tort. In this blog post, Megan Griffiths of 12KBW reflects on examples in civil claims and raises practice points.

Introduction

It is all too common to read harrowing details of sexual or non-sexual abuse in our media. It is also all too common for the same themes to come up: someone in a position of trust or authority, exploiting that position to take advantage of someone they know to be vulnerable by comparison, where a related institution is said to have done too little to identify or prevent a pattern of systemic abuse from developing and escalating. The most recent story at the time of writing relates to Gregg Wallace, against whom 45 individual allegations in the context of his work for the BBC have now been upheld in an inquiry carried out by a law firm at the request of Masterchef’s production company. Others include the late Mohammed Al-Fayed in connection with Harrods and Fulham FC, Mike Jeffries in connection with Abercrombie and the abusive acts of various staff members at the adult psychiatric hospital Muckamore Abbey.

In broad terms a survivor of abuse has three routes to a sense of closure, justice or control over what happened to them. The first is activism (whether through the media or charitable organisations) to increase awareness and to use their voice. The second is supporting a criminal investigation, which may result in the perpetrator pleading guilty or being convicted following a trial. The third is to bring a civil claim for compensation against the perpetrator, or the institution behind them if the context of the abuse allows them to do so. A successful civil claim will result in the survivor receiving financial compensation which they can, for example, put towards therapy. These three routes are not mutually exclusive.

There is a world of complexity and nuance at each stage of a civil abuse claim, whether against a perpetrator-in-person or an institution. This article focuses on one of the torts that sits behind a civil claim: the intentional infliction of injury (‘III’). This blog post addresses four questions:

  1. In causes of action seeking compensation for abuse, where does III fit?
  2. What is required to meet the three limbs of the test for III?
  3. Which circumstances are likely to meet the test for III?
  4. How should practitioners approach claims involving III?

1. Where does III fit into a civil claim arising from abuse?

Intentional infliction of injury (III) is one of the three main underlying causes of action that sits behind a survivor’s civil claim against a perpetrator-in-person or an institution for abuse. The other underlying causes of action are trespasses to the person (an assault, battery and or false imprisonment) and harassment within the meaning of the Protection from Harassment Act 1997 (‘the 1997 Act’). The same abuse can be pleaded as amounting to one or all of these underlying causes of action, as more than one can be made out by the same abuse.

The three variations of trespass to the person have distinct requirements. An assault requires the apprehension of the infliction of immediate and unlawful force by a perpetrator who is able to inflict it. A battery requires the actual infliction of that unlawful force. A false imprisonment requires the unlawful restriction of the claimant’s freedom of movement from a particular place. All three variations imply some degree of physical proximity which means many (particularly modern) forms of abuse cannot legally be characterised as trespass.

A claim under the 1997 Act requires a course of conduct i.e. conduct on more than one occasion which the perpetrator knows or ought reasonably know amounts to harassment. Claims under the 1997 Act are often riddled with difficulties, because there is no substantive definition of harassment in the Act and there is a strict 6 year rule on limitation which cannot be overridden by the exercise of discretion under section 33 of the Limitation Act 1980. There are therefore many instances of abuse that cannot be pursued under the 1997 Act or as trespasses to the person, but which can be pursued as intentional inflictions of injury if the three-limbed test is met.

2. What amounts to an intentional infliction of injury?

The tort as we know it was first introduced in Wilkinson v Downton [1897] 2 QB 57. The claimant was told that her husband had been seriously injured, which was not true and was intended as a practical joke. She had a nervous shock reaction as a result and successfully brought a civil claim for damages.

The tort was infrequently put to use until the judgment in Rhodes v OPO [2015] UKSC 32. In Rhodes the claimant alleged that this tort was made out by the defendant’s, her husband’s, book which contained harrowing details of his history of abuse which she said exposed their psychiatrically vulnerable son to a serious risk of emotional and psychological harm should he discover what was said. The claim was struck out at first instance, as overturned by the Court of Appeal on the claimant’s successful appeal, and then reinstated by the Supreme Court on the defendant’s successful appeal. The Supreme Court took the opportunity to set out the modern three-stage test that must be met for III to be made out.

Limb one: conduct without justification or reasonable excuse directed at the claimant. Conduct is not exhaustively defined, it simply must be directed at the claimant. Conduct may thus be sexual, physical, verbal, or something else. Challenges to the justification or ‘reasonable excuse’ element typically arise where it can be argued that the claimant consented to the conduct (for example, a blow inflicted during a boxing training session), or that it was justified in the context it was dealt (for example, a police officer who physically holds down someone resisting arrest). This is usually not the most controversial element of the test in claims arising from abuse.

Limb two: whereby the perpetrator intended to cause the claimant at least severe mental distress. “At least severe” here means more than trivial and can include feelings of “despair, misery, terror, fear or even serious worry”: Rhodes at [114].Recklessness as to the consequences is not enough so in that sense the bar for establishing intention is high: at[113].

It was on this basis GKE v Gunning [2023] EWHC 332 (KB)failed. In GKE, the claimant’s counsellor encouraged her to masturbate in a session or if not at home and send him a video in the course of therapy to address her psycho-sexual symptomology. Ritchie J considered that the defendant genuinely believed he was helping but had allowed his professional boundaries to become “not only blurred … but utterly indistinct”. Nevertheless, his recklessness as to its impact on the claimant fell short of the requisite intention to inflict harm. Similarly, intention was not made out in Brayshaw v Partners of Apsley Surgery [2018] EWHC 3286 (QB) by the GP’s encouragement of his patient to join a religious group by which he genuinely, albeit misguidedly, meant to help her well-being and mental health: at [58].

There are some circumstances in which the consequences are “so obvious the perpetrator cannot realistically say that those consequences were unintended”: Rhodes at [112]. The “so obvious” category was found to apply to sexual messages and requests for indecent images sent by a deputy headteacher to a pupil in ABC v WH [2015] EWHC 2687 (QB) at [89]. It seems to this author that the “so obvious” category will continue to be available in many abuse claims, at least where the abuse is solely for the perpetrator’s sexual or other gratification rather than any purported assistance of the claimant.

Limb three: which in fact caused the claimant to suffer a diagnosable injury. Although there is no need to prove at limb two that the perpetrator intended to cause a diagnosable injury as a result of the abuse, this must in fact have been caused at limb three to complete the tort. Therefore, a claimant who can only prove that they suffered severe distress falling short of a diagnosable psychiatric injury (in the opinion of an expert psychiatrist) will fail to establish the III tort. There is no restriction in law on when that injury must be suffered to meet this limb of the test. 3. Examples of intentional inflictions of injury The following broad categories are capable of amounting to intentional inflictions of injury, caveated as always by the truism that each case will turn on its own facts.

Body-shaming. Megan Griffiths and Nina Ross of 12KBW have represented clients who attended prestigious ballet schools and reported a toxic culture with an unhealthy obsession over thinness (rather than fitness), perpetuated by their teachers who made comments about their body shapes. These clients developed eating disorders (and other psychiatric injuries) as a result. The verbal body-shaming was pleaded as intentional inflictions of injuries, with expert psychiatric evidence supporting the causation of diagnosable injuries. Their settled claim against the Royal Ballet School was widely reported by the media and other claims are ongoing.

Controlling and coercive behaviour. This plainly falls within the tort of III and is the basis on which several women are bringing civil claims against Andrew Tate. Megan has represented several individuals whose abuse included degrees of controlling and coercive behaviour perpetrated by teachers and religious figures, which is clearly capable of amounting to the tort.

Indecent exposure. A recent example is Gregg Wallace, against whom three allegations of being in a state of undress were upheld in an inquiry carried out at the behest of Masterchef’s production company. This usefully illustrates the first two limbs of the test. In relation to the first limb: if the women had consented, or Wallace had reasonably believed that they consented to him exposing himself, then the first limb would not be made out. This seems unlikely given that their allegations were upheld. In relation to the second limb: Wallace’s public position (in one of its milder iterations reported by the BBC: see elsewhere his piece for the Guardian) has been “I never set out to harm or humiliate. I always tried to bring warmth and support” i.e. a potential challenge to the second limb if a court were to accept his evidence on his intention. But it seems to this author that, subject to the individual facts of cases, uninvited indecent exposure is likely to fall under the “so obvious” category of intention in any event.

Revenge porn and unwanted sexting. In FGX v Gaunt [2023] EWHC 419 (KB),the claimant alleged that the defendant’s covert recording of her whilst naked, and sharing of those images online, amounted to intentional inflictions of injury. In lieu of a response from the defendant, the court entered default judgment and assessed her damages at just under £100,000. Whilst FGX does not give us any authoritative analysis of the merits of her claim as an intentional infliction of injury, it is an exemplar use of the tort which can be replicated in future cases. Similarly, a deputy headteacher’s sexual messages to a pupil, and encouragement of her to send him the same together with indecent images, amounted to the tort in ABC mentioned above.

Exorcisms and conversion therapy. A case was recently settled by Slater & Gordon on behalf of a man who was subjected to conversion therapy by a local priest, thought to be the first settlement of its kind. Properly applying the test for an intentional infliction of injury, it is easy to see how this can be satisfied in this context.

Grooming without physical sexual abuse. Often grooming comes before a sexual assault and forms part of the context of that main abuse (which can itself inform the position on vicarious liability depending on the nature, severity and link between that grooming and the ultimate assault). But a perpetrator does not always end up committing physical sexual abuse following grooming: whether because they are intercepted by the authorities before they can do so, because their victim realises what is going on and distances themselves, or because their attention shifts elsewhere. In such cases the grooming itself can be an underlying cause of action, amounting to an intentional infliction of injury and giving rise to damages for the resultant psychiatric harm. This is likely to be more straightforward where the claimant is a child than an adult.

Isolation. It is common for cult members to be turned against their families and friends, told that family/friends do not understand the cult or cannot be trusted, and possibly told not to talk to family/friends about or whilst they are in the cult. One alleged example is Lighthouse, as investigated and reported by the BBC. If the cult member believes this narrative whilst in the cult, they very often isolate themselves from the outside world and the support network which might otherwise have been able to help them sever their ties (indeed often cults pre-empt this by telling the member that this is what their family will do, meaning that if their family does, the member falls further into the cult).

Financial abuse. It is common for cult members to be required to pay an amount or regular amounts to join, improve their status, or otherwise benefit from the cult’s offering. This may not cause their members distress at the time (if they are sufficiently indoctrinated into the cult) but may well do later on if they are able to leave the cult and look back on what happened to them. Where financial abuse happens in a religious context it can be considered as a form of spiritual abuse (discussed further below). There is a (rebuttable) presumption of undue influence between a spiritual adviser and their adherent, originating from Allcard v Skinner (1887) LR 36 ChD 145 in which a novice nun donated a significant amount of her valuables to her sisterhood and sought to recover them after leaving her vocation. This presumption is of course rebuttable if it can be proven that the circumstances enabled the donor to act with independent will. Undue influence can arise in other contexts, for example between husband and wife in Royal Bank of Scotland v Etridge (No 2) [2002] AC 773 at [93].

Spiritual abuse. The Church of England first recognised spiritual abuse as a form of “psychological and emotional abuse” in 2014, now defined on their website as “characterised by a systematic pattern of coercive and controlling behaviour in a religious context”. It seems appropriate to cast the definition widely. It could include but is not limited to financial abuse, isolation from others, encouraging over-reliance or compliance with a religious authority figure’s wishes, or conversion or exorcism therapies. Of note spiritual abuse is a category of abuse to be eligible under the Church of England’s Redress Scheme, which has only recently been finalised (five years on from IICSA’s recommendation) and is not yet open for applications. 4. Approaching intentional infliction of injury cases In most cases the intentional infliction of injury will be obvious: for example, those involving overt sexual abuse or deliberate physical assaults. But in the cases on the fringes, including those without any physical harm, each stage of the III test must be looked at more closely.

This author’s practical suggestions of where to focus the III enquiry are:

  1. Was there ultimately an injury caused? If not, then this cause of action cannot be completed at the third limb of the test. This will turn on expert medical evidence, although medical records may hint at the answer in the very earliest stages of enquiry.
  2. Look at the perpetrator’s position compared to the claimant’s, particularly if the claimant is an adult of sound mind. Was the perpetrator in some position of authority? Was the claimant particularly vulnerable to that authority? Did the perpetrator know of the vulnerability? This will inform the context of the abuse and whether it can credibly be said to meet limbs one and two of the test.
  3. Was the claimant merely persuaded, or unduly pressured, into something which amounted to abuse? If the former, in the case of an adult of sound mind (like in Samrai — see our previous blogpost), this is unlikely to amount to an intentional infliction of injury. The real issue is whether they were at liberty to agree, of their own accord, to do what they were asked to do. This ties in with the analysis of their respective positions and the extent of any authority, as conveyed to the claimant, which was exerted.
  4. Did the alleged abuse happen to other people? Can you locate them, and will they speak to you? If so, this will result in similar fact evidence to support the likelihood of the abuse having occurred, but also inform the context as relevant to the underlying tort.
  5. When did the claimant realise what happened to them? This may be years after the event and may, depending on the nature of the abuse, give rise to a date of knowledge argument on limitation.

Megan Griffiths is a personal injury barrister at 12 King’s Bench Walk who specialises in claims arising from abuse. She also practices more widely in personal injury law and claims arising from clinical negligence.

  • Read our previous blog post, written by Alex Carington of 12KBW, on Samrai v Kalia here.