The Rule in Wilkinson v Downton: Conduct,Intention, and Justifiability

The decision in OPO v MLA [2014] EWCA Civ 1277 causes confusion to the rule in Wilkinson v Downton. A strong line of authorities indicates that the defendant must either have an actual intention to cause physical injury or be reckless as to the causing of such harm, the latter being determined by the likelihood of harm being caused by the defendant's act. ‘Imputed intention’ does not form a separate category of mental state. There was also a missed opportunity to develop a ‘justifiability’ criterion, by which policy considerations can be taken into account to preclude an application of the tort. This criterion ought to be developed in a principled manner, in line with the existing jurisprudence concerning human rights and with the policy limitations as developed in the context of other torts.