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

Liew, YK; (2015) The Rule in Wilkinson v Downton: Conduct, Intention, and Justifiability. Modern Law Review , 78 (2) pp. 349-360. 10.1111/1468-2230.12118. Green open access

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Abstract

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.

Type: Article
Title: The Rule in Wilkinson v Downton: Conduct, Intention, and Justifiability
Open access status: An open access version is available from UCL Discovery
DOI: 10.1111/1468-2230.12118
Publisher version: http://dx.doi.org/10.1111/1468-2230.12118
Language: English
Additional information: This is the peer reviewed version of the following article: Liew, YK; (2015) The Rule in Wilkinson v Downton: Conduct, Intention, and Justifiability. Modern Law Review , 78 (2) pp. 349-360, which has been published in final form at http://dx.doi.org/10.1111/1468-2230.12118. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving.
Keywords: OPO v MLA [2014] EWCA Civ 1277, Wilkinson v Downton, Actual intention, Recklessness, Imputed intention, Freedom of expression, Justifiability
UCL classification: UCL > Provost and Vice Provost Offices
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of Laws
URI: http://discovery.ucl.ac.uk/id/eprint/1460156
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