Oral Sex Montage Emerges and New Cause of Action
You’ll recall the galling revelation that notorious document-shredder Clayton Utz was on 7 June unable to locate an important piece of ClizzoBridgetz evidence. The firm apparently misplaced it “in an office move”. The evidence in question was a montage of images of Luis Izzo that someone (ostensibly a former colleague of Ms Styles) had placed near Ms Styles’ desk at her former workplace. The montage contained the captions:
“There is more to life than being ridiculously good looking. We hope you figure that out” and “I’m nice to look at”.
Well, we’re informed that the montage has finally surfaced and that a photograph of it was tendered on Friday as an exhibit to the amended application. We haven’t seen the montage, but with thanks to the AFR‘s weekend article on the saga, we get the general idea:
“[Ms Styles] now claims the photos “depict oral sex or something of the kind” according to the judge, who said one picture of Mr Izzo drinking out of a beer bottle and holding a burrito claims to draw an “analogy to a penis or something” by showing him “holding phallic objects”.
A burrito-dick – fantastic stuff!
As part of Friday’s application, Ms Styles sought Justice McCallum’s leave to add a further cause of action to her suit – the tort of intentional harm. For an FS analysis of this tort, see below (TIP: if you are aggrieved by an FS story and you’re prepared to spend alot of money testing conflict of laws principles in a variety of jurisdictions, this could be your ticket). As a result of the alleged tort, Styles claims that she:
became suicidal, depressed and even spent a stint in hospital after she was sexually harassed at work … Ms Styles suffered psychological damage and was admitted to hospital with a cut finger months after she left the firm. Justice McCallum asked if this was “self harm”
This reminds us all that we’re dealing with serious issues and a solitary individual pitted against Australia’s fourth largest law firm by revenue. Precisely because of the unwavering stand Ms Styles is taking against the corporate machine that is Clayton Utz, we too will be unwincing in our reportage of ClizzoBridgetz so as to remind all Australian partnerships what will happen if your employees are so aggrieved as to institute proceedings of the kind we see Ms Styles courageously litigating.
Prelude to a Kiss Nightmare
The full list of venues aside from the Sydney-side corridors of Clutz at which Ms Styles alleged harassment/victimisation is said to have occurred was reported by the AFR on the weekend. They include:
“Nestled at the foot of Australia Square and in the heart of Sydney’s vibrant CBD, Ryan’s Bar is the number 1 location to enjoy Sydney’s gorgeous climate, lively city atmosphere and an ice-cold beverage.”
“In a bid to bring a taste of Bavaria to the sunny shores of Australia, the first Bavarian Bier Cafe was launched in July 2005 with BBC York opening its doors to the city slickers of Sydney, providing the perfect meeting spot for long business lunches, after work drinks, or a relaxing dinner at the end of a busy working day.”
“The Balcony Level is the perfect sunset location to relax with a beer or nibble on a mixed tapas plate. As the sun descends, the bar heats up with a hip and happening vibe as experienced bar staff mix and muddle from our innovative cocktail list to ensure your night is memorable”.
“Thredbo is famous for apres activities and when staying at the Thredbo Alpine Hotel you have five bars within easy walking distance. There is a bar for every occasion – straight off the slopes and into the Schuss Bar for an afternoon apres session, kick back with live music in the lounge bar or kick on to a DJ at the late and lively Keller Bar.”
That’s four nightspots complete with “long business lunches”, “ice-cold beverages”, “innovative cocktails” and “late and lively” DJ beats — and, it seems, a “scorned lover” with a burrito-dick.
Where To From Here
We’re informed that Justice McCallum has directed the parties to prepare a timetable as to the future conduct of the proceedings, to be considered by her Honour this Friday (2 September 2011) at 2pm. Before the recent disputes about the pleadings (including the plaintiff’s application to amend), the matter was allocated a hearing date of 6 February 2012 on an estimate of 6 weeks. We will know more about whether this date can be maintained after Friday’s hearing.
Tort of Intentional Harm
With that background of the case in mind, we thought we would take a moment today to step beyond the ordinary gossipmongering ambit of this site to delve into the highly interesting tort of intentional harm. It is, we think, a particularly interesting area of law given the era in which we live where people are being increasingly rankled by matters incident to emerging (and converging) digitalisation. As the analysis below shows, this tort is a relatively new and unexplored frontier which, we think, is ripe for appellate consideration. ClizzoBridgetz could even be the appropriate vehicle.
Early English Judicial Consideration
The first recognised case of tortious intentional harm occurred in 1897 in the English case of Wilkinson v Downton. In that case, Wright J held that if a person intentionally engaged in an act ‘calculated’ to cause harm to another and actually did so, the injured person had a cause of action. The facts of the case were that the defendant played what he thought was a practical joke in which he told the plaintiff that her husband had been involved in a serious accident. This unsurprisingly caused the plaintiff to suffer:
a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity.
Justice Wright went on to conclude that the defendant’s conduct was calculated
to produce some effect of the kind which was produced [so that] an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.
This decision was subsequently approved 22 years later by the English Court of Appeal in Janvier v Sweeney. In that case, the defendants intended to terrify, and successfully terrified, the plaintiff, who was thereafter incapacitated for work. In finding for the plaintiff, the majority cited the following statement of Wight J in Wilkinson:
The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.
In Wilkinson, the defendant intended no harm at all, while Janvier, the intent was to terrify, but no more. In both cases, the court imputed to the defendant(s) an intention to cause the physical/psychological harm which the plaintiff actually suffered, on the premise that the conduct in question was ‘calculated’ to cause harm of that kind.
Recent English Judicial Consideration
In 1993, these principles were revisitied in Khorasandjian v Bush where the Court of Appeal was asked to consider the merits of an appeal against an injunction that had been obtained by the respondent to restrain the appellant from making threats of violence and generally harassing her. The appeal was dismissed, with Lord Justice Dillon interestingly noting that although there had not yet been any recognisable physical or psychological injury, the grant of the injunction was justified because of:
‘an obvious risk that the cumulative effect of continued and unrestrained further harassment such as she has undergone would cause such an illness.’
In 1997, the issue was again revisited in Hunter v Canary Wharf Ltd where Lord Hoffmann said:
I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence.
Lord Hoffmann reiterated this sentiment in the 2004 case of Wainwright v Home Office, where his Lordship stated:
the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation.
But his Lordship added that if damages for ‘mere distress’ were to be recoverable, imputed intention will not do – the defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. His Lordship declined to express a view on whether compensation should be recoverable, even where the plaintiff proved a genuine intention to cause distress:
In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. … Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.
The US & Foreign Summary
Over in the US, meanwhile, the tort on intentional harm has for many years been recognised by the courts (see, W L Prosser, “Insult and Outrage” (1956) 44 Cal L Rev 40; and “Negligently Inflicted Mental Distress: The Case for an Independent Tort” (1970-1) 59 Geo L J 1237.). American law has adopted an “adjectival definition” of the tort, with the Restatement of the Law (Second) Torts 2d describing ‘intentional infliction of emotional distress’ in the following way:
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 the other results from it, for such bodily harm.
So, in both the US and UK, there is authority for the proposition that emotional distress (or something short of the psychological injury necessary to ground nervous shock occasioned by negligence) can be compensable if the tortfeasor intends or recklessly causes that emotional distress to occur. But what about in Australia?
Australian Judicial Development
The High Court first considered the tort of intentional harm in the 1937 case of Bunyan v Jordan. In that case, the plaintiff had suffered psychological injury as a result of having seen the defendant produce a revolver and then having heard him say he was going to shoot someone. The High Court accepted the English authorities, but held that the plaintiff’s claim must fail because the defendant’s statement had not been made to her or in her presence. More recently, in Magill v Magill, the High Court was concerned with a claim brought by a man against his former wife for false representations made by her that he was the father of two children born during the marriage. The majority referred to Wilkinson and Janvier as examples of successful claims for damages arising out of the making of false statements. In their Honours’ view, Wright J in Wilkinson had:
preferred to recognise the cause of action as arising from an imputed intention to cause another physical harm. Likewise false words and threats uttered with a similar imputed intention to cause physical harm, including nervous shock, were held actionable in Janvier v Sweeney. Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery for nervous shock, by reference to an imputed intention to cause physical harm, a cause of action later subsumed under the unintentional tort of negligence.
The most recent domestic judicial consideration of the tort came in the 2008 Victorian Court of Appeal case Giller v Procopets. In that case, President Maxwell referred to Wilkinson and observed that in order to succeed in an action in the tort, the severity of conduct or distress need not necessarily be high. His Honour suggested that claims should instead be limited by reasonable foreseeability. At the time of making the comments, his Honour considered that there was:
“no decision in Australia or any comparable jurisdiction which would mean the claim was untenable.”
Neave JA agreed that no Australian case precluded the expansion of the tort to cover cases in which the plaintiff suffered distress, humiliation or other emotional discomfort without physical or psychiatric injury. Her Honour observed that the English courts were moving towards the American position of recognising such a tort and that it could indeed be applied in Australia to a broad range of situations including, importantly for Ms Styles’ purposes, bullying and practical jokes.
ClizzoBridgetz: Unintentional Tort of Intentional Harm Test Case?
We think many Australians feel a sense of dissatifaction with the range of remedies on offer once they are aggrieved by, inter alia, things which are said and done on the internet. Our site and the things we publish are very much at the coalface of this wider issue and it therefore interests us greatly. If something is published, read by a wide audience, but is not “defamatory” within the current judicial reckoning of the concept, what options are available? The tort of intentional harm could indeed be one – but there would need to be a clear intent to cause such harm underlying the publication. President Maxwell and Neave JA both agreed that some form of serious distress, occasioned by a deliberate act, could sound in damages. However, the third Court of Appeal Judge , Justice Ashley, believed that a recognised psychiatric injury would be required before that harm could be compensable.
We think ClizzoBridgetz could test the limits of the tort of intentional harm and we look forward to dissecting it in great detail. What do you think?
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This is novel. Not just gossip but an analysis of tort law too
Six week trial?!
The costs in the matter and the daily bad PR sound bites are going to dwarf what it would cost to settle.
She must have done something to really piss Clutz off for them to let it get to this stage.
I look forward to seeing Firmspy quoted as a legal journal in future cases!
Thanks for the summary FS.
She stood up to them where so many others have sat down and gone quietly.
@ .
There is definitely a reason why Clutz are hanging on, and that is because she harrassed him and not the other way around. She was fired for a malicious complaint.
Obviously Clayton Utz and Luis have no case to answer, otherwise this would have gone away long ago and we would not be reading about it. Clayton Utz is many things, but they are not stupid.
Agreed!
She is one of many. Difference is she has had the guts to go through with it. Clutz has caused untold damage to others who have just left without a fight. I hope she goes all the way with this.