For the first time, the High Court has awarded damages for sexting. The case of ABC -v- (1) West Heath 2000 Limited and (2) William Whillock, hit the national headlines recently when a claimant who had sent explicit texts and images to her teacher recovered £25,000 damages for intentional infliction of harm. This was a remarkable decision and one that must be treated with caution. Liam Doherty explains why.

The case

Mr Whillock was vice-principal and child protection officer at a special educational needs school attended by the claimant between 2006 and 2011. In 2010, the claimant’s mobile telephone was found by another member of staff, who discovered 18 sexually explicit text messages and 20 indecent photographs sent by the claimant to Mr Whillock, all of which had been exchanged while the claimant was aged 17.

The claimant subsequently sued both the school and Mr Whillock for personal injuries caused by sexual assault, rape, grooming, and being encouraged to exchange messages of a sexual nature.

In relation to the explicit text messages and photographs, the court found that the required three elements of the tort of intentional infliction of harm (as prescribed by Wilkinson -v- Downton and reformulated by the Supreme Court in Rhodes –v- OPO ), were made out, namely:

  • ‘Conduct’ - comprising conduct (or words) directed towards the claimant that was not justified, or for which there was no reasonable excuse.
  • ‘Mental’ - an intention to cause severe mental or emotional distress (or physical harm).
  • ‘Consequence’- causing physical injury or a recognised psychiatric illness.

In this claim, the court found that Mr Whillock had emotionally manipulated the claimant by encouraging her to send indecent images of herself and engage in ‘sexual banter’ in the texts. These actions had consequences or potential consequences which the court found to be so obvious that it could not realistically be argued that they were unintended.

In relation to the alleged assaults, the court found that Mr Whillock cuddled, kissed and digitally penetrated the claimant but there was insufficient evidence of the more serious allegations, namely oral sex and rape. The court awarded the claimant damages for pain, suffering and loss of amenity of £35,000 in total, £25,000 of which was to compensate for the Rhodes(intentional infliction of harm) aspects of the claim.

Implications

The findings in this case provide a stark illustration of why consent on the part of a claimant is such a live issue in abuse cases. Consent is vital in establishing whether the ‘conduct’ element (as per Rhodes) in cases such as these is indeed tortious.

It is important to note that it was only shortly before the trial in this case that an application was made to amend the defence so as to raise the issue of consent. If the application had been allowed the court would have needed to vacate the trial, and it was therefore refused. It followed that, regardless of the fact that the messages were sent by the claimant when aged 17, all proven ‘sexual activity’ between the claimant and Mr Whillock had to be treated by the court as abusive.

The ‘mental’ element prescribed by Rhodes also presents scope for debate in similar claims. It is important to remember that the messages sent by the claimant to Mr Whillock were not shared or published by him. On that basis, was it apparent on the facts that Mr Whillock intended to cause severe or emotional harm? The claimant remained ‘fond’ of Mr Whillock by the time of the trial and had declined to cooperate with police. She was encouraged by her father to make a claim. Following Rhodes, if Mr Whillock had proved that he genuinely believed that what he was doing was harmless then, on exactly the same facts his conduct could not be considered tortious.

In commenting on the case, the NSPCC recognised that ‘there is a danger young people could just use this as a way to get cash by suing one another’, which provides a good benchmark of the legitimate concerns regarding this judgment.

Finally, beyond the legitimate concerns that any award at all should have been made in respect of the explicit messages, the level of that award, relating solely to ‘sexting’, simply does not correlate with precedent. Further, it does not sit comfortably with the judge’s valuation of the remainder of the claim. We await developments in this area with interest, as further claims involving ‘sexting’ seem bound to follow given the high profile nature of this judgment.