Fielding v McIntyre

[2020] NZHC 2231

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-610

[2020] NZHC 2231

BETWEEN

ALISOHN JOAN FIELDING

Plaintiff

AND

ANDREW JAMES ALAN McINTYRE

Defendant

Hearing:

27 July 2020

Appearances:

Appellant in Person

D M Abricossow and H J Dempsey for Defendant

Judgment:

28 August 2020

JUDGMENT OF CLARK J

Introduction

[1]        Ms Alisohn Fielding, the plaintiff in this proceeding, claims Mr McIntyre has intentionally caused her physical and psychological harm. She seeks damages from Mr McIntyre.

[2]        Mr McIntyre has applied to strike out the statement of claim in whole or in part on the grounds it discloses no reasonably arguable cause of action, is likely to cause significant prejudice and delay and on the basis the proceeding is an abuse of process. An accompanying application seeks security for costs.

FIELDING v McINTYRE [2020] NZHC 2231 [28 August 2020]

Strike-out principles

[3]        The principles which apply to a strike-out application are settled and uncontentious.1 They are accurately summarised in the defendant’s submissions:

(a)Pleaded facts, whether admitted or not, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b)The cause of action must be clearly untenable.

(c)The jurisdiction is to be exercised sparingly and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(e)The Court should be particularly slow to strike out a claim in any developing area of law.

[4]        Accordingly, for the purposes of the strike-out argument, the facts upon which the plaintiff’s claim is based must be accepted. The question is whether those accepted facts disclose a reasonably arguable cause of action.

The statement of claim

[5]        Ms Fielding is not represented. She has approached five lawyers. One of the them guided her towards the tort of intentional infliction of harm. I mention that because while it is reasonably clear from Ms Fielding’s concise statement of claim that her action for damages is based on this tort, it is not completely clear that the tort lies at the heart of her three causes of action.

[6]        The following matters are pleaded. When Ms Fielding met Mr McIntyre in late January 2016, she was still grieving the loss of her mother who died in

1      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

October 2015. She had been referred to a mental health professional for assistance and was prescribed antidepressants to help her deal with her grief. Ms Fielding pleads she was referred to a psychologist although during the hearing Ms Fielding clarified that her doctor referred her for psychiatric help for her grief.

[7]        Ms Fielding claims Mr McIntyre was aware of her pre-existing vulnerability and that he owed her a duty of care pursuant to which “he had an obligation to take responsible care to avoid causing [Ms Fielding] harm, where it was reasonably foreseeable that his actions may affect another person”. Ms Fielding claims $120,000 as a consequence of suffering “from his negligence” while the two were in a relationship.

[8]        Under the second cause of action, Ms Fielding pleads that Mr McIntyre was aware of her physical issues and assisted her on her visits to Wellington Hospital for appointments and surgeries and the like. Ms Fielding has a compromised immune system and is required to have monthly blood “infusions”.

[9]        Ms Fielding pleads she did not consent to Mr McIntyre having other sexual partners during their relationship, particularly because of her compromised immunity. Yet he did so. Ms Fielding says there was no justification for his conduct “where it was likely to cause physical and psychiatric harm”. Ms Fielding pleads that this mental and physical abuse amounted to a wilful infringement of her right to personal safety.

Mr McIntyre’s conduct directly caused distress, humiliation and misery to [Ms Fielding] distorting the truth to mutual acquaintances in the small community where we both live and to the Kapiti Police, with intentional malice; desiring a specific outcome damaging to her psychiatric health and causing emotional distress and loss of job prospects.

[10]      Ms Fielding pleads she was diagnosed with post-traumatic stress disorder as a result of Mr McIntyre’s infidelities and that he allegedly had unprotected sex with other women. This, it is said, put Ms Fielding at risk due to her compromised immune system and at risk of emotional harm due to her mental and physical conditions. As a result of Mr McIntyre’s alleged philanderings directly causing her emotional distress and physical and psychiatric injury, Ms Fielding seeks $120,000 in damages.

[11]      The third cause of action  is  based  on  the  same  narrative,  namely,  that  Ms Fielding was psychologically vulnerable when she met Mr McIntyre. He breached his duty of care through conduct that  was  deliberate  and  likely to  cause  injury. Ms Fielding pleads Mr McIntyre’s “actions were malicious, calculated and imputed intention on the basis that he recognised [she] had psychiatric injury”. He acted in a way which he knew to be unjustifiable and which would either cause intentional harm or he at least acted without caring whether he caused harm or not. For this third cause of action Ms Fielding seeks $120,000.

The evidence

[12]      Both parties have filed extensive affidavit evidence. Needless to say they each offer different accounts of the facts. I reminded counsel and Ms Fielding that in the context of a strike-out application the Court is not able to resolve disputed facts. Pleaded facts are assumed to be true although that principle does not extend to pleaded allegations that are entirely speculative and without foundation. Both Mr Abricossow and Ms Fielding submitted at various stages that the other party’s case and submissions were speculative. I resisted invitations by both sides to take me through the evidence.

[13]      I am, however, able to take notice of findings of fact in court decisions relating to Ms Fielding and behaviours as between her and Mr McIntyre. For example, in 2018 Ms Fielding faced a charge of trespassing onto Mr McIntyre’s property. The issue in the District Court was one of identification. Having viewed CCTV footage, the Judge was satisfied the person shown in the footage and stills was Ms Fielding. Accordingly, he found the charge proved and Ms Fielding guilty.

[14]      On appeal to the High Court Ms Fielding’s conviction and sentence were set aside and the case remitted to the District Court for consideration of fresh evidence bearing on the consequences for Ms Fielding of a conviction. The High Court Judge was satisfied the evidence raised a possibility that the District Court was denied the opportunity to consider granting a discharge without conviction in circumstances where that outcome may have been appropriate.2

2      Fielding v Police [2018] NZHC 2222 at [27].

[15]      On return to the District Court Ms Fielding was convicted and sentenced. The District Court Judge found that two factors aggravated Ms Fielding’s offending:

(a)She made considerable efforts to disguise herself, suggesting the offending was premeditated and planned; and

(b)There were five trespasses on the property and Ms Fielding was doing different things on each occasion.3

[16]      Ms Fielding appealed once more on the grounds the Judge was wrong to refuse her a s 106 discharge without conviction. On appeal, Cull J considered matters that mitigated Ms Fielding’s offending such that whilst “the circumstances of [the relationship with Mr McIntyre] do not excuse Ms Fielding’s offending, they cast her actions in a different light from that of a jealous or spurned ex-partner”.4

[17]      The Judge considered Ms Fielding’s “wilful trespass” was to be seen in light of her discovery of Mr McIntyre’s behaviour and her upset at the serious health impact it could have had on her personally.

[18]      This factual matrix, in tandem with the pleadings, is sufficient to enable me to determine the strike-out application.

Intentional infliction of harm: the law

[19]      The issue is whether a reasonably arguable cause of action is disclosed on the pleaded facts. Before addressing the tort of intentional infliction of harm, I wish to record my exchange with Ms Fielding. Because Ms Fielding is not legally represented, I gave her the opportunity to elucidate her pleadings. While it seemed that her causes of action focused on this tort, there was also a possibility she was pleading ordinary negligence. Ms Fielding confirmed the tort she sues on “is Downton”. Indeed, Wilkinson v  Downton  is  one  of  the  authorities  included  in Ms Fielding’s bundle of documents.5

3      Police v Fielding [2019] NZDC 3359.

4      Fielding v R [2019] NZHC 1472 at [38].

5      Wilkinson v Downton [1897] 2 QB 57, [1897] EWHC 1.

[20]      The rule in Wilkinson v  Downton  is  explained  in  the  Law  of  Torts  in New Zealand.6 As Baroness Hale recounted the decision “Mr Downton secured a place for himself in legal history by a misconceived practical joke”.7 Intending it as a practical joke, Mr Downton told Mrs Wilkinson that her husband had met with a serious accident and fractured both legs. She suffered a severe shock and fell seriously ill. Mrs Wilkinson had no predisposition to nervous shock. She sued. The courts did not, at the time, permit recovery in negligence for nervous shock. But Wright J held that a cause of action was made out where:8

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.

[21]      In Rhodes v OPO, the United Kingdom Supreme Court considered this “compact statement of law” and, in particular, the role and nature of intention.9 Wright J recognised that wilful infringement of the right to personal safety was a tort comprising three elements: a conduct element, a mental element and a consequence element. The issues in Rhodes related to the first and second elements. It was common ground that the consequence required for liability “is physical harm or recognised psychiatric illness”.10 And the conduct element, which a claimant has the burden of proving, “requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse …”.11

[22]Turning to the mental element, Baroness Hale explained:

81         There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. …

82         The abolition of imputed intent clears the way to proper consideration of two important questions about the mental element of this particular tort.

6      Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuter, Wellington, 2019) at 4.7.

7      Rhodes v OPO [2015] UKSC 32, [2016] AC 219 at [31].

8      Wilkinson v Downton, above n 5, at 59.

9      Rhodes, above n 7, at [35].

10 At [73].

11 At [74].

83         First, where a recognised psychiatric illness is the product of severe mental or emotional distress, (a) is it necessary that the defendant should have intended to cause illness or (b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? …

84         Secondly, is recklessness sufficient and, if so, how is recklessness to be defined for this purpose? …

[23]      The Supreme Court concluded its analysis by stating that a just balance was struck by requiring that the necessary mental element “is intention to cause physical harm or severe mental or emotional stress …”.12 This formulation of the mental element means that one who actually intends to cause another to suffer severe mental or emotional stress bears the risk of legal liability if the deliberately inflicted distress causes the other to suffer a recognised psychiatric illness. That formulation is preferable to including recklessness as an alternative to intention.13

[24]      The New Zealand Court of Appeal recently observed that the elements of the tort of intentional infliction of harm are less settled than the elements of negligence. The Court went on to say the United Kingdom Supreme Court in Rhodes identified the elements:14

… as relevantly comprising conduct directed at the claimant for which there is no justification, and an intention to cause illness or at least distress which has resulted in recognised psychiatric harm.

Decision

[25]      Ms Fielding and Mr McIntyre were in a relationship for nine months. After three months there was a two-week break then after six months Ms Fielding ended the relationship “for good”, as she put it. Ms Fielding said she had made it clear at the beginning that Mr McIntyre could not have sex with other women. Ms Fielding gave examples of the reasons why she says Mr McIntyre has no regard for women. In response to the claim that her actions are in retribution she submitted she is seeking the assistance of the High Court. Ms Fielding likened the position to taking a car onto the road: when you do so you have a duty of care. If you collide with the back of the

12 At [87].

13 At [87].

14     Taylor v Roper [2020] NZCA 268 at [78].

car you pay for the damage. Similarly, Ms Fielding explained, Mr McIntyre has to pay for the damage he has done to her.

[26]      She described her humiliation and shock seeing him in bed with another woman having unprotected sex. Following this incident Ms Fielding said she broke off the relationship. When Mr McIntyre wanted to remain friends Ms Fielding said she explained she wanted time to get over the shock of him being unfaithful. Her account of the facts is that he was in other relationships but texting her for advice. Ms Fielding said they resumed their friendship after the two-week break mentioned above but after six months she ended the relationship when she found out he was having sex with other women.

[27]      Ms Fielding says her claim is based on the fact that Mr McIntyre had a duty not to cause her foreseeable harm and the psychological harm he caused by his actions was in fact foreseeable.

[28]      Even accepting the pleadings at face value, as is generally required in a strike- out context, the legal position is clear. On Ms Fielding’s own account, her first shock was the result of finding Mr McIntyre in his own home having sex with another woman. Ms Fielding said she had been with Mr McIntyre at his home and left. But because he seemed “odd” she returned to his home. She entered his home and that is where she said she discovered him having sex.

[29]      The conduct Ms Fielding describes is not conduct directed towards her for which there is no justification or reasonable excuse. Ms Fielding obviously regarded it as a complete breach of trust between them and inexcusable for the range of reasons she has given. But in terms of the legal requirement for the conduct element it cannot be said from Mr McIntyre’s perspective, that there was no justification or reasonable excuse for behaving as he chose in the privacy of his own home.

[30]      It is also a stretch to say that the necessary intention to cause Ms Fielding physical harm or severe mental or emotional distress was present when Mr McIntyre had the very reasonable expectation of privacy in the confines of his own home.

Ms Fielding does not say that he expected her to return. Indeed, her own explanation is that she only returned and entered his home because he seemed odd.

[31]      As to the reasons for Ms Fielding finally ending the relationship and being further harmed at this point, once again Ms Fielding had visited Mr McIntyre at his home. She said she did this on two occasions and on both occasions he told her he was having sex with other women. In other words, Ms Fielding was not confronted by Mr McIntyre being engaged in an act of intimacy with another but says she “found out about the sex with other women” after the fact. Even if Ms Fielding were able to prove that, at the outset, Mr McIntyre committed to not having sex with other women, disregarded her feelings about that, put her at risk medically and psychiatrically from doing so, and was aware that she was emotionally or psychiatrically “fragile”, the threshold of actual intention to cause illness or severe distress resulting in a recognisable illness is not made out. Recklessness is insufficient.

[32]      It follows that the statement of claim discloses no reasonably arguable cause of action and must be struck out. That being the result it is unnecessary to address the application for security for costs.

Disposition

[33]The statement of claim is struck out.

[34]      Having succeeded in his application, Mr McIntyre is entitled to 2B costs. If costs are unable to be agreed the parties may submit brief memoranda not exceeding four pages, the defendant’s within 15 working days of this judgment and the plaintiff’s within 10 working days of receipt of the defendant’s memorandum.

Karen Clark J

Solicitors:

Morrison Kent, Wellington for Defendant