What is the test for making out a tort?

The trial judge’s conclusion that the second element of the tort was made out must be set aside for an additional reason. In establishing the tort it must be shown that the defendant desired to produce the kind of harm that was suffered or knew that it was substantially certain to follow. In the seminal case of Wilkinson v. Downton, the court further noted at p. 59 that the defendant’s conduct must be “plainly calculated to produce some effect of the kind which was produced” (emphasis added). It is clear, as the trial judge observed, that where the tort is established, the plaintiff is entitled to recover the full extent of the damages suffered even if they could not have been anticipated. As indicated in Wilkinson v. Downton, “it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs.” The extent of the harm need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow.