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Emotional Distress: An Invisible Tort

Traditionally emotional distress is often referred to as "parasitic"[1] in nature and is seen through the glasses only as a by-product of a physical injury. With the changing notions of the society, the importance of recognising emotional distress as an independent cause of action was realised. Both the physical and emotional integrity of a person can be invaded and similar loss is experienced by the plaintiff. In contemporary times this tort has gained prominence in most of the legal systems of the world and is recognised as a separate cause of action.

Origin And Evolution Of The Tort Of Emotional Distress

Under the common law, the tort of emotional distress traces its roots to the tort of assault under trespass to body in the leading case of I de S et ux. v. W de S.[2] The pioneering case involved a woman whose husband owned a bar. On finding the bar closed the defendant swung an axe at the woman but missed his mark. The defendant was held liable for assault and had to pay damages.

The Restatement of torts for the first time gave a well-defined structure to the tort of emotional distress and is currently used worldwide. The Restatement(first) stated that an individual was not liable for the emotional distress or bodily injury that resulted from conduct intended or likely to cause emotional disturbance[3] but can be applied in some cases of exceptions.

The Restatement (Second) of torts widened its scope and formally recognized that the law should protect a person's emotional integrity just as broadly as his physical integrity.[4] According to the Restatement, both physical and emotional integrity are capable of invasion and, when invaded, essentially similar loss is caused to the plaintiff, regardless of the means employed to effect the invasion.[5]

Emotional harm is a psychological injury which arises due to someone's "extreme and outrageous"[1] act. It is an actionable act under tort law, and punitive damages can be availed in the general scenario. It aims to protect the mental peace and well-being of the people from being affected defendant's wrongful conductfendant.

An extreme and outrageous behaviour is an act which is so shocking and glaring that it crosses all limits of decency for a reasonable man in the society.

Elements Of The Act Constituting Emotional Distress:

  1. The act must be reckless or intentional
  2. The act must be extreme and outrageous
  3. The act must give rise to the injury
  4. Plaintiff must suffer severe mental injury

In Relation To Tort Law, Emotional Distress Can Be Inflicted In Four Ways:

  1. Assault And Battery:
    In Cullison v. Medley[2], the plaintiff invited the defendant's daughter for soda to which she declined. After some time, the defendant and his family members forcefully entered the plaintiff's property and pointed out a gun at him. The plaintiff was awarded damages as the act of pointing the gun created reasonable apprehensions of imminent danger in the mind of the plaintiff.
  2. Intentional Infliction Of Emotional Distress:
    In Wilkinson v. Downtown[3], the defendant out of mischief informed the plaintiff that her husband's both legs are injured and was in the hospital. Upon hearing this she had a nervous shock and suffered from a serious illness. She was awarded damages as the defendant intentionally did an act which caused harm to the plaintiff which violated her right to safety and also caused physical harm to her. On the other hand, if such an incident would have happened the defendant wouldn't be liable as he would have had a proper justification for the same.
  3. Negligent Infliction Of Emotional Distress:
    In Dulie v. White[4], the defendant's servants negligently drove a horse van which dashed into the plaintiff's husband's property while she was standing behind the bar. The plaintiff, pregnant at that time, suffered a miscarriage because of fright and shock. She was awarded damages for the nervous shock suffered because of the breach of duty of care on the part of the defendant which the defendants owed to the plaintiff.

Limitations Of Remedy For Emotional Distress

With the expansion of the tortious liability of emotional distress, the courts have blatantly failed to realise its pitfalls which undermine the country's judicial system and severely affect the rights of the defendant.

Some of the most conspicuous limitations of this remedy are discussed below:
  1. Spurious claims[1]:
    As a psychological injury it is inconspicuous and may lead to many dubious claims. The injury caused is hard to prove and there is no fixed standard to gauge the same. The claims made may be malicious or exaggerated which are hard to ascertain leading to violations of the rights of the defendant.
  2. Possibility of overcompensation[2]:
    The plaintiff has to be compensated for the damages which could have been avoided by his prudence. People with insurance have a tendency to suffer greater losses than the uninsured and therefore take no measures to avoid the damages which even could have been avoided.
  3. Inconsistencies in the judicial determination of compensation[3]:
    The " extreme and outrageous behaviour" [4] is vaguely defined and hard to determine making it the Court's question. The definition of what constitutes a severe emotional injury is subjective and there is no specific benchmark to ascertain the same. Even when the genuine claims are deciphered from the falsified ones there are no specified criteria to ascertain the damages to be compensated.

Incorporation Of Emotional Distress In Indian Legal System

Tort law in India has an indelible stamp of the British Common Law with largely being uncodified. In certain circumstances however it has been able to imbibe the changes through tort legislation and this is how the concept of emotional distress has been included in the Indian scenario.

Some of the early cases from which this concept evolved are discussed below:
  1. Mrs. H.I. Halligua vs Mohanasundaram and Another [5]
    The plaintiff suffered mental anguish and agony with negligible physical injury due to the collision between the defendant's cab in which she was travelling and a tram.

    Whether damages should be awarded for psychiatric injury when not coupled with a physical injury.

    It was held that physical damages it not a benchmark for liability and psychiatric damages should be taken into account and can be ground for a separate cause of action so the defendant was held liable.
  2. Lucknow Development Authority v. Manek Gupta [1]
    The plaintiff registered for a flat constructed by the Lucknow Development Authority. The State and National Commission issued orders for the delivery of services which were denied on the ground that construction work is not a service under the Consumer Protection Act of 1986. Years of waiting caused a lot of mental agony and distress to the petitioner and other people who had their money invested in the flat.

    Whether damages should be awarded only on the basis of physical injury or mental injury should also be included?

    The court held that the construction work would fall under the purview of services and the Authority should compensate not only for the deficient services but also for the harassment and mental agony caused to the plaintiff.

The tort of emotional distress places immense responsibility on the defendant. To do away with excessive liability on the defendant the mitigation doctrine should be expanded to the realm of emotional distress too. Under this, the plaintiff should not be reimbursed for the damages which could have been avoided by taking due care after sustaining injuries. This rule also attempts to restrict the general tendency of people to sit back with folded hands when they have a cushion of insurance.

This doctrine nudges the plaintiffs to act under the impression that they are not insured to reduce the societal costs of their injuries. There is also a need for standard means for calculating damages the terms used like "extreme and outrageous" are very subjective and are open to many interpretations. Since the tort is psychiatric the damages cannot be seen and gauged there is a need to bring uniformity in the law to bring the plaintiff and the defendant on the same pedestal.

  1. Lucknow Development Authority v MK Gupta [1994] 1994 AIR SC 787.
  2. Eugene Kontorovich, 'The Mitigation of Emotional Distress Damages' [2001] 68(2) UNIVERSITY OF CHICAGO LAW REVIEW 491,<> accessed on 22 September.
  3. ibid.
  4. ibid.
  5. ibid.
  6. Mrs HI Halligua vs Mohanasundaram and Another [1951] AIR 1951 Mad 1056.
  7. Russell Fraker, 'Reformulating Outrage: A Critical Analysis of the Problematic Tort of IIED' (2008) 61 Vand L Rev 983,<> accessed on September 18
  8. Cullison v. Medley [1991] 570 N.E.2d 27.
  9. Wilkinson v. Downtown [1897] 2 QB 57.
  10. Dulieu v. White & Sons [1901] 2 KB 669.
  11. John J. Kircher, 'The Four Faces of Tort Law: Liability for Emotional Harm' (2007) 90 Marq L Rev 789, <> accessed on September 22.
  12. I de S et ux v. W de S [1348] Y.B. 22 Edw. III, f. 99, pl. 60.
  13. ibid.
  14. William H. Theis, 'Intentional Infliction of Emotional Distress: A Need for Limits on Liability, The' (1978) 27 DePaul L Rev 275, <> accessed on October 14.
  15. ibid.

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