The influence of reasonableness in determining delictual or tort liability for emotional distress or mental harm in American and French Law

Abstract

American and French law, like South African law, recognises claims for emotional or mental harm. Emotional, mental or psychological harm was recognised by the courts only in the nineteenth century and even though the mind and body in a sense are considered as a unit, these types of claims are not on a par with claims for physical bodily injury. Finding delictual or tort liability for emotional, mental or psychological harm has been problematic not only in South Africa but also in the United States of America and France. Even though there are fundamental differences in the law between these jurisdictions, the broader questions the courts face is whether a claimant is entitled to claim, the amount of damages that should be awarded and how to limit liability with this type of claim. Limiting liability for emotional or mental harm is generally the main concern but the courts have found ways of using the elements of a delict or tort, or concepts such as reasonable foreseeability of harm to limit the claims. American, French and South African law recognise claims for emotional, mental or psychological harm sustained by primary and secondary victims. Thus emotional, mental or psychological harm caused directly or indirectly is compensable. In American and French law the concept of reasonableness plays an important role, whether it be implicit or explicit, in determining delictual or tort liability for the emotional or mental harm sustained. In a sense, reasonableness also plays an overarching role in determining liability. The influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law will be discussed in a forthcoming contribution. In this contribution the focus is on the influence of reasonableness in determining delictual or tort liability for emotional or mental harm in American and French law.