Transnational Exploration of the Tort of Intentional Infliction of Emotional Distress

Intentional Infliction of Emotional Distress (hereinafter IIED) is a dynamic tort that provides recovery to victims of socially reprehensible conduct that causes severe emotional trauma. IIED refers to a conduct which is so extreme or outrageous that it causes severe trauma to the victim. The conduct must be intentional or reckless and one that a reasonable man can foresee to be emotionally distressful to another. The severe emotional distress can be accompanied with bodily harm or threats of bodily harm as well.

This paper focuses on the recognition of this tort in India. Another focal point of this paper is comparing the jurisprudence that exists related to IIED in England and the United States and how it has evolved in India. 

In India, tort law is largely common-law based and not statutory. Hence, there is no written document/s that defines them. Tort came to India during the British rule but it is still underdeveloped in its application and recognition. The Indian application of tort law is based on English law principles applied in India as rules of justice, equity and good conscience. Tort law in India represents a transition from the era of private vengeance by the way of criminal liability to a justice system of restorative and compensatory damages.

In England, heavy reliance was placed in the use of formalistic legal rules to determine liability in emotional distress cases fearing that leniency would open a floodgate of litigations. Early common law permitted damages for emotional distress which was accompanied by physical harm or a serious threat of such harm. Because of this, the claim of IIED also became a parasitical claim attached to physical injuries.

In Wilkinson v. Downton, the emotional distress arose out of a misconceived practical joke leading to Mrs. Wilkinson’s physical suffering (1). Downton’s conduct recklessly caused the plaintiff harm and such recklessness was readily identifiable with actual intention.  According to this established rule, A is liable if he conveys untrue information to B knowingly, and as a result B suffers mental distress or injury. Here, B’s harm must be reasonably foreseeable. 

The English law has evolved and currently stands that anything less than a recognized psychiatric injury will not fall under the rule established in Wilkinson v. Downton. Lord Hoffmann, in Wainwright v Home Office, stated that the rule, ‘does not provide a remedy for distress which does not amount to recognized psychiatric injury or severe distress or trauma (2).

Over the years, the courts have also awarded damages for liability arising with respect to a secondary victim. In Johnson v The Commonwealth, the court validated a good cause of action against the Commonwealth for the infliction of nervous shock on Johnson’s wife when she witnessed an assault on her husband (3). Along with this, emotional disturbance (4), emotional distress, mental shock experienced by secondary victims have also been compensated for and the defendants have been held to be legally responsible for damages (5).

In the U.S., IIED is a relatively new type of civil wrong which is littered with controversial opinions and jurisdictional inconsistencies (6). Historically, the judicial process in establishing this tort has changed on case-by-case basis to determine what amounts to outrageous conduct. Initially, the courts also refrained from awarding damages for IIED when mental distress was not followed by any physical injury. 

The American courts overruled the impact theory requirement for IIED where the defendant’s conduct is intentional and likely to provoke emotional disturbance. In 1948, the American Law Institute enunciated and added the tort of IIED in the Second Restatement of Torts. It reads as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm (7).

Although, this tort is widely accepted in the American legal system, there is much debate about the threshold requirement for a misconduct to be extreme or outrageous. One of the first cases of an IIED claim in the U.S. was Hustler Magazine, Inc. v. Falwell (8), establishing that public figures could not recover damages for the tort of intentional infliction of emotional distress in the absence of actual malice. Actual malice requires that the statement was made with knowledge that it was false or with reckless disregard as to whether or not it was true.

Over the years, American courts in various jurisdictions have interpreted and provided a detailed exegesis of the statutory scope for claiming damages under IIED (9). Similarly, most jurisdictions no longer require that the victim suffered physical manifestations of the emotional distress caused by the defendant.

This being said, the American courts are still wary of sanctioning free speech under the First Amendment that gives special protection to an individual’s freedom of speech and expression. Recently, in Snyder v. Phelps, the Supreme Court immunized Phelps’ and Westboro Baptist Church’s actions from any tort liability under IIED,  even though the speech involved was homophobic and reprehensibly made at a funeral (10).

Tort law, in particular IIED, is largely based on judicial interpretation. Although, in India, IIED isn’t recognized as an individual wrong, emotional distress, mental distress and mental cruelty are often compensated for in both civil and criminal cases based on case laws and precedents. Both English (mostly) and American case laws are also cited in Indian judgements to support and refute the claim for IIED damages.

In India, emotional and mental distress have derived definitions in various matrimonial and construction disputes. For instance, in Linda Constance Edwards v. William Edwards & Anr. (matrimonial dispute), the Delhi High Court said, “effect produced by the course of conduct and acts of a spouse and not the motive that is relevant. It has been rightly said that sometimes words inflict a more painful blow and cause psychological sufferings and emotional distress than physical cruelty.”(11)

Similar to the English courts, the Indian courts have also awarded damages for mental harassment, mental and emotional distress caused due to physical injury in workplace employment, construction and certain motor accident cases as well. For instance, in R.D. Hattangadi v. Pest Control Ltd. And Ors., the courts while fixing compensation payable to the victim have defined non-pecuniary damages as “they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future…(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. (12)” This is another way in which the Indian courts have brought in aspects of  IIED within the purview of law. Along with this, compensation for mental torture by the abuse and misuse of authority have also been given. 

At the same time, while the U.S. has codified IIED as tort, the lack of enactment in India has made individual claims under IIED as rare and improbable. The American and English courts have established principles for IIED compensation, but in India the claims are still parasitically attached to separate other claims under the Indian Penal Code 
(e.g. mental distress and emotional impact), Hindu Marriage Act (e.g. mental and emotional cruelty) and other legislations. But in defamation suits, the apex court has shown leniency with regards to free and authorized speech as well (13).

Adding to the lack of development of IIED as a tort is the fact that there is much faith placed in awarding or claiming punitive damages as deterrence over compensating for emotional distress as a separate claim (14). Given the modern day grievances and the impact that mere words or actions can have on people’s mental health, there is a dire need for the enactment of IIED as a tort and its development in India. 

The Author is a First Year Law Student in O. P. Jindal Global Law School (OPJGU).

1. Wilkinson v Downton, (1897), 2 QB 57
2. Wainwright v. Home Office, (2003), UKHL 53, [47].
3. Johnson v Commonwealth, (1927), 27 SR (NSW) 133. 
4. Battista v Cooper, (1976), 14 SASR 225. In this court also stated that the intended consequences of a tort can never be too remote. 
5. Janvier v Sweeney, (1919), 2KB 316; Northern Territory v Mengel (1995) 185 CLR 307; Stevenson v. Basham, (1922) NZLR 225. 
6. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, 12, at 55 n.1 (5th ed. 1984). 
7. Restatement (Second) Of Torts- 46, (1965).
8. Hustler Magazine Inc. v. Jerry Falwell, (1988), 485 U.S.
9. GTE Southwest v. Bruce, (Tex. July 1, 1999), 998 S.W.2d 605.
10. Snyder v. Phelps, (2011), 131 S. Ct. 1207.
11. Smt. Linda Constance Edwards vs Shri William Edwards & Anr., (2000).58) DRJ 731.
12. R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others, (1995) 1 SCC 551.
13. Indu Jain v. Forbes Incorporated, (2007) ILR 8Delhi9. 
14. K. Suresh v. New India Assurance Co.Ltd., (2012) 12 SCC 274.