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 only recognised by the courts in the 1800's and even though the mind and body in a sense is considered as a unit, these types of claims are not on par with claims for physical bodily injury. In fact, these types of claims can be regarded as sui generis but within the broader ambit of delictual or tort liability. 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 these types of claims. Limiting liability for emotional or mental harm is generally the main policy concern but the courts have found ways of using the elements 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 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 emotional or mental harm. In a sense also, reasonableness plays an overarching role in determing the liability. In a previous contribution, the influence of reasonableness in determining delictual or tort liability for psychiatric or psychological harm in English and South African law was discussed. 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.