Traditionally emotional distress is often referred to as "parasitic" 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. 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 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. 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
Emotional harm is a psychological injury which arises due to someone's "extreme
and outrageous" 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
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:
- The act must be reckless or intentional
- The act must be extreme and outrageous
- The act must give rise to the injury
- Plaintiff must suffer severe mental injury
In Relation To Tort Law, Emotional Distress Can Be Inflicted In Four Ways:
- Assault And Battery:
In Cullison v. Medley, 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
- Intentional Infliction Of Emotional Distress:
In Wilkinson v. Downtown, 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.
- Negligent Infliction Of Emotional Distress:
In Dulie v. White, 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:
- Spurious claims:
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.
- Possibility of overcompensation:
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.
- Inconsistencies in the judicial determination of compensation:
The " extreme and outrageous behaviour"  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
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:
- Mrs. H.I. Halligua vs Mohanasundaram and Another 
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.
- Lucknow Development Authority v. Manek Gupta 
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
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
- Lucknow Development Authority v MK Gupta  1994 AIR SC 787.
- Eugene Kontorovich, 'The Mitigation of Emotional Distress Damages'
 68(2) UNIVERSITY OF CHICAGO LAW REVIEW 491,< https://www.jstor.org/stable/1600379>
accessed on 22 September.
- Mrs HI Halligua vs Mohanasundaram and Another  AIR 1951 Mad 1056.
- Russell Fraker, 'Reformulating Outrage: A Critical Analysis of the
Problematic Tort of IIED' (2008) 61 Vand L Rev 983,< https://scholarship.law.vanderbilt.edu/vlr/vol61/iss3/5/>
accessed on September 18
- Cullison v. Medley  570 N.E.2d 27.
- Wilkinson v. Downtown  2 QB 57.
- Dulieu v. White & Sons  2 KB 669.
- John J. Kircher, 'The Four Faces of Tort Law: Liability for Emotional
Harm' (2007) 90 Marq L Rev 789, < https://scholarship.law.marquette.edu/facpub/33/>
accessed on September 22.
- I de S et ux v. W de S  Y.B. 22 Edw. III, f. 99, pl. 60.
- William H. Theis, 'Intentional Infliction of Emotional Distress: A Need
for Limits on Liability, The' (1978) 27 DePaul L Rev 275, <https://via.library.depaul.edu/law-review/vol27/iss2/3>
accessed on October 14.