This paper was presented as part of the Canadian Institute program entitled “Litigating Personal Injury Damages”. The claims for emotional distress are among the most challenging and difficult for the litigator. Emotional distress refers to mental or psychological trauma and can be occasioned as a result of tortious or non-tortious conduct. This paper focuses on claims for emotional distress occasioned by the negligence of others.
The claims for emotional distress are among the most challenging and difficult for the litigator. Emotional distress refers to mental or psychological trauma and can be occasioned as a result of tortious or non-tortious conduct. This paper, however, will focus on claims for emotional distress occasioned by the negligence of others1.
Personal injury claims in which the injuries are objective are relatively easy to resolve. The injury is objective, it is visible, and it is easily understood by a jury. Emotional distress claims on the other hand are quite different. They are hard to understand and even more difficult to explain. Psychological and emotional trauma from an accident results in depression, anxiety, stress and great sadness and causes or contributes to the development of psychiatric or psychological disorder. In these circumstances, plaintiff’s counsel faces the daunting task of persuading a jury that his/her client merits compensation and that these injuries are real, significant and permanent.
The aim of this paper is to discuss claims for emotional distress and to articulate strategies and tactics for plaintiff’s counsel to achieve justice for their clients.
II. Claims For Emotional Distress: Origins
Courts have awarded damages for emotional distress as far back as 1897 in the famous case of Wilkinson v Downton2 which concerned a practical joke gone awry. In Wilkinson the Defendant, as a joke, told the plaintiff that her husband had been severely injured in an accident causing her shock and resulting in a period of incapacity3.
In Wilkinson, Mr. Justice Wright enunciated the principle “that if a person wilfully does an act, calculated to cause harm to another, and thereby infringes his legal right to personal safety, and in consequence causes physical harm including mental distress, a cause of action arises in the evidence of lawful justification for the act”4. What is noteworthy about Wilkinson is that this statement of principle was made well before the Court created the tort of negligent infliction of mental distress5.
With the rapid industrialization of Great Britain and North America in the late 19th and early 20th centuries, the development of psychoanalysis and psychiatry and the experience of two world wars, medical science began examining critically the consequence of emotional distress and psychological injury as a result of a traumatic event. War experiences, in particular, have provided fertile ground for the study of emotional disturbances and disorders. Emotional disorders resulting from war, have been described as “battle or flight fatigue, shell shock, neurasthenia, war neurosis, combat exhaustion and post-traumatic stress disorder6”.
1 I wish to thank my associates Mr. Cass Litman and Ms. Tripta Chandler for their assistance in the preparation of this paper.
2  2 Q.B. 57
3 Fleming, Law of Torts, 9 Edition, p. 38; Linden, Canadian Tort Law, 7 ed., p. 54.
4 Fleming, p. 38.
6 Hoffman, B., Rochon, J., Terry J. & Thorsen A. “The Emotional Consequences of Personal Injury” 2nd ed., Butterworth 2001, at p.13 (This textbook is quoted frequently in this paper and for the sake of convenience it will be referred to as Hoffman, et al. &3147;The Emotional Consequences of Personal Injury.”)
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